In this blog post, we will be considering the separation of powers in the UK. We will start by looking at the three branches of government in the UK, bearing in mind that there are different branches in England, Scotland, Wales and Northern Ireland. We will then consider why the separation of powers is so vital.
The Three Branches
The three branches of government are the legislative, the executive and the judiciary. We will look at each of these in turn and consider what they are in England, Scotland, Wales and Northern Ireland.
The Legislative
The legislative branch is the one which actually creates and passes the legislation, hence the name. In England, the legislative is both Houses of Parliament, whereas in Scotland it is mostly the Scottish Parliament, with the Houses of Parliament still having power on particular issues. In Wales, some laws come from the Houses of Parliament and others from the National Assembly for Wales. Similarly, in Northern Ireland, some laws are made by the Houses of Parliament, with others from the Northern Ireland Assembly.
The Executive
The executive is the governing body. In England, this role is filled by the UK government. Much like the legislative, the UK government has some powers over Scotland, Wales and Northern Ireland, as well as them each having their own executive. In Scotland, this is the Scottish government. In Wales, the Welsh government acts as the executive. Finally, in Northern Ireland, the Northern Ireland Executive takes this role.
The Judiciary
The final branch is the judiciary. This is the branch that actually applies the law and it consists of all the courts. In England and Wales, the judiciary of England and Wales fills this role. In Scotland, the judiciary of Scotland make up this branch and in Northern Ireland, it is the judiciary of Northern Ireland.
Why is a Separation of Powers Needed?
Separation of powers is needed to ensure that none of these individual branches gets too much power. The idea of having three is that as soon as one seems to be getting more power, the other two can block it.
If one branch did get too much power, they would be able to prevent any of the others from checking them at all. They could choose what they wanted as law and how to interpret and apply it, effectively giving them a monopoly on law. This would mean that the system was no longer just, but there wouldn’t be any possibility of one of the other branches being able to change this and take back any of the power.
For example, if the legislative has too much power, this would mean that Parliament would also be able to apply their own laws in courts, even though this is not their area of expertise. This could lead to legislation only being interpreted literally, with no room for flexibility depending on the facts of the case and no second opinion on the law.
Alternatively, if the executive had too much power, the government would be able to force any law they wanted through Parliament, possibly without the proposed law even being discussed. This could essentially result in a dictatorship for the party in power. Parliament is supposed to be a cross-section of the population, letting everyone’s views be heard. If only the views of the party in power are represented, it is not an accurate cross-section.
Finally, if too much power rested with the judiciary, they could interpret laws however they saw fit. This would mean that they could decide what Parliament’s intention was (using the mischief rule and the purposive approach) and then apply the law in accordance with this, regardless of what the exact wording of the act was and what Parliament actually intended. Essentially, the judiciary would be making law, as well as applying it.
Any of the three branches gaining too much power would upset the whole system, making things unfair and leaving no checks and balances in place. It would also lead the system open to corruption without the other two branches to block this.
However, there is no complete division of branches in the UK. For example, the role of Lord Chancellor used to be part of all three branches, but this has since been reduced by the Constitutional Reform Act 2005, which tried to separate the three.
In addition, as the UK has no formal constitution, nothing can be entrenched. This means that no matter what measures have been put in place to enforce separation of powers, there is no guarantee that they won’t be changed.
Wrapping Up
I hope that this helps you understand the doctrine of separation of powers and why it is needed. In my next blog post, we will be looking at some of the checks and balances used by the three branches.
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