Separation of Powers in the UK – Checks and Balances

In my last blog post, we looked at the three branches of power that exist in the UK and why these need to be separated. In this blog post, we will be looking at how this works in practice, considering some of the checks and balances used to ensure that no one branch gains too much power. First, we will quickly remind ourselves what the three branches are.

The Three Branches

Executive

The executive branch is the one that holds responsibility for governing. In the UK, this is the UK government, although the Scottish government, Welsh government and Northern Ireland Executive also hold some of this power in their respective countries.

Legislative

The legislative branch is the one that makes the law, as you might expect! In the UK, this is the Houses of Parliament, but the Scottish Parliament, National Assembly for Wales and Northern Ireland Assembly again hold some power.

Judiciary

The judiciary branch is the one that applies and enforces the law. In England and Wales, this is the England and Wales judiciary. Scotland and Northern Ireland each have their own judiciary.

Need for Separation

The three branches need to be kept separate to stop any group or individual from gaining too much power. For example, until the Constitutional Reform Act 2005, the position of Lord Chancellor had a role in all three branches. They were head of the judiciary, making them responsible for the appointment of judges, a member of the Cabinet and Speaker in the House of Lords. This gave the holder of this office considerable power over the three branches, so it was altered to ensure a separation of powers.

Checks and Balances

We will now look at some of the ways these powers are separated, using a system of checks and balances. For simplicity, we will focus on the UK government, Houses of Parliament and the judiciary of England and Wales.

To consider the checks and balances used, we will look at the relationship between each of the three branches. This lets you see how these checks and balances work in practice.

Executive and Legislative

The executive and legislative are very closely linked in the UK, being the government and Parliament. The Prime Minister and most of the Ministers will be Members of Parliament in the House of Commons. In addition, the Prime Minister will be both head of government and head of Parliament, as leader of the party with a majority in the House of Commons. The executive also frequently ends up with law-making powers, due to the drafting of secondary legislation being delegated to Ministers or other members of the government.

As you can see, it is difficult to keep the executive and legislative separate. However, the executive is still held accountable to the legislative, as the Prime Minister and Ministers are regularly required to appear before Parliament and answer questions.

Legislative and Judiciary

Judges have some powers to interpret law using judicial interpretation, but they cannot actually change the law. Cases can be subject to judicial review, which ensures that proper procedure is followed. They can also strike down secondary legislation that is ultra vires, meaning that it goes beyond the powers granted to it in the enabling act. However, they do not have the same power with primary legislation, as Parliament has supremacy, although senior judges have suggested that they should have the power to do so if the legislation breaches a fundamental principle.

Judges also make common law, but Parliament can check this at any time by making a new piece of legislation that overrides the common law. Parliament can also debate law without being under threat of action by the courts, such as for libel.

However, Members of Parliament should not criticise judges’ decisions and the rule of sub judice prevents Parliament from making legislation that would interfere with a case currently being heard. This also helps to keep the law clear, as it is unfair for defendants and victims if the law changes partway through their case.

Judges in senior courts also have life tenure. This means that, once they are appointed, they cannot be removed from their position for making a decision that Parliament dislike. This protects their independence and allows them to make decisions without fear of the consequences for them.

Executive and Judiciary

The judiciary oversees the actions of the executive through the process of judicial review. It checks that the executive only acts within the powers granted to it and does not overstep these. In addition, it reviews secondary legislation made by Ministers and can strike this down if it goes beyond the powers given to them in the enabling act.

Wrapping Up

I hope that this helps you understand the checks and balances in place to ensure a separation of powers. All of these together help to ensure the legal and justice systems run smoothly. Next time, we will be looking at the advantages of magistrates in England and Wales, so come back in two weeks for that!

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