Uk Constitution: A Strict Separation Of Powers?

The UK does not have a strict separation of powers in its constitution. The UK's constitution is uncodified, meaning there is no single document that outlines the rules and principles of the state. Instead, the constitution is found through laws passed by Parliament, practices, and principles established in court decisions. The three branches of the UK government—the legislative, executive, and judiciary—are considered to function separately, with different legal powers. However, there is frequent overlap between the branches, particularly between the legislative and executive, as the Prime Minister and Cabinet Ministers work together. The independence of the judiciary is generally respected, although there are questions about the influence of the government in judicial funding.

Explore related products

Separation of Powers: A Comparative Analysis: UK, USA, India and France

$29

The Three Branches: A Comparative Model of Separation of Powers (Oxford Constitutional Theory)

$37.09 $63

On Executive Power in Great States

$24 $14.5

The New Separation of Powers: A Theory for the Modern State

$46.12 $145

Separation of Powers in the Federal Government: Overview and Perspectives (Congressional Policies, Practices and Procedures)

$73.01 $89

Examples & Explanations for Environmental Law: Energy, Climate, and Land Use (Examples & Explanations Series)

$76.95 $76.95

The UK constitution is uncodified

The three branches of the UK state are the legislative (Parliament), the executive (Government), and the judiciary (Courts). These branches are considered to function separately as they have different legal powers. The legislative branch makes the laws, the executive branch carries out the administration of the country, and the judiciary interprets and enforces the laws.

The separation of powers is important to prevent any one branch of the state from having unchecked power. While the UK's uncodified constitution does not strictly separate these powers, there is still some separation and a system of checks and balances to prevent abuses of power. For example, the independence of the judiciary is confirmed through statute, constitutional convention, and weight of opinion. Judges in superior courts cannot be arbitrarily dismissed by the executive and instead serve while in "good behaviour".

The UK's uncodified constitution has evolved over time, with the Constitutional Reform Act 2005 being a significant reform that established the Supreme Court and modified the office of the Lord Chancellor. The Human Rights Act is another important law that forms part of the UK's constitution, setting out the rights of each person and the responsibilities of all branches of the state.

In summary, while the UK constitution may not have a strict separation of powers, the uncodified nature of the constitution allows for flexibility and the evolution of practices and principles over time. The system of checks and balances helps to prevent abuses of power and ensure fairness in the UK's system of government.

The role of the Lord Chancellor

The United Kingdom does not have a strict separation of powers. The branches of the state are closely linked. For example, the Prime Minister is both the head of the executive (the Government) and generally the leader of the majority party in the legislature (Parliament).

The Lord Chancellor is a British officer of state and custodian of the Great Seal. The Lord Chancellor leads the Ministry of Justice and is the voice of the judiciary within the Cabinet. The Lord Chancellor has various functions relating to the established Church of England and must be consulted before appointments are made to ecclesiastical courts. The Lord Chancellor also officiates at a ceremony in Westminster Abbey at the beginning of the legal year in front of all the judges.

Historically, the Lord Chancellor was the presiding officer of the House of Lords, the head of the judiciary of England and Wales, and the presiding judge of the Chancery Division of the High Court of Justice. However, these roles were transferred to the Lord Speaker, the Lord Chief Justice, and the Chancellor of the High Court, respectively, following the Constitutional Reform Act of 2005.

The Lord Chancellor is involved in the appointment of senior counsel learned in the law, known as "King's Counsel". While the Lord Chancellor previously personally determined which barristers were to be raised to this rank, an independent panel now evaluates applicants and makes recommendations. The Lord Chancellor's role is to appoint the panel's members and ensure their recommendations comply with due process, fairness, and efficiency.

The Lord Chancellor also usually serves as the principal or senior lord commissioner when the sovereign appoints lords commissioners to act on their behalf, such as formally declaring in Parliament that royal assent has been granted or proroguing Parliament. In this role, the Lord Chancellor wears parliamentary robes and a tricorne hat.

Judicial independence

The UK does not have a strict separation of powers, as the branches of the state are closely linked. For example, the Prime Minister is both head of the executive (Government) and generally the leader of the majority party in the legislature (Parliament).

The independence of the judiciary has never been questioned as a principle, although the application is problematic. The Constitutional Reform Act 2005 placed Ministers under a statutory duty to uphold judicial independence, yet the Act does not define judicial independence. If it is to be upheld, it must be clearly understood by all those who are required to protect it.

In England and Wales, judges in superior courts cannot be arbitrarily dismissed by the executive, instead, they serve while in "good behaviour". Those in lower courts have similar protection from dismissal without due cause. Most tribunal members cannot be dismissed by members of the government department of which they are a part. This is important in cases of judicial review and other judicial methods of preventing government abuse of power.

The fundamental concept of judicial independence came into being in England and Wales in 1701 with the enactment of the Act of Settlement. In 1995, the group of Asia-Pacific Chief Justices adopted a common set of standards for the promotion and protection of their judicial institutions, which included judicial independence. These are known as the 'Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA region'. In 1998, a similar statement of principle (“the Latimer House Principles”) was also agreed upon by representatives from over 20 Commonwealth countries at a conference held in the UK.

Explore related products

The New Fourth Branch: Institutions for Protecting Constitutional Democracy (Comparative Constitutional Law and Policy)

$84.42 $95

The Mirage Of Power Pt2 V4: British Foreign Policy 1914―22 (Foreign Policies of the Great Powers (Routledge))

$350

A Separation (Jodaeiye Nader az Simin) [UK import, Region 2 PAL format]

$19.99

Vacation from Marriage (1945)

$3.79

Bel Ami

$3.59

Brexit: Why Are We Leaving

$0.99

The legislature and executive have a close relationship

The UK does not have a single written constitution, and the separation of powers is not strict. The three branches of the state—the legislative, the executive, and the judiciary—are considered to function separately, with different legal powers. However, there is a close relationship between the legislature and the executive.

Historically, the executive and the legislature have been merged, with the Prime Minister usually being drawn from the largest party in parliament and having a safe majority. This has led to theories that the separation of powers is not applicable to the UK. In recent years, however, the separation of powers has been adopted as a necessary part of the UK constitution.

The legislative and executive branches also overlap in the House of Lords, where members of the executive, such as the Prime Minister and other Cabinet ministers, may sit. The House of Lords plays a role in the legislative process by debating and passing laws.

The close relationship between the legislature and the executive in the UK has been described as a "nearly complete fusion" of the two powers by Walter Bagehot in the nineteenth century. This proximate relationship has been argued to be both a strength and a weakness of the UK's system of government. On the one hand, it allows for better communication and cooperation between the two branches. On the other hand, it may lead to one branch overpowering the other, as there is no strict limitation of power.

Checks and balances

The UK does not have a strict separation of powers, as there is no formal written constitution. However, the three branches of the state—the legislative (Parliament), the executive (Government), and the judiciary (Courts)—are considered to function separately with different legal powers. The legislature makes the laws, the executive carries out the administration of the country, and the judiciary interprets and enforces the laws.

The independence of the judiciary is a key aspect of the UK's system of checks and balances. The judiciary's independence is established through statute, constitutional convention, and weight of opinion. Senior judges are appointed by the Crown, but once appointed, they are independent and have complete control over their actions. Their independence is safeguarded by the Act of Settlement of 1700, which states that they can only be dismissed for due cause.

The Constitutional Reform Act of 2005 further strengthened the independence of the judiciary by abolishing the role of Lord Chancellor, who was previously a member of all three branches of government. The Act also introduced a new independent Supreme Court with its own separate appointment system and budget.

Another important check and balance is the power of Parliament to dismiss the government and call for a general election. This ensures that the executive branch remains accountable to the legislative branch.

The UK's system of parliamentary sovereignty also acts as a check on the other branches of government. Parliament is the supreme legal authority in the UK, with the power to make whatever laws it sees fit. However, parliamentary sovereignty is balanced by the Human Rights Act, which sets out the rights of citizens that all branches of the state must respect.

Overall, while the UK does not have a strict separation of powers, it does have a system of checks and balances in place to prevent abuses of power and ensure fairness across the different branches of government.

Frequently asked questions