Hint - key terms are defined. Just click on the blue words to see their definitions!

In this article, we are going to be looking at the concept of the separation of powers, the principle that structures and separates lawmaking and enforcing bodies in the UK. For information on how laws are made, be sure to check out our other article and our video about the constitution.

There are powers in the UK that have been separated in order to ensure liberty for its citizens. These powers are separated into three principal branches, which are:

The Executive

They put the law into effect. They consist of the Crown and the Government; including the Prime Minister and Government Ministers. Government Ministers are chosen by the Prime Minister and then formally appointed by the Queen.

The Legislature

They are the body that makes the laws. They consist of Parliament which is, the House of Commons, the House of Lords and the Queen-in-Parliament. Members of the House of Commons are elected, whilst members of the House of Lords are appointed for life. Members of the House of Lords are often chosen because of their achievements and experience.

The Judiciary

They administer justice by interpreting laws made. They consist of judges—those who hold the judicial office—and lay magistrates. Judges and those who hold the judicial office are recommended by an independent commission.

Why are judges separated from the executive and from the legislature?

The doctrine of the separation of powers requires that the three principal branches of the Crown should be clearly divided in order to keep citizens’ liberties safe and to protect citizens against having an oppressive government. None of these branches may exercise the others’ power, neither should any person be a member of any two of the branches.

The role of the Lord Chancellor

Before 2005, the Lord Chancellor was the head of the judiciary and had the responsibility of appointing judges. He was also a member of the Cabinet and the Speaker of the House of Lords. The Constitutional Reform Act 2005, removed the judicial functions of the Lord Chancellor and his former role as the head of the judiciary.

The role is now combined with that of the Secretary of State for Justice. Additionally, the Lord Chancellor no longer sits as the speaker of the House of Lords. However, some people argue that the Lord Chancellor’s previous role as the voice of the judiciary in Parliament could ease tensions between the three principal branches.

Creation of the Supreme Court

On the 1st of October 2009, judicial authority was taken away from the House of Lords, and the Supreme Court was created. The Supreme Court is the final court of appeal for all cases in the United Kingdom. This court deals with legal appeals which raise an arguable point of law of public importance. The Supreme Court judges interpret the law, and by doing this, set precedents so that if the same issue arises again, lower courts would follow the decision made by the Supreme Court.

History and development of judicial review

A judicial review allows courts to hear cases brought by a citizen or group of citizens against a public body, such as a minister, local authority or a civil servant. Judges can decide whether these organisations have acted unlawfully by going beyond their powers or by treating citizens unfairly. Judicial reviews can be seen as a challenge to the government when a judge upholds the claims of these citizens or groups of citizens.

Modern examples of judicial review

Immigration:

Detention Action v Secretary of State for the Home Office (2020):

‘Detention Action’ argued that the Government was breaching human rights by not safeguarding detainees from Covid-19 and that detention was not lawful. However, the court held that their arguments were invalid as the Home Office had already put in place a system for reviewing detention cases one by one, with those at the highest risk from Covid-19 being considered first.

Begum v Special Immigration Appeals Commission (SIAC) 2020]:

Begum was allowed to enter the UK to partake in the appeal against the deprivation of her British citizenship. Not allowing her would mean it would prevent the appeal from being ‘fair and effective’. The courts had to determine;

Whether she would be rendered stateless from being deprived of a British citizenship.
(The courts held that she would not be rendered stateless as she can get Bangladeshi citizenship.)
Whether the removal of citizenship would be a breach of her human rights.
(The courts had to regroup as her life was being threatened in Iraq and Bangladesh.)
Whether she could have a ‘fair and effective appeal’ from Syria.

(The courts held that there is no need to remedy a possibility of not having a ‘fair and effective appeal’.)

Hunting ban:

R(Jackson) v Attorney General (2005):

Jackson argued that the Hunting Act 2004 and 1949 Parliament Act were illegal (the House of Commons and Lords had not yet agreed on the law). The courts held that they were lawful and that as it was primary legislation, they were still valid. Also, they held that as Parliament could not respond to the initial issue, it fell on the judiciary to provide an answer.

In conclusion, the ‘Separation of Powers’ relates to the courts having the power to challenge the executive through a judicial review, whilst judges are also bound to follow the law as passed by the legislature. These three principal branches, although they may have some conflict, have been reformed in order to ensure balances and checks are in operation across each branch.

Written by Sarah Josiah

Watch Barrister Alison Pickup answer your questions about the constitution!

Glossary box

Cabinet - A team of ministers chosen by the current Prime Minister to lead in certain areas, such as health, education and the environment etc.

Speaker of the House of Lords - The speaker is a natural member of the house who runs the house of lords. They keep order in the house, allowing people to speak one at a time. The current speaker is Lord Fowler.

Court of Appeal - When a court makes a decision, the losing party can apply to a higher court to have the matter looked at again. These higher courts are called ‘courts of appeal’. The highest court of appeal in the UK is the Supreme Court.

Precedent - A legal principle, that where a higher court makes a decision that is very similar to the current one, the lower court should follow the decision of the higher court.

Held - A legal term for ‘what the court decided’.

Stateless - Where someone does not have citizenship to any country. It is illegal to make someone stateless.

Sources

Addington, A, ‘Begum v Special Immigration Appeals Commission (SIAC) [2020] EWCA Civ 9’ (Adam Bernard Solicitors, 30 July 2020) <https://www.adambernards.co.uk/begum-v-special-immigration-appeals-commission-siac-2020-ewca-civ-9/#:~:text=On%20the%2016th%20July,deprivation%20of%20her%20British%20Citizenship.> accessed 7 December 2020
Brenwell, R, Gay, O, ‘The Separation of Powers’, (House of Commons Library, 15 August 2020) <https://www.parliament.uk/briefing-papers/sn06053.pdf>
Britchfield, C, Devine, D, Durrant, T, ‘Government Ministers’ (Institute for Government, 4 June 2020) <https://www.instituteforgovernment.org.uk/explainers/government-ministers> accessed 29 November 2020
Courts and Tribunals Judiciary, ‘Becoming a judge’ (Judiciary, 2020) <https://www.judiciary.uk/about-the-judiciary/judges-career-paths/becoming-a-judge/> accessed 29 November 2020
Giovannetti, L, ‘R (ota Detention Action & anr) v Secretary of State for the Home Department (24 March 2020): Divisional Court refuses injunction for release of immigration detainees’ (29 Essex Chambers, 26 March 2020) <https://www.39essex.com/r-ota-detention-action-anr-v-secretary-of-state-for-the-home-department-25-march-2020-divisional-court-refuses-injunction-for-release-of-immigration-detainees/> accessed 7 December 2020
In-house law team, ‘Jackson v Attorney General [2006] 1 AC 262’ (LawTeacher, 16 July 2019) <https://www.lawteacher.net/cases/jackson-v-attorney-general.php> accessed 7 December 2020
The Supreme Court, ‘History’ (Judicial Committee of The Privy Council website, 2020) <https://www.supremecourt.uk/about/history.html> accessed 29 November 2020
The Supreme Court, ‘Role of The Supreme Court’ (Judicial Committee of The Privy Council website, 2020) <https://www.supremecourt.uk/about/role-of-the-supreme-court.html> accessed 29 November 2020
UK Parliament, ‘Parliament and Government’ (UK Parliament, 2020) <https://www.parliament.uk/about/how/role/parliament-governmnt/> accessed 29 November 2020
UK Supreme Court, ‘Separation of Powers’ (UK Supreme Court, 26 March 2010) <https://www.supremecourt.uk/docs/separation-of-powers-worksheets-for-teachers.pdf> accessed 29 November 2020

Leducate Explains: Separation of Powers