Separation of Powers and the Judiciary
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By Nicholas Kilford
Introduction
Much debate in modern constitutional literature concerns the extent and legitimacy of the role of the judiciary. Such debates continue to be crucial to the study and practice of public law in the UK because they concern the distribution and allocation of state power at one end, and the rights of the individual at the other. This dissertation, rather than seeing danger in an emboldened judiciary, seeks to argue that the new powers of the judiciary can be understood through the lens of the separation of powers, and that this in turn enables a new model of collaboration between the branches of government in the constitution.
Critics may think that to focus on the separation of powers is to waste one’s time on a theory that is ‘a constitutional myth’ or an ‘irrelevant distraction’ in the UK. However, there is a convenient and straightforward justification for such focus here. This essay argues that separation is both an accurate descriptor of the UK constitution, and a useful normative model as the constitution moves forward. It is certainly true that the separation of powers is not regarded as the most forgiving to apply to the UK, but it will be argued that the separation doctrine and the new debates it fosters are the only way to make sense of a constitution of such complexity. The separation of powers may not end debates around which powers each branch should have and why, but it provides a more coherent way of shaping these debates around institutional factors. The separation of powers can contemplate in descriptive terms the difficulties facing the constitution and can go some way, in normative terms, to resolving them. Rather than understanding judicial activism or restraint solely in terms of legal and political domination, this paper argues that viewing rights issues and adjudication in terms framed by power allocation and institutional competence leads to far more satisfactory results because it enables a confident and coherent exchange of institutional views. It would not, of course, be sustainable to abandon other key constitutional concepts entirely in the pursuit of the innovative, and this dissertation does not seek to do so as it will be seen that, for example, Parliamentary sovereignty is concomitant with separation.
Chapter 1 will argue that the constitution is on a trajectory away from the orthodoxy of the old order and towards greater complexity which needs to be theoretically recognised and it is suggested that the separation of powers is gaining traction in theory and practice in the UK constitution. Chapter 2 will analyse how the theory operates in the hands of the judiciary and it will be seen that, though the courts apply the logic of separation implicitly, which is sometimes problematic, the courts use separation as a way of making sense of their relationship with the other branches of state and that there is appetite in these spheres for a theory which can do this in coherent terms and allow the judiciary a strong and meaningful voice in the constitution. Finally, in Chapter 3 the material advantages of separation will be examined. It will be suggested that separation provides the gateway for the institutional collaboration exemplified and required by human rights because it empowers institutions with their own core functions, permits contact between them, and values the voices and roles of each of the institutions within the constitution.
