sop

Separation of powers: fusion of powers rather than the three branch system we use now?

Help. How would you answer it pls

What research and reading have you done so far? What theories and concepts have you gathered and what exactly are you stuck with?

I have only read the basics of separation of powers and the problems with it. I don't know any theories just yet? the problem I have is the structure and what to include and what not to include. Any advice?

There is both strict and partial theories of Separation of Powers, and those are the two main theories you should be aware of. Other than that, it is merely an application to the existing circumstances in the UK Constitution; for example:

Parliamentary Government and the idea of an "elective dictatorship" which undermines the autonomy of Parliament. Note, for example, the last time that a government has been defeated on the second reading of a bill in the Commons was in 1980.

Does the executive exercise legislative functions? Statutory instruments are an obvious example of this.

Does the judiciary carry out legislative functions - Shaw v DPP.

What reforms were introduced by the Constitutional Reform Act 2005, and do they strengthen Separation of Powers in the UK?

Is the doctrine merely a "constitutional myth" (O'Hood Phillips) in the UK which is descriptive as opposed to normative, or is it a "fundamental principle upon which our constitution is based" (Per Diplock, Duport Steel)

hi,

thanks for this detailed and helpful response.

So I would structure it as intro and then one argument highlighting that the three branch system should be fused together because they all inter-relate and the other argument could be that the separation of powers is very clear to establish especially with reforms such as the Lord chancellors role in all three legislative functions.

you could do that, but i would reconsider what you are saying:

(1) the three branches should not be "fused" but they cannot be rigidly separate; the partial agency theory is the most plausible theory. Absolute fusion is bad, but some degree of partial agency is good. As barendt argues, the key question is "does one branch have a disproportionate amount of power to the other branches?" and the partial agency theory should, if working correctly, answer no to that question because the other branches have sufficient powers to check the other branches.

(2) reforms with the lord chancellor have, undoubtedly strengthened separation of powers. However, the reform of the lord chancellor's office was far from perfect; note, for example, the fact that the senior law lords at the time were furious about the lack of consultation over these changes. Lord woolf came out in strong defence of the office of lord chancellor, because he felt that it strengthened separation of powers by having a strong judicial voice in the cabinet. Stevens argues "...the fear for the law lords was that one day they would have a legally unqualified lord chancellor" and that is exactly what they have had with chris grayling over the past 5 years. He has not been a shining beacon of hope for the judiciary and he has criticised the judiciary on many occasions - so the reforms aren't all perfect.

You could do that, but I would reconsider what you are saying:

(1) The three branches should not be "fused" but they cannot be rigidly separate; the partial agency theory is the most plausible theory. Absolute fusion is bad, but some degree of partial agency is good. As Barendt argues, the key question is "Does one branch have a disproportionate amount of power to the other branches?" and the partial agency theory should, if working correctly, answer no to that question because the other branches have sufficient powers to check the other branches.

(2) Reforms with the Lord Chancellor have, undoubtedly strengthened Separation of Powers. However, the reform of the Lord Chancellor's Office was far from perfect; note, for example, the fact that the Senior Law Lords at the time were furious about the lack of consultation over these changes. Lord Woolf came out in strong defence of the office of Lord Chancellor, because he felt that it strengthened Separation of Powers by having a strong judicial voice in the cabinet. Stevens argues "...the fear for the Law Lords was that one day they would have a legally unqualified Lord Chancellor" and that is exactly what they have had with Chris Grayling over the past 5 years. He has not been a shining beacon of hope for the judiciary and he has criticised the judiciary on many occasions - so the reforms aren't all perfect.

Hi,

this is not really relevant to sop but when we are discussing the importance of the different sources of the British constitution, do we talk about the advantages and disadvantages or not

Depends on the way the question is phrased.

Discussing the importance of some of the sources of the constitution?