The principle of separation of powers is one of the oldest at common law, having been enunciated by John Locke in his Constitutional theory. In his treatise, Civil Government, he argued that it would be a wrong for the same person to have law making powers and the powers to execute the same law. According to him, such powers were vested in the same institution or group of persons, there would be a great temptation of such individuals to use such powers to their own benefit and also to exempt themselves from their application. This principle was later modified as a doctrine of the rule of law by another French jurist called Montesquieu. This philosopher mainly grounded his exposition of this doctrine on the British Constitution. He divided state authority into three main branches consisting of the executive e, judiciary and legislature. According to him, it would be in vain for either of these authorities to exercise all the functions associated with their offices or for one organ to interfere with the functions of another organ. He thus divided the doctrine of separation of powers into four fundamental principles, that is, the principle of trias politica, separation of personnel, separation of functions and checks and balances. This doctrine was later developed by William Blackstone and Dicey. Since then, it has become an important principle of contemporary Constitutional law many common law countries, among them the UK. Judicial deference on the other hand, is situation or condition whereby the Judiciary or courts subject, submit t or yield its decisions or judgment to another arm of the government in exceptional cases such as those involving issues of national security or defense. It is usually considered by many legal scholars as being antithetical to the whole concept of judicial independence and strict separation of powers and is practiced in the UK and the US. In this essay, I disagree with the statement to the effect that “judicial deference is a mockery of the separation of powers in the United Kingdom”.
Moreover, it may not be right to argue that the new concept of judicial deference is a threat to the principle of separation of powers since judicial difference recognizes the importance of having checks and balances in the government. Through judicial deference, the executive and the legislature are able to check on the powers and functions of the judiciary to ensure that such powers are not abused or used in a way that compromises national interest. According to Webley and Samuels, judicial deference is principle that recognizes the benefits of having a partial separation of powers among the various arms of the UK government since it may not be desirable to strictly apply or maintain an absolute separation of powers in certain cases involving sensitive issues of state. Masterman also argues that the significance of partial separation of powers in the UK governing structure and Constitutional law cannot be overlooked or lightly dismissed since it ensures that each branches of government perform their constitutional functions. In Baron Mereworth v Minister of Justice (2011), Justice Lewison acknowledged the fact that the separation of powers principle in the UK is not in its pure form as had been imagined by Montesquieu due to changes in Constitutional interpretation. As Sigh and Vijay argue, the principle of separation of powers is different both in principle and practice, hence may not be strictly applied.
Works Cited
Carolan, Eoin. The new separation of powers: A theory for the modern state. Nw York: Oxford University Press, 2009. Print.
Flynn, Vince. Separation of power. New York & London: Pocket Books, 2009. Print.
Glennon, Michael J. "Nation al security and double government." Harvard National Security Journal 5 (2014): 1-114. Print.
Masterman, Roger. The separation of powers in the contemporary Constitution: Judicial competence and independencen in the UK. Cambridge, NY: Cambridge University Press, 2011. Print.
Neudorf, Lorne. "The Supreme Court and the new judicial inependence." Cambridge Journal of International and Comparative Law 1.2 (2012): 25-43. Web.
Parpworth, Neil. Constitutional and administrative law. Oxford, NY: Oxford University Press, 2016. Print.
Scheppele, Kim Lane. "The new judicial deference." Boston University Law Review 92.89 (2012): 89-170. Print.
Singh, Nidhi and Anurag Vijay. "Separation of powers: Constitutional plan and practice." International Journal of Scientific and Research Publications 3.11 (2013): 1-6. Print.
Stevens, R. A loss of innocence?: Judicial independence and the separation of powers." Oxford Journal of Legal Studies 19.3 (2010): 365-402. Web. < http://ojls.oxfordjournals.org/content/19/3/365.abstract >.
Ward, Tanya. "Independence, accountability and the Irish Judiciary." Judicial Studies Institute Journal 1.1 (2008): 1-36. Print.
Webley, Lisa and Harriet Samuels. Public law: Text, cases & materials. Oxford: Oxford University Press, 2015. Print.
