Separation of Powers and the Judiciary

Constitutional Reform

The judicial role of the Lord Chancellor has been transferred to the Lord Chief Justice. This strengthens the separation of powers in the UK by emphasising the independence of the judiciary from the executive arm.  For more on this see:- 

 http://www.dca.gov.uk/constitution/reform/faqs.htm

US Position – fetters on executive excess

The separation of powers in the US is much celebrated and each arm of government is held to account via a complex system of checks and balances. President Bush has been criticised for increasing Presidential power which critics call an “imperial presidency”. Recent developments, however, have shown that there are still important fetters on this power.The Supreme Court has on a number of occasions declared the indefinite detention of “enemy combatants” in Guantanemo Bay as “unconstitutional” and has also declared that the military tribunals for the detainees “raised separation of powers concerns of the highest order”.

http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2006/06/30/wus130.xmlhttp://www.guardian.co.uk/guantanamo/story/0,,1809111,00.html

Professor Gearty states the war on terror has resulted in executive excess in the US but is careful to point out that the same has been true in the UK. He argues that decisions such as Rasul, Al-Odah and Hamdi demonstrate well that executive excess can be reigned in by the judiciary.

http://www.guardian.co.uk/guantanamo/story/0,13743,1254930,00.html

See also the section in this blog on the Belmarsh decision - A & Others v. Secretary of State for the Home Department  [2004] UKHL 56 .