Unpacking Separation of Powers: Judicial Independence, Sovereignty and Conceptual Flexibility in the United Kingdom Constitution
 Public Law 469
Posted: 15 Jun 2020 Last revised: 18 Jun 2020
Date Written: 2017
This article seeks to unpick the extent to which separation of powers operates as a normative influence on judicial decision-making. We examine whether the increased prominence of separation of powers discourse also reveals a convergence around the normative influence, or influences, of an increasingly judicialised doctrine. Our argument is that beneath the veneer of uncertainty there are four co-existing (and non-mutually exclusive) understandings of separation of powers, with each broadly reflective of a particular understanding of the judicial function within the constitution. Our analysis identifies the following core variations of separation of powers evident in judicial reasoning: (i) a hierarchical, or sovereignty-endorsing, variant; (ii) a weakly normative variant; (iii) a strongly normative variant; and (iv) a vision of separation of powers as a constitutional fundamental.
Keywords: Constitutionality; Judicial decision-making; Judicial independence; Constitutional norms; Separation of powers;
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