Introduction

There are two distinct perspectives from which the contemporary separation of powers can be approached following the implementation of the HRA 1998 and the CRA 2005. Separation of powers might be analysed by examining the separation of, or distinctiveness of, governmental functions, or through an examination of the institutional divides or interactions among the three branches of government. The most visible change in the latter respect can be found in the increased institutional separation brought about by the CRA 2005, with the establishment of a Supreme Court for the United Kingdom being the most obvious indicator of an increased separation between the judicial and legislative branches. This separation of the judicial branch from the elected branches of government forms the subject of Part IV of this book, and centres on the changes driven by the requirement in Article 6(1) of the European Convention on Human Rights (ECHR, or the Convention) that, ‘in the determination of his civil rights and obligations or of any criminal charge’ an individual is entitled to a hearing before an ‘independent and impartial tribunal’.

This chapter concerns the separation of function at the macro level – the specific roles that have been allocated to the judiciary, executive and Parliament by the HRA 1998 itself, and begins by introducing the controversy over extending the judicial role into the enforcement of human rights standards, and the mechanisms by which the HRA seeks to reconcile the enhanced protection for individual human rights with the maintenance of majority government.