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The Act of Settlement

After the death of Queen Mary, and then the deaths of her sister Anne’s son Prince William of Gloucester, William and Parliament felt the need to restate the succession. This was to  ensure that the  Crown did not return  to James’ line.

Accordingly the Act of Settlement of 1701   vests the succession in the Electress Sophia of Hanover, a granddaughter of James I, and her Protestant heirs. The Act still determines the succession to the throne of the United Kingdom and of all the Commonwealth Realms, whether by reference to the Act as a British statute, or as a patriated part of the particular Realm's constitution.

Any change to the succession today needs the approval of all Parliaments of the Realms, those Commonwealth countries of which The Queen is the Sovereign.

The Act of Settlement is frequently the subject of debate, principally because of the protestant succession. But there is something far more important in this legislation, something which would have a profound effect on governance in Britain, the US, the Commonwealth and indeed the world.
This is in the provision, that the “ judges' commissions be made  quamdiu se bene gesserint...” This means that judges were no longer to hold office “at pleasure,” that is, be dismissible by the government whenever they so wish. And of course a government may well wish to dismiss a judge who rules against them.

From the Act of Settlement, judges hold office now “during good behaviour”. That means they can be removed only by an address of both Houses of Parliament.

This was of signal importance. It is the source of the doctrine of the separation of powers in England, the subject of detailed study by Montsquieu.  He saw the separation of the three powers, the executive, the legislature and the judiciary as ensuring political liberty. The separation of the judiciary had, he thought, to be real, and this was certainly the case in England.

Subsequently the English model evolved into the Westminster system as we know it today, where the ministry must enjoy the confidence of the lower house, the House of Commons.  In the meantime the separation of powers had been carried to the United States, where the judiciary was to become a significant force, and criticised for moving into the area of the legislature.

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