1A.3.6 Separation of Powers Theory and Independence of the judiciary

Question 1

Who proposed the Seperation of Powers theory, and when?

Answer 1

Montesquieu, a French political theorist, in the eighteenth century.

Question 2

What is the Separation of Powers theory?

Answer 2

The theory states that there are three primary functions of the state and that the only way to safeguard the liberty of citizens is by keeping these three functions separate.
As the power of each is exercised by independent and separate bodies, each can keep a check on the others and thus limit the amount of power wielded by any one group.

Question 3

What are the three arms of state?

Answer 3

1) The legislature
2) The executive
3) The judiciary

Question 4

The legislature

Answer 4

The law-making arm of the state (this is Parliament in the British system).

Question 5

The executive

Answer 5

The body administering the law (this is the government of the day who forms the cabinet in the British System).

Question 6

The judiciary

Answer 6

Refers to the judges who apply the law.

Question 7

How is there an overlap between the executive and the legislature?

Answer 7

Ministers (forming the government) also sit in Parliament and are active in the law-making process.

Question 8

Is there an overlap between the judiciary and the other two arms of the state?.

Why is this important?

Answer 8

Very little overlap betwen the judiciary and the other two arms of the state. - With the exception of the Lord Chancellor, who sits as an MP (legislature), cabinet minister (executive) and the head of the judiciary.

This is important because it allows the judiciary to act as a check and balance on the other arms of state.

Question 9

Judges in the English Legal System are independent in a number of ways. Such as…

Answer 9

• Security of tenure
• Immunity from suit
• Independence from the executive
• Independence from the legislature
• Independence from the case

Question 10

What is security of tenure?

Answer 10

Where a judge cannot be removed from office (except in exceptional circumstances).

Question 11

Do superior judges have security of tenure?
- Why is this needed?

Answer 11

Yes. They can only be removed by the monarch following a petition presented to him by both Houses of Parliament.

This gives superior judges protection from political whims and allows them to be independent in their judgements.

Question 12

Do inferior judges have security of tenure?

Answer 12

No - they do not have the same security of tenure as superior judges.

The Lord Chancellor, with the consent of the Lord Chief Justice, has the power to dismiss inferior judges for incapacity or misbehaviour.

Question 13

Immunity from suit

Answer 13

Judges are given immunity from prosecution for any acts they carry out in performance of their judicial function.
They also have immunity from being sued in a civil case for actions taken or decisions made in the course of their judicial duties.

Sirros v Moore (1975)

Question 14

Sirros v Moore (1975)

Answer 14

In a case in the Crown Court, the judge wrongly ordered someone’s detention. That person started a claim for false imprisonment against the judge. The Court of Appeal held that, although the detention had been unlawful, no action could be taken against the judge as he had acted in good faith, believing he had the power to imprison.

Question 15

Independence from the executive

Answer 15

Superior judges cannot be dismissed by the government and in this way they can truly be said to be independent of the government. They can make decisions which may displease the government without the threat of dismissal.

Example: R (Miller) v Secretary of State for Exiting the European Union (2016).

Question 16

R (Miller) v Secretary of State for Exiting the European Union (2016)

Answer 16

In 2016 following the referendum decision to leave the European Union, the government announced it would start the process for leaving. There was then a challenge as to whether the executive could do this without consulting Parliament. The courts held that the government could not start the process for leaving without consulting Parliament. This decision was attacked by some people who felt that the judiciary should not interfere.

Question 17

Which act guarentees judicial independence?

Answer 17

s3 Constitutional Reform Act 2005

Question 18

Independence from the legislature

Answer 18

Judges are not involved in the law-making functions of Parliament.

Full-time judges are not allowed to be members of the House of Commons.
There used to be judges in the House of Lords when the House of Lords was the final court of appeal.

Question 19

What was the main reason for creating the Supreme Court?

Answer 19

The main reason for the creation of the Supreme Court in 2009 was to separate the judiciary from the legislature. The Supreme Court has its own building and support staff, seperate to Parliament.

Question 20

Independence from the case

Answer 20

Judges cannot try any case where they have any conflicts of interest.

Example: Pinochet case (2000)

Question 21

Pinochet case (2000)

Answer 21

Chilean dictator wanted by Spain for extradition on charges of torture. The extradition case heard by House of Lords. Lord Hoffman was involved with Amnesty International, which created a bias. The decision was set aside and a re-trial was ordered.

Question 22

Judicial review

Answer 22

When decisions of government ministers or public authorities can be challenged by a person who has been affected by the decision. Judges are prepared to find against ministers if they have acted unlawfully. As seen in the case below:

R v Home Secretary, ex parte FBU (1995)

Question 23

The ability of judges to hear human rights cases

Answer 23

Judges are also able to hear cases involving human rights, and are prepared to find against the government.

The Human Rights Act 1998 incorporates the ECHR into UK law and judges have the power to declare than an Act is incompatible with the convention.

Decisions of this nature put pressure on the government to change the law to comply with the ECHR.