BPP SG Chapter 4: Separation of Powers Flashcards
Who gave a modern definition of what the separation of powers should mean?
Munro
What did Munro take the separation of powers to mean?
1) no person or body should form more than one part of the three organs of government
2) one organ of government should not exercise the functions of either of the other two organs
3) one organ should not interfere with or exercise control over the functions of the other two organs
Give two examples of separated constitutions
USA and Germany
Give an example of how in the UK the Executive has a legislative function.
- exercise of delegated legislation
- use of prerogative powers
Give an example of a case where the judiciary could be accused of lawmaking. What happened?
- Shaw v DPP
- Shaw wanted to publish a prostitutes directory
- no statute or precedent preventing this
- HoL upheld a conviction based on “corrupting public morals”
- HoL claimed it had the power to “enforce the … purpose of the law”.
How can the legislature remedy a judicial decision? In what case did they do this?
- By passing legislation to nullify the effects of the judicial decision
- Burmah Oil v Lord Advocate
Give an example of how the legislature is separated from the judiciary
- House of Commons Disqualification Act 1975
- prevents judges and senior civil servants becoming MPs
Why is an independent judiciary so crucial to the separation of powers?
- without one, the executive and legislature can manipulate the outcome of cases
What Act gives the executive a duty to uphold the independence of the judiciary?
s3 Constitutional Reform Act 2005
What principles underpin judicial independence?
- tenure
- immunity
- open courts
- political independence
- appointment by a commission
- judicial figure as ‘head’
What case demonstrates the immunity of the judiciary? What was the result?`
- Sirros v Moore
- a judge cannot be sued as long as they reasonably believe they are acting within their jurisdiction
Who chooses judges? By what law?
Judicial Appointments Commission following the Constitutional Reform Act 2005
What is the courts’ justification for using judicial review to strike down executive action?
- upholding the democratic will of Parliament
In what case did the courts demonstrate their willingness to strike down executive actions which don’t follow Parliamentary will? What was the justification?
- R v Sec of State for Home Department ex p Fire Brigades Union
- executive actions were inconsistent with the will of Parliament
- because they ignored Parl’s attempt to bring in effective law
In what case did the judge comment on the importance of separation of powers? What did he say?
- Dupont Steel v Sirs
- Constitution is unwritten but “firmly based on the SoP”
