Chapter 4: Seperation of Powers Flashcards
1
Q
What is the meaning of the doctrine of seperation of powers by Bradley and Ewing
A
- Same person should not be a part of more than one organ of government
- One organ should not control or interfere with the work of another
- One organ should not exercise the functions of another
2
Q
What is the history and the development of SOP
A
- During the English Civil War (1641-51), there was only division between Crown and Parliament During the war King Charles I had many armed conflicts between his supporters, and Parliament forces was led by Oliver Cromwell.
- Because of this Charles tried to rule without convening (come tgt with) parliament. Resulting in the need to increase revenue to run the country without Parliament’s approval for general taxation
- In 1649, Charles I was executed for treason (overthrowing government for war). And for 11 years country was ruled without a king
- 1660, restored by King Charles II
- Today, it evovled into the current 3 organ format; and the system is called the ‘Westminster model’
3
Q
What are the functions of each organ
A
- Legislation - Makes legally binding laws that are bound to people generally (caveat with Bingham’s postualte)
- Executive - Deals with foreign relations, military action, administration, developing national policy on a wide range of subjects
- Judiciary - Applying the law to resolve civil disputes and criminal law
4
Q
What is Hilaire barnett’s view on the doctrine of SOP
A
The idea isin’t to isolate them from each other, but rather to differentiate their ‘primary purpose’ while not significantly encroaching into each other
5
Q
What is the importance of the doctrine?
A
- Important method to achieve a democratic government and ROL - Henderson
- To protect liberty and a check and balacnce, so that there is no risk of one person abusing power - Montesquieu
- If the powers are allocated sensibly, they would exercise power efficiently - N.W. Barber
6
Q
In what way have the SOP between Executive and Judiciary not been observed
A
Compostition
Function and powers
7
Q
Compostition not being observed (E and J)
A
- Judicial Committee of Privy Council is in form of the Executive (E), but is an independant court of law (J)
- Lord Chancellor, who is a member of Cabinet (E), was formerly also head of the Judiciary and (J) entitlted to preside over the HOL in its role as final court of appeal
Constitutional Reform Act 2005 changed to LC remains cabinet minister and function still connects with the judiciary but no longer a judge
8
Q
Function not being observed (E and J)
A
- Many disputes of public service resolved not in courts (J), but in tribunals (E)
- Judges (J) dragged into political arena (E) by the government to preside over royal commisions, departmental committees and inquieries (Arms for Iraq affiar, the Profumo affair and the BSE chapter)
- R v Secretary of State for Home Department Ex Parte Anderson [2002] - Home Secretary(E) changed to fix the tarrif period for murderers serving life sentence after being able to be reasled by ‘license’. Incompatible with Article 6 of ECHR
- Child Maintenance Enforcement Commission (CMEC) ran by civil servants(E) for getting absent parents to pay child maintenance to parents living with the child in accordance to Child Support Act 1991.
Welfare Reform Act 2009 gave enforcement agengy under the government powers to enforce payment by confiscating the passports and drivers license. (While all the punishment should be given to the Judiciary (J)??) - HOL Constituion Committee, regarding the Welfare Reform Bill (2008-2009) in the Ninth Report were unsatisfied that the punishments were held by the E and not the judges themselves
9
Q
How have SOP been observed between the E and J
A
Function
Influence and Control
10
Q
Function being observed (E and J)
arguments for it being observed
A
- Tribunals can exercise politcal discretion which would be inaproriate to confer to judges, and do the part of adjuication in this space more efficiently - Bradley and Ewing
- Public inquiries by the executive are decision-making processes which may be taken into the departmental policy rather than judicial application of legal rules. Some matters are better for ministerial decision rather than judicial consideration - bradley and Ewing
- M v Home Office, HOL held ministers and civil servants were subject to the contempt jurisdiction of the courts
11
Q
Influence and Control being observed (E and J)
A
- Bradley and Ewing: ‘Although judges are appointed by the executive, judicial independence of the judiciary is secured by law, by constitutional custom, and by professional and public opinion.’
- Judiciary has the right to decide claims on judicial review against unlawful acts of government agencies and officials
- R v SSHD, Ex Parte Fire brigades Union - Ministers acted unlawfully by not exercising delegated legislation to rectify the Criminal Jusitice Act 1998 (as they are supposed to). Instead government created a new scheme using royal prerogative, Lords held unlawful that they would never bring/delaying in force the Act.
- Judiciary ascertained (make sure of) whether royal prerogative can be used to change the law of the land without Parliamentary approval, and was held government can’t use RP to trigger Article 50 to leave EU - Miller I
- Judiciary claimed exercise of the executive power, even if statutory or RP by nature would not rule ‘non-justiciable’ matters that invovle high policy. More concerned on the process the executive decisions are made rather than the merits/quality - Miller II
12
Q
In what ways have the SOP between Legislature and Executive not been observed
A
Compostition
Influence and Control
13
Q
How has composititon of L and E not been observed
A
- Ministers (E) also double as a member of one of the Houses (L), which means they also have Parliamentary responsibility. By convention, PM (E) has to be a member of Commons(L)
- SOP assumes a situation where decision making in cabinet is relied under Collective Ministerial Responsibility. And that whether Sir Kier Starmer (PM from Labour Party) secured majority on 4th July 2024 election was Prime Ministerial or collective cabinet decision-making?
Cabinet is the connecting link between E and L
14
Q
How has influence and control of L and E not been observed
A
- HOC (L) basically controls the executive, since it can oust a government (E) by commanding majority on an issue of confidence - Callaghan minority government of 1979
- Also seen with Boris Johnson who was leading minority government, via Fixed-term Parliament Act 2011, to call for early elections on 12 December 2019.
Basically if government has the confidence of the HOC, then they oftentimes have the decisive factor
15
Q
In what way has SOP been observed between L and E
A
Compositition
