Essay revision/ help Flashcards
Who is the main advocator for the combined view of the SOP and what ideas does he suggest?
What did it say about the reason for the combination and the way in which functions are allocated to institutions?
John Locke- combining both efficiency and liberty, in that it is in order to be efficient it must be sufficiently capable of protecting liberty.
- This meant imposing limits on the functions of the institutions to avoid placing extensive law-making and law-applying powers in the hands of the same group eg parliament, in order that they do not act in a partial and biased way; this impediment on liberty thereby impedes on the efficiency that the SOP seeks to promote.
- Powers would therefore be allocated to those institutions that could most efficiently carry them out, in order to speed up the running of the states protection of liberty.
- Powers were divided in order to facilitate the purposes for which the state existed. The most efficient allocation was therefore the allocation which best upheld the liberty of citizens; a model on which the US constitution was drafted
What does Barber say about what efficiency actually is?
- efficiency is not wealth-maximising or based on a utilitarian moral philosophy.
- Efficiency is instead the ability of an institution to achieve its targets; the efficiency of an institution therefore depends on what its targets are. An institution with one target can is easier to identify as efficient as only one variable exists as to its efficiency, but this is not indicative of our constitution and the institutions which make it up.
What does Barber say with regard to the UK SOP in promoting efficiency?
Why and how is the SOP different in the UK than anywhere else?
-That efficiency is not best achieved through the SOP to simply 3 institutions, as this is a distant relic of the past, where there was a totally different conception of democracy, rights, and political thinking in general.
- There are inherent values related to religion, politics, economics, geography etc which will shape the balance struck in the SOP. The written constitution of the US and Germany have been the result of socio-political conflict and war which have increased the demand for a document of entrenched constitutional rights, as a way of avoiding the atrocities of the past, notably in Nazi Germany and the failure of the SOP there.
- more simply, de-centralisation is required in the USA on account of its vast size and population; the same requirement for a SOP is not needed in a country like Iceland
What does Barber say with regard to the institutions in the SOP in the UK?
Specifically other institutions which compete and dispel the simple three-way separation of our constitutional institutions?
- That the monolithic view of 3 distinct institutions of the constitution is wrong, with power devolved down to regional institutions in devolution, in a quasi-federal manner (quasi-federal because the powers of each region is asymmetrical and also can be withdrawn by WMP) and transferred upwards to EU level on account of the ECA 1972
- The existence of the ECtHR as a persuasive yet not authoritative body for adjudicating on human rights cases means that it somewhat competes with our national courts. the ECJ goes further to provide binding judgements on our national courts, which make them redundant with regards to EU law matters (pre-Brexit) as our courts are simply bound to give legal effect to their decisions and uphold the supremacy of EU law as a source of our national law.
What 4 factors does Barber say can impact on which institution is best for undertaking which job?
1) The composition and skills of the members of the institution, including their knowledge and experience
2) scope of institutions information gathering powers
3) the manner of the decision making process- whether its expert deliberation or an inclusive amateur process
4) The vulnerability of the institution to external pressures- the courts much less vulnerable to outside pressures and also not accountable to the public- whether that respects democracy or not, it means that they are able to exercise impartiality without expecting being the subject of public outrage from people that can actually remove them from power.
What did the CRA 2005 change with regards to the Lord Chancellor’s role and judicial independence?
- The Lord chancellor’s role is to protect the independence of the judiciary from bills or legislation which might threaten independence, as well as wider abuse of judges by the public and media, ensuring high levels of non-partisan behaviour.
- To keep the judiciary independent from parliament, matters which are the subject of legal proceedings may not be referred to in any motion, debate or question.
What is the two ways in which the judiciary should be independent?
- independent in the sense that:1) it doesn’t belong to any of the above parties. Absence of overlap (explains why the judiciary is more independent of the other two branches than they are of each other)
2) not subject to the control or manipulation of other parties
What are the two ways that the judiciary may be accountable, in the absence of being publicly accountable?
- Sacrificial accountability
- Explanatory accountability
What is sacrificial accountability, what changes did the CRA 2005 make to sacrificial accountability and what is its downfall?
- Subjecting judges to sanctions
- Under CRA,, Lord chancellor and Lord chief justice can remove judges together if subject to criminal investigations. Can also issue reprimand or warnings to judges.
- The act of settlement is rarely used and therefore this accountability appears to be more theoretical than practical.
What is explanatory accountability and who holds them to this accountability?
A duty on judges to explain and justify their decisions to ensure openness and fairness, just like ministers in parliament.
- very simply, judges issuing reasons in their cases.
- reports and answers to questions.
- Select committees hear from judges about the court system and procedural issues to provide parliament with useful information.
How is judicial independence now guaranteed through the separation of personnel (CRA 2005 reform)??
-Constitutional reform act 2005 created Supreme court, removed judicial role of Lord chancellor and removed House of Lords members from being Law Lords
How are judges now appointed to high court and what implication does it have on the SOP and transparency of government?
-CRA 2005 helped reduce the chance of aristocratic nepotism, as previously Lord Chancellor made appointments and considerations in private.
CRA 2005 meant that the process is more public (judicial vacancies now advertised), more inputs into process (judicial appointments commission assess and recommend).
-Not just within the hands of the executive anymore.
What does art 6 of the ECHR 1998 say about the role of the judiciary?
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”
Therefore the HRA has incorporated judicial independence into our law as part of constitutional statues, indicative of the Rule of law existing as a principle which ‘pervades’ our constitution
