L3: Separation of Powers

Question 1

How does the UK uphold a democratic constitution ?

Answer 1

• SOP
• Parliamentary Sov
• ROL

Question 2

Three Theories on SOP

Answer 2

Purest Theory (Montesquieu): Each branch has a very diff function

Less pure (!) theory (Blackstone): It can’t be a complete separation; they must overlap to effectively hold eacg other to account. It includes the 3 branches of govt which are the executive, legislature and judiciary

Alternative view (Bagehot): Complete confusion of legislative and executive power

Question 3

Impact of CRA 2005

Answer 3

Creation of the SC- s.23- 60 CRA 2005: No longer the HOL

Question 4

Reformation to the role of the LC

Answer 4

-s.2-21 CRA 2005- There was inherent political bias to the role.
-Lord Chancellor no longer a legal professional (therefore, may fight less for the judiciary)

Question 5

Amending the process around judicial appointments

Answer 5

• s.61 CRA 2005- created an independent body to appoint the judiciary appointment
  HOWEVER!!!
• Queen sits in all 3
  -Executive, Legislature: The PM and other Cabinet
  Minister sit in the HOCs:
  1. Though see HOC Disqualification Act 1975
  2. Lord Halisham- An Elective Dictatorship
• Hangover Effect- remaining first justices still part of the HoL
• Judicial and legislative role as somewhat akin

Question 6

A weak branch:1/3

Answer 6

• Lord Steyn- ‘The Weakest and Least Dangerous Branch of Govt’ Public Law
  Parliamentary Sovereignty:
  Ex Parte Cannon Selwyn [1872] 36 JP 54 said “There is no judicial body in the country by which the validity of an Act of Parliament could be questioned.“ - C J Cockburn
  HRA 1998:
• s.3: reading legislation in a way that’s compatible with the convention
  -s.4: declarations of incompatibility
  R v Sos for the Home Office
  F: s.82 SOA 2003- any sex offender who has been sentenced to over 30wks in prison had to notify the police of where they are living if they go abroad. For life, this couldn’t be reviewed.
  L: was this incompatible with ECHR Article 8
  O: Yes
  R: no justification for continual interference and lack of ability to review was disproportionate interference lead to DoL.

Question 7

A weak branch: 2/3

Answer 7

Mice:
- Francis Bacon, in his essay of Judicature (written in 1612), highlighted the strength of the judicial branch when he declared that the judges should be “lions, but yet lions under the throne”.
- However, judges ought to remember that their office is to interpret law, and not to make law, or give law.
Lions:
- “Bacon I think, said the judges were the lions unfer the throne but the HoL’s has reduced us to mice speaking under a chair” (Justice Stable) after a majority decision in the Liversidge v Anderson (1941)

Question 8

A weak branch: 3/3

Answer 8

• “Miller”
• R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the EU (2017)

Question 9

Is there SOP in the Uk constitution ?

Answer 9

1. A myth ?
2. Does it matter ?- this is unobjectionable so long as they are holding one-another to account.
3. Lewison in Mere Worth said that separation might not exist in pure form in a Montesquieu sense but that it has always been part of the constitution
4. Often those that do percieve there to be a strong separation are judges- this is reinforced within case law

Question 10

How does this fit in with the broader parliament ?

Answer 10

• Under the Ministerial and other Salaries Act, there can only be 109 paid ministers including PM.
  -Under the House of Commons Disqualification (HoC) Act, number of Ministers/SoSs able to sit in HoC is 95.
  -Then there are backbenchers for the governing party.
  -And the rest of Parliament!