ORGANISATION OF THE STATE – SEPARATION OF POWER

Question 1

What is separation of powers and does it exist in the UK?

Answer 1

The separation of powers is a fundamental idea in the UK that requires the three main branches of government to have separate powers and functions.

There is no clear separation of powers in the UK constitution between the executive and legislature.

Question 2

What is the Executive’s role in making law?

Answer 2

The Government proposes primary legislation to be considered by Parliament and drafts secondary legislation.

Question 3

What is the Legislature’s role in making law?

Answer 3

Parliament decides whether executive proposals become law.

Individual MPs can also propose primary legislation (via Private Members’ bills).

Question 4

What is the role of the Judiciary in making law?

Answer 4

It interprets Parliament’s intentions in making legislation and develops the common law.

Question 5

What is `judicial activism’?

Answer 5

There is concern in relation to judges making’ law as there is a fine dividing line between developing the law and making it, and sometimes courts are accused of excessive judicial activism’.

Judicial activism allows judges to consider broader societal implications of their decisions, rather than just the applicable law. It is often used to describe a judge’s willingness to invalidate legislative or executive actions, or to decide constitutional issues.

Question 6

What is judicial deference?

Answer 6

Judges will sometimes yield to the judgment of another legitimate party, such as the executive or legislature.

Case law addressing separation of powers shows that the courts will not encroach on what they see as areas of government policy.

Question 7

What is fusion of powers?

Answer 7

Overlap in terms of personnel and functions between the executive and the legislature.

Question 8

What is the legislative functions of the executive?

Answer 8

The executive carries out legislative functions under the authority of Acts of Parliament by creating secondary legislation.

Question 9

How is parliamentary control over subordinate legislation determined?

Answer 9

There are three `levels of delegation’ which determine the level of scrutiny given to delegated legislation.

Question 10

What subordinate legislation receives no scruinty?

Answer 10

Matters such as an order to close a major road while it is being developed.

Question 11

What parliamentary control is exercised over negative instruments receive?

Answer 11

They can become law without a debate or vote in Parliament.

They can be opposed and, in theory, rejected but not amened by Parliament.

Question 12

What parliamentary control is exercised over affirmative instruments?

Answer 12

They cannot come into effect until both Houses have approved a draft SI in a vote.

Question 13

What does it mean that every delegated or subordinate power must be exercised within (intra vires) the power granted?

Answer 13

Usually Parliament passes an Act giving the Secretary of State power to make regulations.

The SoS makes regulations which must be `intra vires’ the Act.

Question 14

What are the judicial functions of the executive?

Answer 14

In addition to the judicial function performed by judges in courts, certain aspects of the judicial role can and have been exercised by members of the executive. This power is derived from both statutory and prerogative sources.

For example, it was the practice of the Home Secretary to have responsibility for setting the tariff sentence for those convicted to be imprisoned `during Her Majesty’s pleasure’ under legislation going back to 1933.

The judicial power of the Home Secretary has been reduced in recent years.

Question 15

What are statutory tribunals?

Answer 15

Until recently, the executive also had the power to decide some legal disputes through a network of tribunals that were funded and administered by the same government departments against whose decisions they heard appeals.

However, tribunals are now administered as part of the court system with a new supervisory body known as the Upper Tribunal.

Question 16

What is the role of the Attorney General and why has it given rise to concerns about separation of powers?

Answer 16

The A-G sits in the Cabinet as the chief legal adviser to the government.

*He or she has the role in deciding whether to bring prosecution in individual cases.

This has given rise to concerns about the possible impact on separation of powers, as a conflict of interest could arise between the inherent political allegiance of any holder of the officer and the wider constitutional obligation to give independent, impartial legal advice to the government.

Question 17

What is the role of the Lord Chancellor and how has their position changed?

Answer 17

The Lord Chancellor is the government minister with responsibility for the administration of justice, including the administration of the court system.

*Until 2005, the position of Lord Chancellor was a fusion of all the branches of the UK political system – as the person holding that position was speaker in the House of Lords, a government minister heading the Lord Chancellor’s department and the head of the judiciary. However, the Constitutional reform act of 2005 which created the UK Supreme Court, defused this position, with the Lord Chancellor now being neither the Speaker of the House of Lords (replaced by the Lord Speaker) nor the head of the judiciary (replaced by the Lord Chief Justice).

*Position of Lord Chancellor has been re-designated as Lord Chancellor and Secretary of State for Justice.

Question 18

What are the key changes made by the Constitutional Reform Act 2005?

Answer 18

*Established the Supreme Court as an institution separate physically and in terms of membership from Parliament.

*Before the highest court in the UK was the HoL.

*Additionally, the role of Head of the Judiciary was taken away from the Lord Chancellor – who now has a purely political role.

*The role was given to the Lord Chief Justice.

Question 19

How are judicial appointments made?

Answer 19

Previously judicial appointments were made by the Lord Chancellor, however, CRA 2005 set up an independent Judicial Appointments Commission – intended to improve the quality of administration of justice and enhance public confidence in the judiciary.

Question 20

How many commissioners are in the Judicial Appointments Commission?

Answer 20

The Commission includes 15 commissioners, comprising a mix of professional, lay and judicial members.

Question 21

What are judicial appointments based on?

Answer 21

Judicial appointments are solely to be based on merit and good character.

Question 22

What is `security of tenure’ in relation to judges?

Answer 22

Judges in the CC, High Court & CoA hold office `during good behaviour’ and can only be dismissed by the monarch following an address presented by both Houses of Parliament.

Judicial officers of other courts, including magistrates, coroners, and tribunal members enjoy less security, and their independence is protected by convention rather than law.

Question 23

Why is security of tenure important?

Answer 23

It is an important factor because it protects judges from politically motivated dismissal by the executive.

Question 24

What is the statutory retirement age for judges and are they paid a salary?

Answer 24

*Statutory retirement age for judges is 70.

*Judges are paid a salary by the Ministry of Justice, the amount of which is determined by an independent pay review body.

Question 25

What safeguards ensure political independence of judges?

Answer 25

*Full-time judges are disqualified from sitting in the HoC.

*Parliamentary rules provide Members of the Cabinet and MPs should not criticise the character and motivation of judges, although this convention is not always respected.

*Courts also lack jurisdiction to inquire into proceedings in Parliament – parliamentary privilege.

Question 26

What is judicial immunity?

Answer 26

Judicial immunity in the UK protects judges from civil lawsuits and prosecution for actions taken in the course of their judicial duties. It’s intended to ensure that judges can make decisions without fear of external pressure, and that the judiciary is impartial.

The extent of the immunity of magistrates is less than that of other judicial office holders, as magistrates may be liable for acts outside their jurisdiction (e.g. imposing a sentence that they do not have the power to impose), if it is provided that they acted in bad faith.

Question 27

What is judicial review?

Answer 27

The judiciary plays an important role in exercising a check on the executive through the use of judicial review.

Question 28

What is the purpose of judicial review?

Answer 28

*To prevent abuse of power by the executive

*To upload individual rights

Question 29

What does judicial review examine?

Answer 29

Judicial review examines the legality of a decision (i.e. whether it was made within the powers granted to the decision-making body, following the correct procedure and on a correct interpretation of the law), and not it’s merits.

Question 30

Do judges have any oversight of legislation or the power to scrutinise proceedings of parliament?

Answer 30

Judges have had no power to scrutinise proceedings in parliament, nor to review primary legislation. However, there are two important exceptions:

*Where the Act was inconsistent with European Union law or is with retained EU law.

*If the Act of Parliament is incompatible with the ECHR, the court may make a declaration to that effect pursuant to the HR Act 1998.

In contrast, secondary legislation can normally be challenged in the courts. Claims for judicial review begin in the Administrative Court.

Question 31

What does judicial respect for executive decisions mean?

Answer 31

The court will not trespass into matters of government policy – particularly on national security. The separation of powers confers responsibility for matters of social and economic policy primarily upon the legislature and the executive, rather than the judiciary.

The courts display reserve in impinging upon the substance of policy decisions, but even here they may legitimately intervene if the decision is devoid of reason and not properly justified.

Question 32

Can court injunctions be granted against executive officers in relation to judicial review?

Answer 32

Case law has confirmed that court injunctions can be granted against executive officers even if acting in their official capacity.

Question 33

What does the UK consist of?

Answer 33

The UK now consists of England, Wales, Scotland and Northern Ireland.

Question 34

What is devolution?

Answer 34

Devolution refers to the grant, by the Parliament of the UK, of legislative powers to the `devolved’ legislatures and administrators (executives) which are:

*The Scottish Parliament and the Scottish Government

*The National Assembly for Wales and the Welsh Government

*The Northern Ireland Assembly and the Northern Ireland Executive

Question 35

What is devolved legislation?

Answer 35

Devolved legislation is the legislation produced by the three devolved Parliaments or Assemblies of Scotland, Wales and NI.

It has the characteristics of primary legislation produced by the Westminster Parliament, but it cannot be created without the enabling powers of an Act of the UK Parliament.

Question 36

What are devolved matters?

Answer 36

Areas of government where decision-making has been delegated by the UK Parliament to a devolved administration.

*For example, education is a devolved matter in Scotland, as is environment. This means Scotland can make its own laws on those areas.

*However, all devolved laws are still subject to review by the SC.

Question 37

What are reserved matters?

Answer 37

Decisions still taken by Parliament at Westminster, even though they have effect in Scotland, Wales and Northern Ireland.

Immigration, defence and foreign policy are examples of reserved matters.

Question 38

What is the purpose of devolving?

Answer 38

The process of devolution is designed to decentralise government power, and bring it closer to the people governed, so that local factors are better understood and given more prominence in decision making.

*This is a form of separation of power, as the principle is designed to prevent excessive concentration of power.

*Also reflects the importance of nationalist opinion in the constituent countries of the UK.

Question 39

How are devolved administrations funded?

Answer 39

*Budgets for the devolved administrations are set within the framework for public expenditure control in the UK.

*Once these budgets have been decided, devolved administrations have the freedom to allocate spending within those limits, as long as their plans comply with UK Government’s fiscal policy.

*Funding for devolved administrations is determined by `spending reviews’, which are scrutinised by Parliament.

*Devolved administrations do not depend entirely on grants from the UK Government but also their local taxes.

Question 40

What is the Memo of Understanding 2012?

Answer 40

This memo is between the UK Government, the Scottish Ministers, the Welsh Ministers, and the Northern Ireland Executive Committee contains a series of non-legally binding principles which underlie relations between the administrators.

Question 41

What is the rule in relation to devolution in Scotland?

Answer 41

General rule: Acts of Parliament extend to Scotland only if they deal with non-devolved or “reserved” matters, such as immigration.

However, although the Scotland Act 1998 recognises that the UK Parliament will “not normally legislate with regard to devolved matters without the consent of the Scottish Parliament”, it is not explicitly prevented from doing so.

Question 42

What is the rule in relation to devolution in Wales?

Answer 42

Remember Wales is not a separate legal jurisdiction from England, however, applicable law may be different in England and Wales.

*The Welsh government is now based on a `reserved matters’ model.

General rule: Acts of Parliament will only apply to Wales if they deal with reserved matters.

The power of the Welsh Assembly to make Acts: “does not affect the power of the UK to make laws for Wales”.

Question 43

What is the rule in relation to devolution in Northern Ireland?

Answer 43

The Assembly selects the ministers of the Northern Ireland Executive, which is based on a power-sharing model.

In the same way as Scotland and Wales, the general rule is that Acts of Parliament may only extend to Northern Ireland if they cover non-devolved matters.

However, the UK Parliament may still legislate on devolved matters.

Question 44

What is the role of the Supreme Court in legislative conflict?

Answer 44

Has jurisdiction to resolve questions of whether legislation by the devolved administrations goes beyond the scope of their legislative competence.

The SC will look at the terms of the devolved legislation and decide whether it falls within the `reserved matters’ that are outside the competence of the devolved administration. If that is the case, the devolved legislation is not law.