PUBLIC LAW L4 - Separations of power - OVERVIEW Flashcards
What is separations of powers? (2)
A long-established theory / ideal. Different political cultures tend to have differing perspectives on the degree to which the theory can and should be implemented.
What did Lord Acton state? (2)
‘Power tends to corrupt; absolute power corrupts absolutely’, which links to the premise that the concentration of all types of state power into the same hands can lead to iniquitous or inefficient government.
When, in what and what did Montesquieu state? (2)
In the 18th century in De L’Esprit des Lois. He stated that liberty would be best protected in a state if there was a separation of powers in to judicial, executive and legislative branches.
Describe the UK constitution in terms of separation of powers. (3)
It is uncodified and has evolved over centuries. There is no clear separation of powers between the executive and the legislature.
Compare the USA and UK constitution. (1)
USA is far more separated than UK constitution.
Give an example of an overlap in UK constitution. (1)
Virtually all government ministers are also MPs e.g. Michael Gove was minister for cabinet office and MP for Surrey Health.
What is the role of the executive in law-making? (3)
To propose laws. It proposes primary legislation to be considered by Parliament and it drafts secondary legislation.
What is the role of the legislature/Parliament in law-making? (2)
To scrutinise and approve or reject proposed laws.
What is the role of the judiciary in law-making? (3)
It interprets law. It interprets Parliament’s intentions when it enacted the law and develops the common law.
Why is there often controversy regarding the role of the judiciary? (3)
They implement the law through the interpretation of state - recognised as their constitutional responsibility - but there is a fine line between developing and making the law and sometimes the courts are accused of excessive judicial activism.
Explain the importance of the case of R V R. (2)
It is an example of judicial activism. It overturned an apparent long-standing common law principle that, by virtue of marriage, a woman consents to sexual intercourse with her husband and so the offence of ‘marital rape’ is not an offence known to law.
Explain the importance of the case of Malone V Metropolitan Police Commissioner 1979? (3)
It is an example of judicial deference. Malone was charged with handling stolen property but prosecution admitted there had been interception of Malone’s telephone conversation on the Secretary of State’s authority. The court found for the MPC and held there was no prohibition of telephone interception in English Law and there was no right to privacy in English Law.
Explain the importance of Gillick V West Norfolk Health Authority. (4)
It illustrates that judges in senior courts are often required to make decision in the absence of any explicit statutory or common law authority and that the common law should develop with the changing political and cultural climate. The case asked the court to decide if contraception should be given to children U16 without the knowledge of their parents. It was decided that if the minor was competent to consent to medical treatment then they should.
What does case law addressing the separations of powers show? (2)
That courts will not encroach on what they see as areas of government policy. However, they will protect judicial authority from interference by the executive.
Can Parliament changes legislation and give an example. (4)
Yes to respond to an unwelcome decision by the courts. They can make or unmake any law whatever in the words of Professor A.V Dicey. If the courts establish a legal principle which Parliament wants to change, it is free to do so, e.g. Burmah oil company ltd. V Lord Advocate it was decided that compensation should be paid to Burmah oil as their oil field were destroyed by British Forces during WW2. Following this, Parliament passed the War Damage Act 1965, which exempted the crown from paying compensation or property damage or destruction in war.
