PUBLIC LAW L4 - Separations of power - SOP THE EXECUTIVE Flashcards
What have commentators warned about the fusion of powers? (3)
They have warned of the potential dangers of it, given the strong degree of control exercised by the political parties over their MPs through the whipping system and the tendency since 1945 for governing parties to enjoy large parliamentary majorities in an electoral sytem.
Does the membership of the executive and parliament overlap? (4)
It overlaps to a significant extent. The legislature selects and contains the political part of the executive branch, meaning this system is often seen to create a fusion of powers rather than a separation of powers. The relationship between the executive and the legislature can de described as a system of checks and balances due to the overlapping roles.
What is the whipping system? (2)
A method of ensuring party discipline in parliamentary votes. Each party appoints a whip who instructs their members on how to vote on each issue.
What does Halsbury’s Laws of England, Vol 20 Chapter 1(10 paragraph 10 state? (1)
Executive functions are incapable of comprehensive definition, for they are merely the residue of functions of government after legislative and judicial functions have been taken away.
Describe the actions of the executive. (4)
The executive exercises the administrative functions of government. It carries out recognised legislative functions under the authority of primary legislation/Acts of Parliament. It makes secondary legislation in the form of SI and regulations. The authority for secondary legislation to be made comes from Acts of Parliament.
What is parliamentary scrutiny limited by? (2)
Time and resources.
What are the three levels of delegation which determine the level of scrutiny given to delegated legislation? (6)
No scrutiny - no parliamentary scrutiny e.g. order to close a major road whilst being developed.
Negative instruments - can become law without debate or vote in Parliament, can be opposed or rejected but not amended by Parliament.
Affirmative instruments - most important delegation of power are subject to affirmative resolution, cannot come into effect until both houses have approved a draft SI in a vote.
What was the result of the Tribunals, Courts and Enforcement Act 2007? (2)
It meant that tribunals administered as part of the court system under a body known as Upper Tribunal, meaning the executive no longer had the power to decide legal disputes through tribunals administered by the same government departments whose decisions they heard appeals.
Where does the Attorney General sit and what is their role? (2)
Sits in cabinet as the chief legal advisor to the government. They have the role in deciding whether to bring a prosecution in individual cases.
Is the attorney general’s role political? (3)
It can be perceived as political. There are concerns regarding the possible impact on the doctrine of separations of powers, as conflict of interest could arise between the inherent political allegiance of any holder of the office. An example would be the legal advice given to the Blair government by the Attorney General - Lord Goldsmith - in the lead up to the war in Iraq in 2003.
Who is the Lord Chancellor? (1)
The government minister with the responsibility for the administration of justice, including the administration of the court system.
What was the impact of the Constitutional Reform Act 2005? (1)
It removed some of the overlaps in the executive and judicial roles of the Lord Chancellor.
