Public law: Separation of Powers Flashcards
What is separation of powers
a political theory developed by Montesquieu that identifies three branches of state and argues that to prevent arbitrary of govt, these branches should be kept apart with separate functions
Legislature: makes the law
Executive: implements the law
Judiciary: resolves disputes about the law
How does the parliament scrutinise the executive?
5
House of Commons Disqualification Act 1975: members of the civil service, police, and army are prevented from holding Parliamentary office. s.2 limits number of govt minsters who may sit in the House of Commons to 95
Parliamentary scrutiny of the executive is exercised by:
questions and debates on bills
general and select committees
the Parliamentary Commissioner for Adminstration (Ombudsman)
Private members’ bill
How do constitutional conventions and limits on Royal Prerogative keep the executive in check?
Individual Minsterial Responsibility: Ministers are accountable to Parliament for their departmental and personal conduct
Collective Cabinet responsbility: vote of no confidence unless 14 days or alternative govt. The defeated Prime Minster would also be required to resigned after l lost vote of confidence.
Military operations: emerging convention that Parliament should have opportunity to debate issue before the Govt commits troops.
Constitutional Reform and Governance Act 2010 gives legal effect to any resolution by Parliament that a treaty should not be ratified.
In what way the separation of powers may be undermined
In the words of Lord Hailsham, the UK system of govt is an elective dictatorship - the govt effectively controls parliament:
The fptp electoral system usually results in an inbuilt majority - bills rarely are rejected
whip will impose pressure on governing party MPs to vote according to govt wishes
culture of political patronage means career-minded MPs face pressure to vote for bills
Govt defines the Parliamentary agenda
PM and cabinet minsters is part of the legislature
Delegarted/subordinated leislation are rarely scrutinised
A weak HoL cannot act as an additional brake to object the will of HoC (1911 and 1949 +
In what ways the separation of the executive and the judiciary is achieved
(CRA, tenure, JR, Conventions)
S.3 CRA 2005 Ministers involved in justice have a duty to uphold and protect the independence of the judiciary, and mustn’t seek to influence judicial deciions
Lord chancellers ceases to be the head of the judicary and cannot appoint judges
Judicial Appointments Commission - appointment of judges is an independent process and free from political influence
Security of tenure exists for senior judges during good behaviour. To remove a judge both houses must pass a vote and the Queen must then dismiss the judge
Judicial salaries are determined by independent bodies
Judicial review
Constitutional conventions : the executive will not critise judicial decisions
The judicary will not involves with part politics (! Belmarsh)
In what ways the separation of the legislature and the judiciary is achieved
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S.1 HoC Disqualification Act 1975 - Judges cannot sit as MPs
Parliamentary Privilege: MPs are not liable for statement made in Parliament
The sub-judice rule: MPs refrain from discussing current court cases
CRA 2005:
Lord chancellor is no longer the speaker of the HoL
Replacement of the Law Lords
Conventions:
MPs will not criticize judges.
But increasingly do - in the fields of HRA 1998 and anti-terror legislation
Judges will not involves themselves in politics:
But - recent phenomena of the politicisation of the judiciary
Declarative theory: Judges only declare law, and do not develop/make law
Argument against the existence of a separation of powers (3)
Legislative theory： judges play a significant role in making the law by interpreting statute and also actually influencing statute But Burmah Oil shows that Parliament can invalidate court decision
R Jackson shows that obiter can be prepared to strike down legislation which infringed the rule of law.
A separation between the judiciary and legislature does exist, but there is a creeping interference between the two, and the judiciary does have a legislative function
