Separation of power

Question 1

Traditional UK model

Answer 1

Overlapping powers

Question 2

SOP, Professor Wade’s standard: To observe the doctrine there should be:

Answer 2

• No overlaps in personnel
• No overlaps in functions
• No interference with functions.

Question 3

UK model - Overlaps in personnel

Answer 3

• Legislature and executive
• ALL ministers (by constitutional conventions) MUST be members of the legislature.
• Judges - The position before the constitutional reform act 2005
• Senior judges used to be members of legislature and judiciary.

Question 4

UK model - Overlaps in functions

Answer 4

• Delegated legislation
• Law made by executive not parliament
• Judge made law
• do judges make law

Question 5

Overlaps in functions cases

Answer 5

• Shaw v DPP [1962]
• R v R [1992]
• R v Brown [1993]

Question 6

The independence of the judiciary

Answer 6

• Wade conclusion - seperation of power in England “means little more than an independent judiciary.”
• Guardians of the constitution
• Ensure Government Act according to law
• Act as influential advisors.

Question 6

UK model - Overlaps in interference

Answer 6

• Legislature and executive
• House of Commons can oust the government
• Vote of no confidence
• Legislature and judiciary
• Impeachment
• Judges can only be removed by Parliament.

Question 7

Judicial independence and the rule of law: Legislation

Answer 7

• Act of Settlement [1700]
• Constitutional Reform Act [2005]
• Lord Chancellor and Ministers must uphold judicial independence.

Question 8

Judicial independence is supported by other key issues:

Answer 8

• Appointment
• Immunity
• OpenCourts
• Political independence
• Contempt of court
• Lay persons.

Question 8

Constitutional Reform Act 2005: Aim

Answer 8

To strengthen the separation of powers.

Question 9

Constitutional Reform Act 2005: Effectiveness

Answer 9

Very controversial Act, as it most likely affects the judiciary.

Question 10

Constitutional Reform Act 2005: Why change? (case)

Answer 10

• Remove some of the anomalies in relation to the judiciary
• McGonnell v UK [2000]

Question 11

CONSTITUTIONAL REFORM ACT 2005: Section 1

Answer 11

The rule of law

Question 12

CONSTITUTIONAL REFORM ACT 2005: Section 2

Answer 12

Lord Chancellors role retained but not reformed

Question 13

CONSTITUTIONAL REFORM ACT 2005: Section 3

Answer 13

Guarantee of continued judicial independence

Question 14

CONSTITUTIONAL REFORM ACT 2005: Section 7

Answer 14

Lord Chief Justice - Head of judiciary

Question 15

CONSTITUTIONAL REFORM ACT 2005: Section 23

Answer 15

Supreme Court - Law Lords removed from the House of Lords.

Question 16

CRA 2005 Key sections: Parts 4 and 5, Schedules 12-15:

Answer 16

Led to the creation of the Judicial Appointments Commission.

Question 17

Former roles of the Lord Chancellor

Answer 17

• 1400 year old office
• Highest office in the legal world : member of the cabinet, head if the judiciary, judge, speaker of the House of Lords, and royal duties.
• 5,000 references to LC in statute.

Question 18

Current role of the Lord Chancellor

Answer 18

• Head of the judiciary is now the Lord Chief Justice
• LC no longer a judge
• Title of LC is to remain - to be a minister with important responsibilities (including to protect judicial independence.)
• Alex Chalk MP is the current Lord Chancellor and Secretary of State for Justice.

Question 19

The supreme court

Answer 19

• The law lords were removed from the House of Lords and placed in new ‘separated’ Supreme Court of the UK.
• Supreme in name (not in nature cf. USA supreme court.)
• Opened October 1st 2009.

Question 20

Judicial appointments commission

Answer 20

• Embedded, enduring independence
• Increased diversity?
• Launched April 2006.