Separation Of Powers Flashcards
Which branch is the most fluid?
Executive
Why is there a fusion of powers in the uk?
Parliamentary system - the legislature selects and contains the political part of the executive which is dependant on the legislature for its power.
Why are there potential dangers with fusion of powers?
Whips on MPs
First Past the Post = large govt majority
What are Henry VIII clauses?
Acts that contain clauses allowing the executive to amend/repeal provisions in an Act using secondary legislation
In what context do Henry VIII clauses have particular significance?
Brexit
What are the three levels of delegation?
No scrutiny
Negative instruments - can become law without debate/vote, can be opposed/rejected but not amended
Affirmative instruments - both houses approve
What does intra/ultra vires mean?
Intra vires - action/legal provision within powers
Ultra vires - action/legal provision outside powers
Who decides if a regulation is intra vires?
Administrative court
What does the delegated powers and regulatory reform committee (HoL) do?
Examined delegated powers in primary legislation to see what powers ministers are asking for
What does the merits of statutory instruments committee (HoL) do?
Examines secondary legislation resulting from the exercise of powers in parent act
What does the Joint Committee on statutory instruments do?
Ensures statutory instruments comply with parent act requirements
Who in the executive has most notably had judicial functions?
Home Secretary
How did the tribunals, courts and enforcement act 2007 reduce the overlap in separation of powers?
Tribunals we’re funded and administered by government departments
Created upper tribunal to supervise/administer instead
What were the reforms of the Lord Chancellor in the constitutional reform act 2005?
- no longer lords speaker
- no longer head of judiciary
- judicial appointment powers transferred to judicial appointments commission
- renamed ministry of justice/ Lord chancellor and Secretary of State for justice
What were the constitutional reform act 2005 reforms partially inspired by?
Article 6 ECHR - courts/tribunals impartial and independent from executive
What is the role of the attorney general and the conflict of interest
- sits in cabinet
- chief legal advisor to government
- decides whether to bring prosecution in individual cases
- conflict - political allegiance of office holder and wider obligation to be independent and impartial
What does section 3 constitutional reform act 2005 say about judicial independence?
- Lord chancellor/ministers must uphold independence
- must not seem to influence judicial decisions through special access
- Lord chancellor must have regard to the need to defend independence/support judiciary
What was the highest court historically?
House of Lords (appellate committee)
What are judicial appointments solely based on?
Merit and good character
What is judicial pay and tenure?
- judges hold office “during good behaviour”
*may only be dismissed by monarch following address by both houses - statutory retirement age: 70
- independent pay review body
What is the political independence of judges?
- full time: disqualified from sitting in commons
- cabinet/MPs should not criticise character/motivation (convention)
- courts lack jurisdiction to inquire into proceedings in parliament
What is judicial immunity from civil actions?
- judges = immune from legal proceedings that would otherwise be tortious AS LONG AS part of judicial capacity
- magistrates may be liable for acts outside of their jurisdiction
When can hearings be held in private?
- publicity would defeat the object of the hearing
- national security
- confidential information
- interests of child
What is the role in legislation of the three organs of the state?
- executive - government proposes primary legislation for consideration + drafts secondary legislation
- legislature - propose legislation (PMBs) + decides whether executive proposals become law
- judiciary - interprets parliaments intentions in making legislation + develops common law
How did the court get away with making new law in Shaw v DPP?
They applied existing principles common law (conduct calculated to corrupt public morals is an indictable misdemeanour)
What was shown by the courts in malone v mpc?
Deference to parliament (right to privacy)
What did Gillick show about judicial lawmaking?
- senior court judges are often required to make decisions in the absence of statute/common law
- common law develops with changing political/cultural climate
How was the law modernised in R v R?
The court had a duty to alter rules to reflect todays society if legitimate in light of an enactment of parliament (marital rape)
Did the court defer in bland?
No, worker from existing principles distinguishing acts and omissions
When might the court not/be cautious about developing the law?
- insufficient common law
- novel and contentious
- political or ethical
How can Parliament override judge made law?
Passing legislation
Do judges have the power to scrutinise parliamentary proceedings?
No
Do judges have the power to review primary legislation and is there an exception?
No
Exception - where an Act is incompatible with ECHR the court may make a declaration of incompatibility
Do judges have the power to review secondary legislation?
Yes - can be challenged and invalidated or quashed.
What is the legal mechanism for challenging secondary legislation?
Judicial review carried out by the Administrative Court (Specialist KBD High Court)
What is the purpose of judicial review?
- prevent abuse of power by executive
- uphold individual rights and interests
What does judicial review examine?
The legality of a decision (not merits)
Can the executive ignore a court decision?
No, can only be overturned by a higher court
Why did the court overrule in Miller 2?
It would have prevented parliament from carrying out its proper constitutional functions (legislature and supervision of executive)
Why did the court overrule in R v Home Secretary ex p Fire Brigades Union?
Because they were bypassing the will of parliament
What are the judicial intervention dividing lines?
- courts require all decisions to be within the scope of relevant legal power
- courts reserve impinging on substantial policy decisions, but may if devoid of reason
- move from culture of authority to culture of justification
