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Public Law 4 ELS 1 > Separation Of Powers > Flashcards

Separation Of Powers Flashcards

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1
Q

What is separated in the separation of powers

A

Executive, legislature and judiciary
- powers within a constitution

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2
Q

Overlap example of 3 different powers

A

Executive: Gov proposes primary legislation
Legislature: parliament decides whether Gov proposals for laws become Acts - individual MPs can also propose private member bills
Judiciary: interprets P’s intention in making laws and develops the common law

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3
Q

Judicial activism

A

Judges often seen as stepping over the line into creating law eg. Shaw v Director of Public Prosecutions

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4
Q

Judicial deference

A

leaving the powers up to P eg. Malone v Metropolitan Police Commissioner said ‘only parliament can create such a right

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5
Q

Gillick v West Norfolk Health Authority shows 2 things

A
  • senior court judges often have to make decision in absence of statute or common law authority
  • Common law develops with changing political and cultural climate
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6
Q

Gillick v West Norfolk Health Authority case facts

A
  • In the case it was said a child under 16 could lawfully be given contraception if they fulfilled ‘Gillick competence’ (used to be implied they would need parental consent so it had never before been decided)
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7
Q

R (Evans) v AG

A

Evans requested copies of Prince Charles’ correspondence lobbying Gov agencies and Gov dept refused
- upper tribunal held many of the letters referred to as ‘advocacy correspondence’ should be disclosed
- AG issued a certificate under S53(2) of Freedom of Information Act 2000 overriding the Tribunal’s decision
- Evans sought judicial review and the case reached SC, saying:
- AG’s conduct had contradicted fundamental principle that a court’s decision could not be ignored or set aside by anyone, including the executive

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8
Q

Parliament can respond after something happens and change the laws altogether

A

Burmah Oil Company Ltd v Lord Advocate (HoL decided compensation payable so P then introduced War Damage Act 1965, which examined the Crien from paying compensation for property damage or destruction in war)

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9
Q

Executive roles

A

They are merely the residue of functions of government after legislative and judicial functions have been taken away
They entail the formulation or application of general policy in relation to particular situations or cases
They include: execution of law and policy, maintenance of public order, management of crown property etc

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10
Q

Fusion of powers (executive)

A

(senior gov ministers are also members of P)
Executive carries out a lot of legislative functions through secondary legislation (3500 SIs annually)
Different levels of delegation for secondary legislation: no scrutiny, negative instruments (don’t need affirmation from P but can block), Affirmative instruments (both houses must approve)

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11
Q

Overlap between Home Secretary and judiciary

A
  • Home Secretary used to be able to set tarrif sentence
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12
Q

Tribunals and fusion of power

A

Statutory tribunals
Executive used to decide legal disputes in some tribunals but this was replaced with Upper Tribunal through Tribunals, Courts & Enforcement Act 2007

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13
Q

AG fusion of powers

A

AG sits in Cabinet as a legal advisor to Gov and has role in deciding whether to bring a prosecution
- may be conflict of interest between political allegiance and wider constitutional obligation to have impartial legal advice eg. Blair Gov legal advice re War in Iraq

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14
Q

Lord Chancellor fusion of powers

A

Gov Minister with responsibility for administration of justice
Constitutional Reform Act 2005 limited responsibilities
Now his role is political

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15
Q

Judiciary must not be affected by political influence and must be independent from Gov

A

Act of Settlement 1701 which confirmed judges could not be removed from their posts by Gov ‘during good behaviour’

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16
Q

Constitutional Reform Act developing independence of judiciary

A
  • S3(1) Lord Chancellor, other ministers of the crown and all with responsibility relating to the judiciary, or otherwise to the administration of justice must uphold continued independence of the judiciary
  • 3(5) Lord Chancellor and other ministers of the crown must not seek to influence particular judicial decisions through any social access to the judiciary
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17
Q

CRA 2005 affect on Supreme Court

A

For centuries the highest court was House of Lords which was a huge overlap between judiciary and legislature
- created new Supreme Court
- role of head of judiciary (Lord Chancellor) taken away and instead given to Lord Chief Justice

18
Q

CRA 2005- judicial appointments

A

Appointment of judges up to and including HC were made by Lord Chancellor a member of executive and legislature (and former Law Lord)
S6 created independent Judicial Appointments Commission
15 commissioners, professional, lay and judicial members
S63- judicial appointments are solely based on merit and good character

19
Q

Judicial pay and tenure Act of Settlement 1701

A

judicial security of tenure (stops politically motivated dismissal by executive)

20
Q

Judicial pay and tenure Senior Courts Act 1981

A

S11 judges Crown, HC, CoA, and in S33 justices of the SC state judges hold office during ‘good behaviour’ and may only be dismissed by the monarch following an address presented by both Houses
- lower courts enjoy less security but independence is protected by convention
- Judges cannot be older that 70
- Judges paid salary by ministry of justice (determined by independent pay review body)

21
Q

Judicial Political independence

A
  • full time judges disqualified from sitting in HoC under House of Commons Disqualification Act 1975
  • Convention that members of cabinet and MPs should not criticise the character or motivations of judges
  • Courts lack jurisdiction to inquire into proceedings in P - Article 9 Bill of Rights 1689
22
Q

Judicial immunity

A

Judges immune from legal proceedings against them for actions that could otherwise be tortious like defamation
- this is only provided the action is done in a judicial capacity in a court of justice
- Mags have less immunity
- Sirros v Moore circuit judge was entitled to immunity because his acts were in judicial capacity even if mistakenly

23
Q

Judicial review

A

If executive/public body reaches a decision which is wrong in law the decision may be quashed by Administrative Court
Judicial review examines the legality of a decision (made within powers, following correct procedure and on correct interpretation of the law) and not on its merits (this is for executive to decide)

24
Q

Judges usually have no power to review primary legislation with two exceptions:

A
  • Act inconsistent with EU law or is retained in EU law
  • Act of P incompatible with European Convention of Human Rights
25
Q

Judiciary & executive decisions

A

Court should not trespass into matters of gov policy eg. Council of Civil Service Unions v Minister of Civil Service
- it was decided the case requirements of national security outweighed those of fairness so this was a matter for executive to decide

26
Q

Justiciability

A

Judicial review has developed to the point where it is possible to say that no power whether statutory common law or under prerogative is no longer inherently reviewable

27
Q

Executive scrutiny

A

courts cannot make decision based on policy but courts display a reserve in impinging upon substance of policy decisions, but even here they may legitimately intervene if the decision is devoid of reason and not properly justified

28
Q

Enforcement against executive

A

M v Home Office confirmed court orders could be granted against executive officers even if acting in their official capacity
- a Zairian national came to uk for political asylum but his claim was rejected
- M applied to HC with new grounds as to why he should not be removed and court made an order to to Secretary of State to stop removal so court could consider the case and SOS ignored order and M was removed from UK
- SOS found in contempt of court

29
Q

Judges upholding will of P

A

R v Secretary of State for Home Deoartment Ex p Fire Brigades Union- Secretary of State announced intention to not bring into force a statutory compensation scheme which was approved by P but instead wanted to introduce a radically different one under prerogative power
- court found Home Secretary acted unlawfully and this was an abuse of power

30
Q

Devolution

A

Devolution if the grant by UK parliament of legislative powers to the devolved legislatures and executives in the UK
This is because UK parliament are the principle legislative authority in the UK

31
Q

The other legislatures and executives are

A

Scottish parliament, National Assembly for wales, Northern Ireland assembly, Scottish government, welsh government, Northern Ireland executive

32
Q

Devolved legislation

A

Legislation produced by devolved parliaments or assemblies of Scotland, Wales & N Ireland
It has characteristics of primary legislation but cannot be created without enabling powers of an Act of UK Parliament
Scotland Act 1998 & 2016
Govt of Wales Act 1998 & 2006
Wales Act 2017
Northern Ireland Act 1998 & 2006

33
Q

Devolved matters

A

matters where an Act has delegated powers to devolved administration
Eg. Education is devolved matter in Scotland (they can make their own laws on this area)
- all devolved laws are subject to review by the SC

34
Q

Reserved matters

A

decision still take by P at Westminster despite having effect in Scotland, Wales & N Ireland
Eg. Immigration, Defence, foreign policy

35
Q

Why Devolve

A

Designed to decentralise Gov Power and bring closer to people governed so local factors better understood- this is a form of separation of powers
Devolution introduced after public referendums in all those countries

36
Q

Devolution- funding

A

Responsibility for fiscal policy and public expenditure in hands of HM Treasury within central Gov Westminster for whole of UK
Budgets for delved administrations are set within framework of public expenditure control in UK
Once budgets decided, devolved administrations have freedom to allocate spending within those limits as long as plans comply with UK Gov fiscal policy
Funding for devolved administrations is determined by spending reviews scrutinised by P
Devolved administrations do not entirely rely on grant from UK P, they also have local taxes

37
Q

Memorandum of Understanding 2012

A

A series of non-legally binding principles which underlie their relations, made between Welsh Ministers, Scottish Ministers and N I executive committee
It created a joint ministerial committee

38
Q

Joint ministerial committee terms of reference

A
  • consider non-devolved matters which impinge on devolved responsibilities and vice versa
  • Discuss respective treatment of devolved matters within their administrations
  • Keep arrangements for liaison between UK Gov & devolved admins under review
  • Consider disputes between admins
39
Q

Devolution in Scotland

A

General rule is Acts of UK extend to Scotland only if they deal with reserved matters like immigration
- S28(7) Scotland Act 1998 states the power of Scottish parliament to pass Acts ‘does not affect the power of P of United Kingdom to make laws for Scotland’
- S28(8) recognised P will ‘not normally legislate with regard to devolved matters without consent of Scottish P’ it is not explicitly prevented from doing so
- Wording embodies Sewel convention but does not give binding legal effect
- Consent of a devolved Parliament for Westminster to legislate on a devolved nagger is indicated by way of a ‘Legislative Consent Motion’ in the devolved P

40
Q

Devolution in Wales

A

Wales is not separate legal jurisdiction from England like Scotland and N Ireland
Wales Act 2017 extended powers devolved to Wales
- matters reserved to UK Gov now listed in Schedule 7A of Government of Wales A t 2006
- Sewell convention also reflected in GOWA 2006 S107(6)
- Consent of Welsh assembly sought by way of legislative consent motion like in Scotland and N Ireland
- Section 107(5) makes it clear power of Welsh assembly to make acts does not affect power of UK to make laws for wales

41
Q

Devolution in N Ireland

A

Devolved institutions in N Ireland constituted by Northern Ireland Act 1998
Northern Ireland Assembly is the devolved legislature- unicameral body of 90 democratically elected members
Assembly selects ministers of N Ireland Executive
Some rules apply to N Ireland as the others
- S5(6) Northern Ireland Act provided UK P may still legislate on devolved matters
- Sewel convention still applies
- Assembly must pass legislative consent motion- convention

42
Q

Legislative conflict & SC

A

UK Supreme Court had jurisdiction Under Scotland Act 1998, Nirthern Ireland Act 1998 & Gov of Wales Act 2006 (amended Wales Act 2017) to resolve questions of whether devolved administration have gone beyond scope of legislative competence
Decide whether it falls within reserved matters, if so the devolved leg is not law

Public Law 4 ELS 1 (8 decks)

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