Separation of powers

Question 1

Are there overlaps in the separation of powers in the UK?

Answer 1

• Yes - cabinet minister (EXEC) is also MP (PARL)
• All three state organs have a role in making laws (propose, vote on, and interpret legisation)

Question 2

What is judicial activism and judicial deference?

Answer 2

• Activism = courts will go beyond appicable law
• Deference = courts will not encorach on what they see as GOV policy

Question 3

Does the judiciary ‘make’ law?

Answer 3

• No they interpret it
• Decisions can be countered with new legislation from PARL

But may make decisions in absence of explicit authority

Question 4

Does the executive ‘make’ law?

Answer 4

They can only propose new legislation but they can draft secondary legislation

Question 5

What general policy does the executive formulate on?

Answer 5

Maintenance of public order, management of Crown property, direction of foreign policy, conduct of military, provision and regulation of education, public health, transport and NI

Question 6

What does the ‘fusion of powers’ mean?

Answer 6

Refers to the overlap re personnel/functions between EXEC and PARL; PARL contains political part of the EXEC

Danger of fusion given traditionally strong degree of control exercised by political parties through whipping system

Question 7

How does PARL ‘confer power’ on GOV?

Answer 7

Through enactment of primary legislation

Allowing secondary legislation

Question 8

What is a statutory instrument and what does it contain?

The legislative functions of the EXEC

Answer 8

• Secondary (/subordinate/delegeted) legislation EXEC can enact through power from Act of PARL (primary leg)
• Contains Sec of State’s further rules on specific area identified by ‘parent’ Act of PARL

Question 9

What are the 3 ‘levels of delegation’?

Level of scrutiny given to delegated legislation

Answer 9

1. No scrutiny
2. Negative instruments - can become law without debate/vote but can be opposed
3. Affirmative instruments - cannot come into effect without both Houses’ approval

Question 10

What does it mean that delegated/subordinate power must be exercised ‘intra vires’?

Answer 10

Must be exercised within power granted

Will usually be granted by primary legislation

Question 11

Do the EXEC have wide judicial functions?

Answer 11

Was Home Secretary’s role - e.g. setting tariff sentence - but has been reduced in recent years

Question 12

What does the Attorny General do?

Answer 12

Sits in Cabinet as chief legal adviser with role of deciding whether to bring prosecution in individual cases

Question 13

Does the Lord Chancellor’s role still have overlaps with legislative and judicial functions?

Answer 13

Responsibility for administration of the court system but CRA removed overlaps

Question 14

What does the Judicial Appointments Commission do?

Answer 14

Make judicial appointments based on solely merit and good character (independently)

Question 15

What is judicial security of tenure?

Answer 15

Judges can only be dismissed by the monarch following address presented by both Houses

Protects judges from politically motivated dismissal by EXEC

Applies to Crown, High and Supreme Court judges and upwards

Question 16

Can courts inquire into proceedings in PARL?

Answer 16

No - part of parliamentary privilege principle

Question 17

What does ‘judicial immunity from civil actions’ mean?

Answer 17

Judges are immune from legal proceedings for actions that would otherwise be tortious (e.g. defamation) as long as action done in judicial capacity in court of justice

E.g. judge would not be immune when commenting to media

Exent of immunity of magistrates is lesser - can be liable for acts outside jurisdiction if proved they acted in bad faith

Question 18

What is the twofold purpose of judicial review?

Answer 18

1. Prevent abuse of power by the EXEC
2. Uphold individual rights

Secondary legislation can also be challenged in same way

Question 19

What part of a GOV decision does judicial review examine?

Answer 19

Its legality

Not merits

Question 20

What are the exceptions to the rule that judges cannot scrutinise proceedings in PARL or review primary legislation?

Answer 20

1. Where Act inconsistent with (retained) EU law
2. If Act incompatible with ECHR - can make declaration of incompatibility

Question 21

Do judges have concern with government (social and economic) policy?

Answer 21

No - separation of powers means responsibility for policy is upon LEG and EXEC

Especially national security

But courts can still check whether policy is within the scope of relevant legal power/duty and arrived at through procedural fairness!

Question 22

Are the executive subject to enforcement of court orders?

Answer 22

Yes - as with everybody else

Will be in contempt of court otherwise

Question 23

Can judicial review function as a way of protecting decisions made by PARL?

E.g. Sec Sec of State announces intention not to bring into force PARL-approved scheme

Answer 23

Yes - the legislative measures of the EXEC depend on legal validity on approval by PARL

E.g. will have acted unlawfully = abuse of power

Question 24

What is devolution?

Answer 24

The grant by PARL of legislative powers to ‘devolved’ legislatures and administrations

Scot PARL, Nat Ass for Wales, NI Ass, Scott GOV, Welsh GOV, NI EXEC

I.e. all have their own legislative and executive bodies

Question 25

What is devolved legislation and what does it require?

Answer 25

• Is legislation produced by deolved PARLs
• Requires enabling powers of an Act of UK PARL

Question 26

What are reserved matters?

Answer 26

Decisions still taken by PARL at Westminster which have an effect on Scotland, Wales and NI (e.g. immigration, defence, foreign policy)

Cf devolved matters (education in Scotland)

Question 27

Who does the responsibility for fiscal policy/public expenditure across whole UK belong to?

Answer 27

HM Treasury (central GOV)
* Devolved authorities spend within budgest set by treasury
* Spending must comply with UK GOV’s fiscal policy

Local taxes will also be source of funding

Question 28

What does the Memorandum of Understanding set out?

Answer 28

A series of non-legally binding principles which underlie relations between the administrations

Question 29

What are the terms of reference of the Joint Ministerial Committee?

Answer 29

• Consider non-devolved matters which impinge on devolved responsibilities
• Discuss respective treatment of devolved matters
• Keep arrangements for liaison between UK GOV and devolved administrations
• Consider disputes between administrations

Question 30

Is UK PARL expressly prevented from legislating re devolved matters in Scotland?

Answer 30

Not expressly prevented, but general rule is that Acts only extend to Scotland if they deal with reserved matters e.g. immigration

I.e. Law says they can make laws for Scotland, but they won’t

Same applies for Wales

Question 31

What is the general rule re Acts of PARL applying to Wales and NI?

Answer 31

Only apply if they deal with reserved matters

But same thing as Scotland re not expressly prevented

Question 32

What is the effect of the Sewel Convention?

Answer 32

An Act of PARL on a devolved matter will only extend to a devolved country if their legislature passes a legislative consent motion

This is a convention not a legal requirement

So if UK PARL wants to legislate on a matter that a devolved administration can legislate on, it must seek consent

Question 33

Can Westminster legislate on a devolved matter without seeking a consent motion from Scottish PARL as per Sewel Convention?

Answer 33

Legally yes as Sewel Convention not legally enforceable

Question 34

What is the role of the SC for devolved jurisdictions?

Answer 34

Has jurisdiction to resolve questions of whether legislation by devolved administrations goes beyond scope of their legislative competence

Will decide whether it falls within reserved matters

Will look at one of the Schedules to relevant Act to find out (relevant act will cover matter of concern e.g. roads, housing)

Question 35

What happens if devolved legislation falls within reserved matters?

Answer 35

It is not law. Only UK PARL legislation has legal effect

Question 36

What happens if the matter of UK PARL legislation is not deemed a reserved matter?

I.e. it is something that devolved administration can legislate on…

(When Wesminster wishes to legislate on matter which touches on areas within legislative competence of devolved PARL or ASS)

Answer 36

Legislation passed by UK still has legal effect but convention says consent of devolved administration should be sought and indicated by way of Legislative Consent Motion

Question 37

If a court applies existing principles of law to the facts, are they creating/making new law?

Answer 37

No

Question 38

In the absence of legislation or clear authority to the contrary, what should the common law do?

Answer 38

Keep at pace with the times

Gillick

Question 39

When can/should statutory provisions be interpreted by the courts in a way which reflects current social attitudes?

Answer 39

If a common law rule no longer represents what is socially accepted and there is no authority to the contrary