Separation of Powers Flashcards
Does the UK judiciary have the power to ‘quash; Parliament Bills which they deem to be unconstituional?
No -> Supreme Court is not a constitutional court
What are some examples of the overlapping roles between executive and legislative?
Senior government ministers are, by convention, also Members of Parliament. Thus these senior government ministers are part of both the Executive and Legislative bodies of the State.
Parliament (Legislative body) gives power to the Executive through primary legislation.
The Government (Executive body) has the power to create secondary legislation (Legislative function) as long as it has the authority to do so from primary legislation (in the shape of a ‘parent’ Act of Parliament).
What are Henry VII clauses?
Clauses allowing the executive to amend or repeal provisions in an Act of Parliament using secondary legislation.
Note:
- controversial power as they have the effect of enhancing executive power over the making of laws with very little parliamentary scrutiny.
- named after King Henry VIII who, by the Statute of Proclamations 1539, gave himself power to make law by royal proclamation.
How does the EU Withdrawal Act give ministers so-called ‘Henry VIII’ powers?
WA provides that laws and regulation made over more than 45 years, while the UK was a member of the EU, will continue to apply now that the UK has left the European Union.
This ‘retained EU law’ will require further amendment because many of the laws mention EU institutions in which the UK will no longer participate, or mention EU law itself, which will no longer be part of the UK legal system. They may also contain law that a future government wants to repeal for political reasons.
thus:
ministers have the power to make changes to both primary and secondary legislation using statutory instruments.
What are the three ‘levels of delegation’ which determine the level of scrutiny given to delegated legislation.
1) No scrutiny
Some delegated powers receive no parliamentary scrutiny. For example, an order to close a major road while it is being developed.
2) Negative Instruments
These instruments can become law without a debate or vote in Parliament. They can be opposed and, in theory, rejected but not amended by Parliament.
3) Affirmative instruments
cannot come into effect until both Houses have approved a draft Statutory Instrument in a vote.
Provide 3 steps to secondary legisaltion law making process.
1) Parliament passes an Act giving the Secretary of State (‘SoS’) power to make regulations. -> “parent acts”
2) The SoS makes regulations through a SI, which must be ‘intra vires’ the Act.
3) Ultimately the Administrative Court decides if the regulation is ‘intra vires’.
What piece of legisaltion reformed the most senior court in the UK from the House of Lords to UKSC?
(enhanced separation of powers by making the mos senior court separate to Parliament)
Constitutional Reform Act 2005
What is the role of the Attorney General and how does it give rise to concerns regarding the doctrine of SoP?
Role:
- sits in Cabinet (Executive body)
- chief legal adviser to the government (Judiciary Function).
- role (as an executive member) to bring a prosecution in individual cases (judicial function).
-> Overlap between judicial and executive function
- Conflict of interest could arise between the inherent political allegiance of any holder of the office and the wider constitutional obligation to give independent, impartial legal advice to the government.
This means that the judicial advice the Attorney General gives to the government, could be influenced by his own political views.
A good example of this was the controversy surrounding the legal advice given to the Blair government by the then Attorney General, Lord Goldsmith, in the lead-up to the war in Iraq in 2003, which is covered by section 5 of the Chilcot ‘Report of the Iraq Inquiry’.
What is the principle of legality?
established in the case of R v SoS for the Home Department.
- Where Parliament legislates the piece of legislation must be interpreted to protect fundamental rights;
-The principle is that you can’t assume parliament intended to take away fundamental rights. Reviewing secondary legislation. - A Declaration of incompatibility can be issued you the court if the court considers a piece of primary legislation violates the principles and rights protected under the Human Rights Act.
Does a declaration of incompatibility require the government to change the law?
no -> sovereignty of parliament means that it remains to their discretion
When can a declaration of incompatibility be issued?
Where the court considers a piece of primary legislation violates the principles and rights protected under the HRA/ incompatible with EU law.
How have judicial appointments changed since the introduction of the CRA 2005?
Pre-CRA 2005:
- judges appointed by Lord Chancellor (member of executive and legislature; formerly knows as one of the Law Lords)
Post-CRA 2005:
- independent Judicial Appointments Commission,
- composed of 15 commissioners with professional, lay and judicial members
- based solely on merit and good character
What is judicial security of tenure?
Protects judges from politically motivated dismissal by monarchy/ executive.
The principle has since been re-enacted in :
- section 11 of the Senior Courts Act 1981 for judges in the Crown Court, High Court and Court of Appeal, and
- s. 33 of the Constitutional Reform Act 2005 for justices of the Supreme Court.
Both these Acts state that judges hold office ‘during good behaviour’ and may only be dismissed by the monarch following an address presented by both Houses of Parliament.
Are judges allowed to sit in the commons?
no -> principle of political independence of judges
What is judiciary privilege?
Judges are immune from legal proceedings for actions that would otherwise be tortious (e.g. defamation) so long as the act is done in a judicial capacity in a court of justice.
Note: magistrates enjoy less immunity that judicial office holders, esp if it is proved that they acted in bad faith.
