Separation of Powers

Question 1

What is the fundamental idea of the separation of powers?

Answer 1

That to avoid an over concentration of power, the three branches of state (the judiciary, executive and legislature) should be separated into different bodies or persons.

Question 2

How is the separation of powers reflected in the making of laws?

Answer 2

• the executive - proposes primary legislation to be considered by parliament and drafts secondary legislation
• the legislature - parliament decides whether executive proposals become law. Individual MPs can also propose primary legislation (via Private Members’ Bills)
• interprets - parliament’s intentions in making legislation and develops the common law (legal principles not found in legislation)

Question 3

What is the issue with judges and separation of powers relating to the making of law?

Answer 3

The judges in senior courts are often required to make decisions in the absence of any explicit statutory or common law authority

A feature of common law is that it develops with changing political and cultural climate that demands that judges sometimes have to make the law

Question 4

When can the executive make legislation?

Answer 4

They can make secondary legislation when parliament confers them the power through primary legislation.

Subordinate legislation should then be scrutinised by parliament

Question 5

What are negative instruments (subordinate legislation)?

Answer 5

They become law without a debate or vote in parliament.

They can be opposed and in theory rejected by parliament but not amended

Question 6

How are affirmative instruments passed?

Answer 6

The need approval from both Houses in a vote

Question 7

What is meant that subordinate power must be exercised intra vires?

Answer 7

They must be exercised within the power granted otherwise illegal

Question 8

What judicial functions do the executive have?

Answer 8

The Home Secretary until recently had power to set the tariff sentence for those convicted at His Majesty’s pleasure.

Power much reduced through statutory amendments

Question 9

Why is the role of Attorney General problematic from a separation of powers point of view?

Answer 9

Sits in cabinet as chief legal adviser to the government (ie member of the executive)

Has a role in deciding whether to bring a prosecution in individual cases

Question 10

Why is the role of Lord Chancellor problematic from a separation of powers point of view?

Answer 10

Government minister with responsibility for administration of the court system.

Far less problematic than it was as no longer got a judicial function as well. Used to be head of judiciary.

Question 12

When did the judiciary gain their independence from the executive?

Answer 12

In 1701 with the Act of Settlement

Question 12

How are appointment of judges done?

Answer 12

By the independent judicial appointments commission. Prior to this it was the job of the Lord Chancellor.

Question 13

What is the basis of the appointments of judges?

Answer 13

Solely on the basis of merit and good character

Question 14

Do judges enjoy security of tenure?

Answer 14

Crown court, High court, Court of Appeal, and UKSC judges enjoy security of tenure ‘during good behaviour’

Other judicial positions are protected by convention rather than law.

Question 15

How can a senior judge lose their security of tenure?

Answer 15

Only the monarch can dismiss them following an address from both Houses of Parliament

Question 16

What is the statutory retirement age for judges?

Answer 16

70

Question 17

Who pays the salary of judges and how is it determined?

Answer 17

The Ministry of Justice pays the salary of judges.

Pay is determined by an independent pay review body

Question 18

How is the political independence of judges secured?

Answer 18

• full-time judges are disqualified from sitting in the House of Commons under the House of Commons disqualification Act 1975
• members of cabinet and MPs should not criticise the character or motivation of judges although this is not always respected
• court also lack jurisdiction to inquire into proceedings in Parliament. Important principle of parliamentary privilege enshrined in Article 9 f the Bill of Rights 1689

Question 19

What immunity from civil actions do members of the judiciary have?

Answer 19

• judges are immune from legal proceedings for actions that would otherwise be tortious whilst in a judicial capacity in a court of justice
• magistrates have less immunity as they may be liable for acts outside their jurisdiction if it is proved they acted in bad faith

Question 20

What role does judicial review have in relation to the separation of powers?

Answer 20

Key check on the power of the executive.

Helps to prevent abuse of power by the executive and uphold individual rights.

Question 21

What oversight of legislation do judges have?

Answer 21

Judges have no power to scrutinise proceedings in Parliament nor to review primary legislation unless:

• acts inconsistent with EU law or is with retained EU law
• Acts incompatible with ECHR, and they make a declaration to that effect pursuant to HRA 1998

Secondary legislation can be challenged by judicial review.

Question 23

Can court orders be enforced against the executive?

Answer 23

Yes - injunctions can be granted against executive officers even if acting in their official capacity.

Judges will also seek to uphold the will of parliament