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 ## Footnote 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 ## Footnote 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 ## Footnote 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 ## Footnote 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... ## Footnote (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

Question 40

What are the 3 branches?

Answer 40

1. Executive (government) = Monarch, PM, Cabinet and other junior / government ministers (armed forces, civil service, police) 2. Judiciary (courts) = Monarch, all judges, and magistrates 3. Legislature (parliament) = Monarch, HOL, HOC

Question 41

Is UK's SOP formal or informal?

Answer 41

Informal – has overlap between branches with an informal system of checks and balances

Question 42

2 important statutory limitations between members in executive and legislature

Answer 42

1. **Statutory limitations on executive members also being legislature members** under the House of Commons Disqualifications Act 1975: s.1: CIVIL SERVICE, ARMED FORCES, POLICE **cannot be MPs** s.2: Maximum number of government ministers in HOC = 95 However, there is significant overlap –

Question 43

Parliamentary scrutiny on executive

Answer 43

1. Questions – PM answers questions on Wednesday for 30 mins 2. Debates –HOC can order emergency debates 3. Select committes – can be appointed to examine expenditure and administration of policy 4. Ombudsmen – Appointed by Crown and investigate complaints of injuctice as a result of maladministration --> but decisions are not binding on government ministers

Question 44

Principle of Judicial Independence

Answer 44

Government has a duty to uphold independence of judiciary and individual ministers should not seek to influence particular decisions through special access to judiciary

Question 45

Judicial independence from executive

Answer 45

1. Judicial appointments – now dealt with by Judicial Appointments Committee (impartial and unconnected to executive) 2. Tenure – security conferred under the Senior Courts Act and for justices of UKSC under the Constitutional Reform Act 2005. 3. Senior judges hold office 'during good behaviour' and may be dismissed by Monarch only following a vote of both HOL AND HOC 4. Salary – determined by an independent body and is insulated from executive/parliamentary control 5. Immunity from civil action on their judicial decisions 6. Members of evecutive do not criticise judicial activity 7. Sub-judice rule – parliament refrains from discussing matters being heard at court 8. Contempt of Court laws

Question 46

Overlap between executive and legislature (dont need to know just see content)

Answer 46

2. Subordinate/delegated legislature passed by MPs over which parliament has little scrutiny 2. Henry VIII powers = allows government to amend/repeal primary legislation by way of delegated legislation without reference back to parliament 3. Government can convince backbench MPs to support them to prevent a vote of no confidence in HOC

Question 47

Who holds the role of Lord Chancellor now?

Answer 47

1. Power as head of judiciary transfered to Lord Chief Justice

Question 48

Role of Lord Chief Justice

Answer 48

1. Training, guiding and deploying judges 2. Representing the views of judiciary to parliament 3. Make written representations to parliament on important matters

Question 49

Which body is in charge of judicial appointments?

Answer 49

Under the Judicial Appointments Commission (JAC) – 1. Ensures that appointment is not influenced by political considerations

Question 50

What is the system for appointing judges?

Answer 50

1. PM must advice Monarch on filling vacancies for Lord Chief Justice, Master of the Rolls and High Court judges and KBD 2. Lord Chancellor must ask JAC to convene by a selection panel and only then make a recommendation to LCJ 3. Appointments for UKSC are made by Monarch on advise of PM after a selection committee makes recommendations

Question 51

Are there other criteria besides merit that must be considered on making a selection of judges?

Answer 51

No

Question 52

Can quasi-judicial decisions made by the executive be subject to JR? ## Footnote Example of quasi-judicial decision = CPOs (compulsory purchase orders) to buy land which is made by relevant government minister

Answer 52

Yes – if unlawful, irrational or in breach of procedural requirements, courts can quash them

Question 53

How does the judiciary hold the executive to account?

Answer 53

Through JR

Question 54

Where does the executive derive its power from?

Answer 54

Statute (created by Parliament) and the royal prerogative

Question 55

What does JR review?

Answer 55

Only the the legality of a decision or action, **not its merit**

Question 56

What 2 things can the judiciary scrutinise re royal prerogative?

Answer 56

Courts can scrutinise: 1. the **extent** of royal prerogative and 2. How it is **exercised**

Question 57

What is the royal prerogative?

Answer 57

What remains of the absolute powers that, at one time, were exercised by the Monarch, which have not been removed by Parliament. Such powers are now exercised by Government on Monarch's behalf

Question 58

Can you extend or create prerogative powers?

Answer 58

No – New prerogative powers **cannot be created** and scope of existing ones **cannot be extended** ## Footnote Case or Proclamations (1611) – King could make royal proclamations that had the force of statute in times of emergency, but used them in non-emergency situations too. Held to be unlawful – King couldn't create prerogative powers for himself

Question 59

What is Miller No 2 / Cherry and how does it relate to prerogative powers?

Answer 59

R v Miller (No 2) concerned the legality of PMs ådvice to Queen to prorogue Parliament for 5 weeks (during UK's withdrawal from EU!) Held to be unlawful as it frustrated Parliament's ability to carry on constitutional functions. UKSC classified it as a case on the extent of power rather than manner of exercise. Courts are willing to take a **wide approach in analysing extent of powers**

Question 60

Cases concerning the review of exercise of RP

Answer 60

Blackburn v AG [1971]: B sought declaration that government by signing Treaty of Rome was surrendering its parliamentary sovereignty. **Court held it could determine whether power existed, but no right to receive the exercise of that power** CCSU V Minister of Civil Service: CCSU asked courts to recivew decision of Minister to prohibit staff at GSHQ from being members of a trade union. Held: On these facts, Minister's decision was prompted by concerns of national security – Government was in a better position to judge natuional security interests than Courts

Question 61

Is power to review the extent and exercise of RP the same?

Answer 61

No – reviews of the exercise of prerogative powers is far more limited

Question 62

What specific RPs are **non-justiciable** (ie: not capable of being reviewed by courts?) ## Footnote 6 things

Answer 62

1. Making international treaties 2. Control of armed forces 3. Defence of the realm 4. Dissolution of paliament (following repeal of FTPA as it is once again a RP) 5. Granting public honors

Question 63

Can you review the prerogative of mercy?

Answer 63

Yes

Question 64

In other words, what RP decisions are incapable of being reviewed?

Answer 64

Areas of 'high policics' – concern national security/defence etc

Question 65

Who then holds the executory accountable for their exercise of non-justiciable RPs?

Answer 65

The electorate at general election

Question 66

Relationship between legislature and judiciary

Answer 66

1. Holders of judiciary are disqualified from membership of HOC 2. Parliament will not criticize a judge 3. Sub-judice rule – Parliament will refrain from discussing details being heard in court 4. Bill of rights – Comments made by Parliament are subject to parliamentary priviledge --> immunity from criminal/civil proceedings arising from any statements made

Question 67

Can you bring a criminal or civil claim against statements made at Parliament?

Answer 67

No. They have Parliamentary Priviledge

Question 68

How did the Constitutional Reform Act remove (some of) the overlap between legislature and judiciary?

Answer 68

1. Act created UKSC with 12 Justices (replacing 'law lords' who were part of Paliament and could vote/debate matters) 2. Lord Speaker is now elected by members of HOL (cf when this power was held by Lord Chancellor)

Question 69

What is judicial restraint?

Answer 69

Judges should be reluctant to develop common law in areas Parliament should consider, or where Parliament has already decided not the legislate

Question 70

If courts declare an Act of Parliament as incompatible with ECHR, is statute invalidated?

Answer 70

No, but it does put pressure on government to amend the offending piece of legislation ## Footnote UKSC has also made obiter comments that it may strike down legislation that infringe rule of law, but it has never happened (yet)

Question 71

Judicial powers re primary legislation

Answer 71

Courts can't prevent parliament from enacting legislation, but: 1. Can declare an Act as incompatible with ECHR; and 2. Suspend legislation that conflicts with retained EU law

Question 72

Summary

Answer 72

Question 73

Does the government need parliamentary approval before taking military action

Answer 73

Yes, by convention – however, **not if an emergency exists!**

Question 74

Do courts have the power to enforce conventions?

Answer 74

No - they are non-legal rules.

Question 75

If a minister speaks out against the PM, can the PM dismiss her without application to the High Court?

Answer 75

Yes. It is by convention that a minister should not speak out publically against a government. There is therefore no need to apply to Court, as courts cannot uphold conventions.

Question 76

Is the prohibition of judges speaking about policitical matters a statutory rule or convention?

Answer 76

Convention

Question 77

# ** True or False? The rule of law is a process of enforcing prospective, uniform and clearly pre-agreed rules, regardless of the content of the laws.

Answer 77

True