Separation of powers Flashcards
Are there overlaps in the separation of powers in the UK?
- Yes - cabinet minister (EXEC) is also MP (PARL)
- All three state organs have a role in making laws (propose, vote on, and interpret legisation)
What is judicial activism and judicial deference?
- Activism = courts will go beyond appicable law
- Deference = courts will not encorach on what they see as GOV policy
Does the judiciary ‘make’ law?
- No they interpret it
- Decisions can be countered with new legislation from PARL
But may make decisions in absence of explicit authority
Does the executive ‘make’ law?
They can only propose new legislation but they can draft secondary legislation
What general policy does the executive formulate on?
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
What does the ‘fusion of powers’ mean?
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
How does PARL ‘confer power’ on GOV?
Through enactment of primary legislation
Allowing secondary legislation
What is a statutory instrument and what does it contain?
The legislative functions of the EXEC
- 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
What are the 3 ‘levels of delegation’?
Level of scrutiny given to delegated legislation
- No scrutiny
- Negative instruments - can become law without debate/vote but can be opposed
- Affirmative instruments - cannot come into effect without both Houses’ approval
What does it mean that delegated/subordinate power must be exercised ‘intra vires’?
Must be exercised within power granted
Will usually be granted by primary legislation
Do the EXEC have wide judicial functions?
Was Home Secretary’s role - e.g. setting tariff sentence - but has been reduced in recent years
What does the Attorny General do?
Sits in Cabinet as chief legal adviser with role of deciding whether to bring prosecution in individual cases
Does the Lord Chancellor’s role still have overlaps with legislative and judicial functions?
Responsibility for administration of the court system but CRA removed overlaps
What does the Judicial Appointments Commission do?
Make judicial appointments based on solely merit and good character (independently)
What is judicial security of tenure?
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
Can courts inquire into proceedings in PARL?
No - part of parliamentary privilege principle
What does ‘judicial immunity from civil actions’ mean?
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
What is the twofold purpose of judicial review?
- Prevent abuse of power by the EXEC
- Uphold individual rights
Secondary legislation can also be challenged in same way
What part of a GOV decision does judicial review examine?
Its legality
Not merits
What are the exceptions to the rule that judges cannot scrutinise proceedings in PARL or review primary legislation?
- Where Act inconsistent with (retained) EU law
- If Act incompatible with ECHR - can make declaration of incompatibility
Do judges have concern with government (social and economic) policy?
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!
Are the executive subject to enforcement of court orders?
Yes - as with everybody else
Will be in contempt of court otherwise
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
Yes - the legislative measures of the EXEC depend on legal validity on approval by PARL
E.g. will have acted unlawfully = abuse of power
What is devolution?
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
What is devolved legislation and what does it require?
- Is legislation produced by deolved PARLs
- Requires enabling powers of an Act of UK PARL
What are reserved matters?
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)
Who does the responsibility for fiscal policy/public expenditure across whole UK belong to?
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
What does the Memorandum of Understanding set out?
A series of non-legally binding principles which underlie relations between the administrations
What are the terms of reference of the Joint Ministerial Committee?
- 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
Is UK PARL expressly prevented from legislating re devolved matters in Scotland?
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
What is the general rule re Acts of PARL applying to Wales and NI?
Only apply if they deal with reserved matters
But same thing as Scotland re not expressly prevented
What is the effect of the Sewel Convention?
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
Can Westminster legislate on a devolved matter without seeking a consent motion from Scottish PARL as per Sewel Convention?
Legally yes as Sewel Convention not legally enforceable
What is the role of the SC for devolved jurisdictions?
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)
What happens if devolved legislation falls within reserved matters?
It is not law. Only UK PARL legislation has legal effect
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)
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
If a court applies existing principles of law to the facts, are they creating/making new law?
No
In the absence of legislation or clear authority to the contrary, what should the common law do?
Keep at pace with the times
Gillick
When can/should statutory provisions be interpreted by the courts in a way which reflects current social attitudes?
If a common law rule no longer represents what is socially accepted and there is no authority to the contrary
What are the 3 branches?
- Executive (government) = Monarch, PM, Cabinet and other junior / government ministers (armed forces, civil service, police)
- Judiciary (courts) = Monarch, all judges, and magistrates
- Legislature (parliament) = Monarch, HOL, HOC
Is UK’s SOP formal or informal?
Informal – has overlap between branches with an informal system of checks and balances
2 important statutory limitations between members in executive and legislature
- 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 –
Parliamentary scrutiny on executive
- Questions – PM answers questions on Wednesday for 30 mins
- Debates –HOC can order emergency debates
- Select committes –can be appointed to examine expenditure and administration of policy
- Ombudsmen – Appointed by Crown and investigate complaints of injuctice as a result of maladministration –> but decisions are not binding on government ministers
Principle of Judicial Independence
Government has a duty to uphold independence of judiciary and individual ministers should not seek to influence particular decisions through special access to judiciary
Judicial independence from executive
- Judicial appointments – now dealt with by Judicial Appointments Committee (impartial and unconnected to executive)
- Tenure– security conferred under the Senior Courts Act and for justices of UKSC under the Constitutional Reform Act 2005.
- Senior judges hold office ‘during good behaviour’ and may be dismissed by Monarch only following a vote of both HOL AND HOC
- Salary – determined by an independent body and is insulated from executive/parliamentary control
- Immunity from civil action on their judicial decisions
- Members of evecutive do not criticise judicial activity
- Sub-judice rule –parliament refrains from discussing matters being heard at court
- Contempt of Court laws
Overlap between executive and legislature (dont need to know just see content)
- Subordinate/delegated legislature passed by MPs over which parliament has little scrutiny
- Henry VIII powers = allows government to amend/repeal primary legislation by way of delegated legislation without reference back to parliament
- Government can convince backbench MPs to support them to prevent a vote of no confidence in HOC
Who holds the role of Lord Chancellor now?
- Power as head of judiciary transfered to Lord Chief Justice
Role of Lord Chief Justice
- Training, guiding and deploying judges
- Representing the views of judiciary to parliament
- Make written representations to parliament on important matters
Which body is in charge of judicial appointments?
Under the Judicial Appointments Commission (JAC)–
- Ensures that appointment is not influenced by political considerations
What is the system for appointing judges?
- PM must advice Monarch on filling vacancies for Lord Chief Justice, Master of the Rolls and High Court judges and KBD
- Lord Chancellor must ask JAC to convene by a selection panel and only then make a recommendation to LCJ
- Appointments for UKSC are made by Monarch on advise of PM after a selection committee makes recommendations
Are there other criteria besides merit that must be considered on making a selection of judges?
No
Can quasi-judicial decisions made by the executive be subject to JR?
Example of quasi-judicial decision = CPOs (compulsory purchase orders) to buy land which is made by relevant government minister
Yes – if unlawful, irrational or in breach of procedural requirements, courts can quash them
How does the judiciary hold the executive to account?
Through JR
Where does the executive derive its power from?
Statute (created by Parliament) and the royal prerogative
What does JR review?
Only the the legality of a decision or action, not its merit
What 2 things can the judiciary scrutinise re royal prerogative?
Courts can scrutinise:
1. the extent of royal prerogative and
2. How it is exercised
What is the royal prerogative?
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
Can you extend or create prerogative powers?
No – New prerogative powers cannot be created and scope of existing ones cannot be extended
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
What is Miller No 2 / Cherry and how does it relate to prerogative powers?
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
Cases concerning the review of exercise of RP
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
Is power to review the extent and exercise of RP the same?
No – reviews of the exercise of prerogative powers is far more limited
What specific RPs are non-justiciable (ie: not capable of being reviewed by courts?)
6 things
- Making international treaties
- Control of armed forces
- Defence of the realm
- Dissolution of paliament (following repeal of FTPA as it is once again a RP)
- Granting public honors
Can you review the prerogative of mercy?
Yes
In other words, what RP decisions are incapable of being reviewed?
Areas of ‘high policics’ – concern national security/defence etc
Who then holds the executory accountable for their exercise of non-justiciable RPs?
The electorate at general election
Relationship between legislature and judiciary
- Holders of judiciary are disqualified from membership of HOC
- Parliament will not criticize a judge
- Sub-judice rule – Parliament will refrain from discussing details being heard in court
- Bill of rights – Comments made by Parliament are subject to parliamentary priviledge –> immunity from criminal/civil proceedings arising from any statements made
Can you bring a criminal or civil claim against statements made at Parliament?
No. They have Parliamentary Priviledge
How did the Constitutional Reform Act remove (some of) the overlap between legislature and judiciary?
- Act created UKSC with 12 Justices (replacing ‘law lords’ who were part of Paliament and could vote/debate matters)
- Lord Speaker is now elected by members of HOL (cf when this power was held by Lord Chancellor)
What is judicial restraint?
Judges should be reluctant to develop common law in areas Parliament should consider, or where Parliament has already decided not the legislate
If courts declare an Act of Parliament as incompatible with ECHR, is statute invalidated?
No, but it does put pressure on government to amend the offending piece of legislation
UKSC has also made obiter comments that it may strike down legislation that infringe rule of law, but it has never happened (yet)
Judicial powers re primary legislation
Courts can’t prevent parliament from enacting legislation, but:
- Can declare an Act as incompatible with ECHR; and
- Suspend legislation that conflicts with retained EU law
Summary
Does the government need parliamentary approval before taking military action
Yes, by convention – however, not if an emergency exists!
Do courts have the power to enforce conventions?
No - they are non-legal rules.
If a minister speaks out against the PM, can the PM dismiss her without application to the High Court?
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.
Is the prohibition of judges speaking about policitical matters a statutory rule or convention?
Convention
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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.
True
