Separation of Powers Flashcards
What is Separation of Powers?
It is a theory that the branches of state should be separated into different bodies so that power is balanced to protect liberty.
Executive, Legislature and Judiciary.
How are laws made?
Executive: proposes primary legislation to be considered by Parliament and drafts secondary legislation.
Legislature: Parliament decides whether executive proposals become law - individual MPs can also propose primary legislation.
Judiciary: Interprets Parliament’s intentions in making legislation and develops the common law
Judicial activism vs deference
Whilst it could well be said that today’s judiciary is generally more activist than its predecessors thirty or more years ago, this is not an accurate generalisation. Courts will largely tailor their approach depending on the nature and subject matter of the issue before them. And it should be borne in mind that “activism” isn’t a measurable or objective constant in any case; it tends to be used as a term of criticism.
- A common feature of the commons law is that it develops with the changing political and cultural climate - “can and should keep pace with the times”
- Judges are often required to make decisions in the absence of an explicit statutory or common law authority
RvR: existence of marital rape in absence of legislation by Parliament
Yet, sometimes refuse to develop on “wholly new moral and social issues”
Can Parliament change its mind?
Yes.
It can even pass an act to override a Courts’ legal principal
After House of Lords found that compensation should be paid to Burmah Oil for destruction of oil fields in WWII, Parliament passed the War Damage Act 1965 which exempted the Crown from paying compensation for property damage or destruction in war.
Overlapping roles between Parliament and the Executive
- Senior government ministers are by convention also Members of Parliament
- Parliament through the enactment of primary legislation, confers power on the government
Executive carries out legislative functions:
- proposing primary legislation
- creating secondary legislation (SIs)
How does Parliament scrutinise secondary legislation?
Three levels:
1) No scrutiny - some delegated powers receive no scrutiny e.g. an order to close a road while it is being developed
2) Negative 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 - the most important delegations of power are subject to affirmative resolution. They cannot come into effect until both Houses have approved a draft SI in a vote.
Attorney General
Chief legal advisor to the government and sits in cabinet - creates possibility for conflict (constitution vs party)
Perceived as political. This is a commonly held conviction, caused by the AG’s joint role as both the government’s main legal adviser and as a member of the central executive. In the last two decades, the suspicion that Attorney Generals can be pressured politically into supporting a central government line has been directed particularly at Lord Goldsmith (in relation to the legality of the war in Iraq in 2003) and to Geoffrey Cox (in relation to Brexit, in 2019.)
When did the judiciary become independent?
Effectively 1701 - Act of Settlement: confirmed that judges could not be removed from their posts by the government during goof behaviour.
Constitutional Reform Act 2005 - put this on statutory footing
How are judicial appointments made?
Prior to the Constitutional Reform Act 2005 - made on recommendation by Lord Chancellor
Now: independent Judicial Appointment Commission who recommends candidates to the Lord Chancellor
Lord Chancellor recommends a name to the Prime Minister who advises the King to make the appointment.
What is meant by judges having security of tenure?
Judges hold office during good behaviour and may only be dismissed by the monarch following an address presented by both Houses of Parliament.
How are judges salaries determined?
Judges paid a salary by the ministry of justice and the amount is determined by an independent pay review.
How are judges politically independent?
- Full time judges are disqualified from sitting in the House of Commons
- Members of Cabinet and MPs should not criticise the character or motivation of judges
- Courts lack jurisdiction to inquire into proceedings in Parliament (Parliamentary privilege)
Can civil proceedings be brought against judges for tortious actions in judicial capacity?
No. Judges are immune as long as the action is done in a judicial capacity in a court of justice. e.g. would not be immune when commenting to the media.
This is even if mistaken in fact or ignorant in law.
Will the judiciary intervene on matters of policy?
Courts don’t like impinging upon substance of policy decisions but they may legitimately intervene if the decision is devoid of reason and not properly justified.
Generally they will not trespass into matter of government policy - particularly national security.
Justiciability: areas of government decision-making which are reviewable by the courts have expanded in recent years. Will adjudicate on the exercise of public power, its scope and its substance.
Even when discretionary powers are engaged, they are not immune from judicial review.
BUT courts are limited by
- their constitutional role; and
- by their institutional capacity
Can court injunctions/orders be granted against executive officers even if acting in their official capacity?
Yes they are required, will be in contempt of court otherwise.
Example: asylum appeal - injunction to stop deportation.
