separation of powers Flashcards
what is the separation of powers?
what is the UK constitution?
unmodified
what role does the executive do in making laws?
government proposes primary legislation to be considered by parliament and drafts secondary legislation
propose laws
what role does the legislature do in making laws?
parliament decides whether executive proposals become law. individual MPs can also propose primary legislation (via private members bill)
scrutinise and approve (or reject) proposed laws
what role does the judiciary do in making laws?
interprets parliament’s intentions in making legislation and develops the common law (legal principles not found in legislation)
interpret laws
what is a fusion of powers (the executive)?
the idea that in the UK the legislature select and contains the political part of the executive brach which is dependent on the legislature for its position and power.
what does it mean for a system of ‘checks and balances’?
relationship between the executive and the legislature
can the legislative create legislation?
yes they can create secondary legislation in the form of rules, orders and regulations.
what are the 3 levels of delegation which determine the level of scrutiny given to delegated legislation? (parliamentary control over subordinate legislation)
- no scrutiny
- negative instruments
- affirmative instruments
what functions can the executive have?
they can have a legislative function and a judicial function
what legislative functions does the executive have?
they can create secondary legislation in the form of rules, orders and regulations
where is the judicial function power of the executive come from? (where is it derived from)
power is derived from statutory and prerogative powers
who in the executive provides the judicial functions?
mostly the home secretary
what does the attorney general do?
sits in cabinet as the chief legal adviser to the government.
has role in deciding whether to bring a prosecution in individual cases.
who is the lord chancellor? what do they do>
the government minister with responsibility for the administration of justice, including the administration of the court system
where does the authority for secondary legislation to be made come from?
comes from primary acts of parliament
what is the impact of the constitutional reform act 2005 on the lord chancellor?
removes some of the overlaps in the executive and judicial roles of the lord chancellor
what did the constitutional reform act 2005 do to the Supreme Court?
created the Supreme Court and established it as an institution that is separate physically and in terms of its membership from parliament
who has the head role in the judicial in England and Wales now? lord chancellor or lord Chief Justice?
lord Chief Justice
what did the constitutional reform act 2005 do to judicial appointment?
judicial appointments are now solely based on merit and good character
what is security of tenure?
the idea that judges are paid more to protect judges from politically motivated dismissal by the executive
when do judges hold office? / how can they be dismissed?
judges hold office during ‘good behaviour’ and may only be dismissed by the monarch following an address presented by both Houses of Parliament
what judges do security of tenure apply to?
crown court, high court, court of appeal and Supreme Court
what is the statutory retirement age for judges?
70
what are the two purposes of judicial review?
to prevent abuse of power by the executive
to uphold individual rights
what does judicial review do?
examines the legality of a decision NOT the merits
what is the legal mechanism for challenging delegated legislation?
judicial review
what 2 ways is judicial independence protected?
independent recruitment
pay
rules on political involvement
what is devolution?
the parliament of the UK (is the principal legislative authority in the UK) and grants legislative powers to the devolved legislatures and executives: Scotland, Wales and NI
what is devolved legislation?
the legislation produced by the 3 devolved parliaments or assemblies of Scotland, Wales and NI.
what characteristics does the devolved legislation have?
characteristics of primary legislation produced by Westminster parliament, but cannot be created without enabling powers of an act of the UK parliament
what are devolved matters?
areas of government where decision-making has bene delegated by the UK parliament to a devolved administration.
eg, Scotland can make its own laws on certain areas like education
are devolved laws subject to review?
yes subject to review by the Supreme Court
what are reserved matters?
decisions still taken by parliament at Westminster, even though they can have an effect in Scotland, Wales and NI. eg, immigration
what is the general rule for devolution in scotland?
that acts of the UK parliament extend to Scotland only if they deal with non-devolved or reserved matters (such as immigration)
Can UK parliament legislate on devolved matters?
yes, but it should first obtain approval of the devolved parliament and assembly first
who is responsible for determining questions of law relating to devolution?
the Supreme Court
what does the sewer convention say?
if Westminster parliament wishes to legislate on a matter which touches on areas within the legislative competence of a devolved parliament, it SHOULD firstly obtain prior approval of the relevant legislature.
what happens if a devolved legislature passes a statute which later is deemed to fall within the relevant list of ‘reserved powers’?
court will determine that this statute doesnt have legal effect
