Separation of Powers Flashcards
what are the general perceptions of separation of powers
-Three branches, that are
distinct from one another in the powers they exercise, is central to the doctrine
* But, most countries do not fully adhere to a “pure” separation of powers
* Main goal: to prevent
tyranny or abuses of power by any one person (or one branch)
what are the three meanings of separations
-The same persons should not form part of more than one of the three branches
-That one branch of the state should not directly control the work of another
-That one branch should not exercise the functions of another
what are the 2 versions of separation of powers
-pure/absolute (abuse of power is a distinct possibility)
-partial (more popular)
what is the structure of American Federal Power
-legislative (Congress, can override presidential veto)
-executive (president, not held responsible to congress like PM and Parliament)
-Judiciary (Supreme Court, no mandatory retirement age)
why does it matter?
-Lord Acton (1887): “Power tends to corrupt and absolute power corrupts absolutely”
* James Madison said that
one person (or branch)
holding all powers is “the
very definition of tyranny”
* Separation of powers and democracy mutually
reinforcing?
what does Walter Bagehot write in the 1860s
- “[t]he
efficient secret of the English Constitution may be described as the close union, the nearly complete fusion, of the executive and legislative powers”
what does Lord Hailsham write in the 1970s
-called the system an “elective dictatorship”, taking aim at parliamentary supremacy and the power of
government
what % of people say Britain needs a strong leader thats willing to break the rules (2019 Survey)
-54%
what % of people believe that big questions should be put to the public more frequently in referendums (2019 Survey)
-55%
what % of people say that the system of gov needs ‘quite a lot’ or ‘a great deal’ of improvement (2019 Survey)
-72%
describe the legislative function of gov
-Possess law-making authority
-But not all new laws created by Westminster
describe the executive function of gov
-broad authority to govern
-historic break from monarchy to ministers and public authorities
describe the judicial function of gov
-resolve disputes in private and public law
-exercised in civil and criminal courts, and in tribunals
what is a key case for courts and separation of powers
R. v Home Secretary, ex p. Fire Brigades Union
[1995] 2 AC 513
what happened in R. v Home Secretary, ex p. Fire Brigades Union
[1995] 2 AC 513
-injury compensation had to be brought forward by Secretary of State in certain amount of time, SoS did not do that
what is the key statute for courts and separation of powera
-Constitutional
Reform Act 2005
what is the Constitutional
Reform Act 2005
-No green paper, no white paper
-Started off as a press release
-Does this say something about who drives constitutional change within the UK?
-Although it may be the executive, Parliament must approve it
what are the main changes from the Constitutional
Reform Act 2005
-Put the rule of law and judicial independence
on statutory footing
* Significant move towards a more defined
separation of powers in the UK
* Led to:
-Alterations to the Lord Chancellor’s position
-New Judicial Appointments Commission
-Elimination of Law Lords –> new Supreme Court
how did the Office of Lord Chancellor change
-spanned all 3 major powers of gov
-Major Changes:
1. Lord Chancellor /Secretary of State
for Justice is the Cabinet minister at the head of the Ministry of Justice
2. formal (statutory) recognition to defend judicial independence
3. no longer Speaker of the Lords, only affiliation with HoCommons
4. Lord Chancellor no longer able to sit as a judge on the Supreme Court
or Privy Council
how has appointment/ dismissal of judges changed
-previous method very secretive
-Establishment of the Judicial Appointments Commission (JAC)
* JAC makes a decision on candidates, which are then passed to the Lord
Chancellor
-Lord Chancellor can accept, reject or ask for
reconsideration of a candidate, but cannot name new one
-If candidate is rejected the Lord Chancellor is
obliged to accept the next recommendation
-2005 act also sets up how discipline
should operate
how has the UKSC changed
-Came into function in 2009
-Now has their own building, outside the HOL, and new
website
-Not a traditional constitutional court (still no general power of
constitutional review)
-Has taken over “devolution issues”
-Any downsides to the
“enhanced” separation of
powers?
are there any risks to pure/absolute separation of powers?
-Divided government?
-Diminished legislative activity?
-Constitutional power struggles?
-Does the state need a single ‘highest’ authority?
what was said in R. v Home Secretary, ex p. Fire Brigades Union
[1995] 2 AC 513
-“It is a feature of the peculiarly British conception of the separation of powers that Parliament, the executive and the courts have each their distinct and largely executive domain”
-(1) “Parliament has a legally unchallengeable right to make whatever law it thinks right”
-(2) “The executive carries on the administration of the country in accordance with the powers conferred on it by law”
-(3) “The courts interpret the laws, and see that they are obeyed”
