Separation of powers

Question 1

Define the principle of separation of powers.

Answer 1

A principle that states that the main institutions of government should be separate and independent to prevent tyranny and protect citizens’ liberties. The separation of powers is intended to create a system of checks and balances to ensure that no one branch of government has too much power.

Question 2

What is the judiciary’s attitude to the separation of powers?

Answer 2

Case law addressing the separation of powers shows that the Courts will not encroach on what they see as areas of government policy but they will protect judicial authority from interference by the executive.

Question 3

How does membership of the Executive and Parliament overlap?

Answer 3

Cabinet ministers are elected MPs who sit in Parliament therefore a partial fusion is created.

Question 4

What is a statutory instrument?

Answer 4

A type of legislation that allows the UK government to change or enforce the provisions of an Act of Parliament without passing a new Act.

Question 5

What are the three main methods for delegating statutory instruments?

Answer 5

1. No scrutiny-for example, an order to close a major road while it is being developed.
2. Negative instruments-can become law without a debate or vote in Parliament, can be opposed and in theory rejected but not amended by Parliament.
3. Affirmative instruments-most important delegations of power are subject to this method. They cannot come into effect until both Houses have approved a draft SI in a vote.

Question 6

Define the role of the Attorney General.

Answer 6

Sits in Cabinet as chief legal adviser to the Government.

Has a role in deciding whether to bring a prosecution in certain cases.

Nature of the office gives rise to concerns on the doctrine of the separation of powers as there is clearly potential for political influence on governmental legal advice.

Question 7

Define the role of the Lord Chancellor.

Answer 7

Government minister responsible for the administration of justice and the Court system.

CRA 2005 reorganised the role to remove overlaps with the role’s legislative and judicial functions.

Question 8

How are judges paid and what is the retirement age?

Answer 8

Judges are paid a salary by the Ministry of Justice which is determined by an independent pay review body.

Statutory retirement age is 70.

Question 9

How is the political independence of judges protected?

Answer 9

-Full-time judges are disqualified from sitting in the Commons under the House of Commons Disqualification Act 1975.

-Parliamentary rules provide Cabinet members and MPs should not criticize character or motivation of judges.

-Courts also lack jurisdiction to inquire into proceedings in Parliament, as this is protected by parliamentary privilege enshrined in Article 9 of Bill of Rights 1689.

Question 10

Are judges immune from legal proceedings in a judicial capacity?

Answer 10

Judges are immune from legal proceedings for actions that would otherwise be tortious (eg defamation) as long as the action is done in a judicial capacity in a Court of justice. For example, a judge would not be immune when commenting to media.

Question 11

In what two instances do judges have the power to review primary legislation?

Answer 11

-where the Act was inconsistent with EU law or retained EU law

-if the Act is incompatible with the EU convention on Human Rights, Courts may make a declaration to that effect pursuant to HRA 1998

Question 12

Will the judiciary trespass into matters of government policy, particularly national security?

Answer 12

No, issues of national security outweigh those of fairness and this is a matter for the executive to weigh and decide as seen in Council of Civil Service Unions v Minister for Civil Service (1985).

Question 13

Describe the contrasting cases of M v Home Officer (1994) and R v SoS for Home Department ex parte Fire Brigade Union (1995) in relation to the enforcement of courts orders against the executive.

Answer 13

M v Home Office (1994): SoS was held to be in contempt of court for failing to follow a court order stopping the removal of a Zairian national seeking political asylum.

R v SoS for Home Department Ex p. Fire Brigade Union (1995): Court found the SoS had acted unlawfully as his new scheme for criminal injuries compensation was inconsistent with the statutory scheme approved by Parliament and had not been repealed.

Question 14

What does devolution mean in the context of the UK and what is it designed to do?

Answer 14

Devolution refers to the grant, by Parliament of the UK, of legislative powers to the devolved legislatures and administration.

It is designed to decentralise government power and bring it closer to the people governed.

Question 15

What are the devolved legislatures and administrations?

Answer 15

Scottish Parliament and Scottish Government

National Assembly for Wales and Welsh Government

Northern Ireland Assembly and Northern Ireland Executive

Question 16

What are devolved matters and provide an example?

Answer 16

Devolved matters are the areas of government where decision-making has been delegated by UK Parliament to a devolved administration.

For example, education in Scotland is a devolved matter meaning Scotland can make its own law on those areas. All devolved laws are still subject to review by the Supreme Court.

Question 17

What are reserved matters and provide an example?

Answer 17

Reserved matters are decisions taken by Westminster Parliament even though they have effect in Scotland, Wales and Northern Ireland eg immigration, defence, foreign policy.

Question 18

If legislation passed by the UK Parliament is on a reserved matter, will it have effect in the devolved administration?

Answer 18

The legislation will have legal effect in the devolved administration. Conversely, any legislation passed by the devolved administration will not have legal effect.

Question 19

If legislation passed by the UK Parliament is on a devolved matter, will it have effect in the devolved administration?

Answer 19

The legislation will still have effect in the devolved administration but the Sewel Convention provides that the consent of the devolved administration should be sought and indicated by way of a Legislative Consent Motion.