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Separation of Powers Flashcards

1
Q

LECTURE-what is The Separation of Powers (SoP) ?

A

The Separation of Powers (SoP) is a political doctrine

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2
Q

LECTURE-The three Powers (or Organs or Branches) of State are?

A

the Executive

the Legislature &

the Judiciary

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3
Q

LECTURE-how long has the doctrine been around?

A

The doctrine has been around since Aristotle (384-322 BC) but is also associated with Locke (1632-1704) & Montesquieu (1689-1755)

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4
Q

LECTURE-definition of doctrine?

A

Definition: Montesquieu argued three powers should be:

separate: three distinct branches
unique: no overlap in personnel, and

equal: each wielding equal power
He emphasised the importance of an independent Judiciary

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5
Q

LECTURE-aims of doctrine?

A

Aim of the doctrine: to protect individual liberty against tyranny

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6
Q

LECTURE-UK vs US?

A

The UK has an informal Separation of Powers which is present largely by accident while the US has a formal Separation of Powers which is present by design

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7
Q

STRATEGY:how do we to lend structure to our answer and make it reader friendly?

A

to pair off the three powers and split the main body of our answer into following three subheadings:

Executive and Legislature

Judiciary and Execuitve

Judiciary and Legislature

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8
Q

STRATEGY: Introductory Paragraphs?

A
  • very brief mention of the origins of the Separation of Powers (eg Montesquieu)
  • State it’s a political doctrine & define its requirements & aims
  • brief comparison with US Constitution
  • hint at our conclusion, mentioning the person quoted
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9
Q

STRATEGY:- Main Body:Executive & Legislature:

A
  • argue that rels of Separation at its weakest due to uk electoral system producing built in majority for party which wins and forms gov- especially if party had large majority which Lord Hailsham described as an ‘elective dictatorship’
  • e.gs of lack of separation:
  • Executive ministers= Legislature & MPs =Parliamentary time and the legislative timetable,the House of Lords was weakened by the 1911 and 1949 Parliament Acts
  • But we might also give examples of at least some separation:
  • s 1 HCDA: disqualification of certain holders of certain offices:
    (b) civil servants
    (c) members of the armed forces
    (d) members of the police force
  • s 2 HCDA: ministerial offices:
    (a) a maximum of 95 ministers are entitled to sit and vote in the House of Commons at any one time
  • elections
  • judicial review
  • media
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10
Q

STRATEGY:- Main Body:Judiciary & Executive:

A

might argue strong sep as uk jud are so indepdant e.gs are

  • Judicial review (epitomises sop)
  • -job secure regardless of decisions
  • Immunity for judges from civil suit
  • Mirrored conventions that minister should not criticse judges or judicial decisions and judges in turn should not criticise gov ministers

-Cra reinforced separation 1st way- judicial appointments committee with more independent selection procedure for senior judges 2nd way replaced lord chancellor with post lord chief justice as head of judiciary
-e.gs of judicary respecting sep
*CCSU v Minister for Civil Service (‘the GCHQ case’) (1985)
*M v Home Office (1994)
*R v SoS Home Dep’t, ex parte Fire Brigades Union (1995)
*A and Others v SoS Home Department (2004)
-weak seperation:
executive ministers sitting on judicial tribunals (eg CPOs)

-examples of judiciary ignoring requirements of sep of powers:
Gillick v West Norfolk & Wisbeck Area Health Authority (1985)
R v R (1992)
Airedale NHS Trust v Bland (1993)
judiciary came close to boundary btw acceptable judicial intep vs unacceptable judicial law making

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11
Q

STRATEGY:- Main Body:Judiciary & Legislature:

A
  • againstrong separation due to the Judiciary in the UK being so impressively independent
  • We might provide some examples of this strong separation:
  • s 1 HCDA: disqualification of certain holders of certain offices:
    (a) holders of judicial offices
  • The sub judice rule: MPs should not comment on cases which are sub judice (‘under judgement’ or ‘ongoing’)

examples of weak separation:
*Parliamentary Supremacy arguably provides the Legislature with too much power as against the Judiciary:
*eg Burmah Oil Co Ltd. v Lord Advocate (1965):
*Burmah Oil Co. Ltd (BOCL) was a Scottish oil business
But the UK Government was so reluctant to abide by the ruling that they had to compensate BOCL, it put through Parliament the War Damage Bill which was enacted as the War Damage Act (WDA) 1965Notably, the WDA acted retrospectively

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12
Q

STRATEGY:- what has incorporation of eu enabled?

A
  1. Eu have enabled judges to make eu purposive method and not literal when interpreting stat, purposive meaning can now interpret law so judges make law and encroaching into parliaments of making law but judiciary and leg should be separate – cra reinforced sep in 2 ways- 1st way –established supreme court to end unsatisfact sit & replaced post lor chancellor with post lord speaker as speaker of h o l
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13
Q

STRATEGY:- conclusion of essay?

A
  • As we did in our introduction, we might refer, in our conclusion, to the person quoted
  • Confirm, in more detail than we did in our introduction, whether we agree with the quotation itself, & why (never forget to say why)
  • Mention once again the person quoted, clarify OUR OPINIONS in answer to the question (not just those of eg Dicey, Jennings etc) and, crucially, give REASONS for our opinions
  • It is often worth anticipating the future by mooting whether the trend, particularly in the light of the CRA 2005 reforms, is likely to be towards a more formal acknowledgment of the Separation of Powers in the UK and a greater degree of self-confidence in the Judiciary in policing the boundaries between the three bodies of state
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14
Q

STRATEGY:- summary of seperation of powers?

A

Summary:

-We should now be more familiar with the political doctrine of the Separation of Powers

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15
Q

SEMINAR-(b) What is meant by a strict interpretation of the doctrine of the Separation of Powers? Why is such an interpretation said to be unworkable?

A

Strict interp = no branch should have any influence at all over another. These academics argue that no organ of state should encroach in any way, unworkable? – Bradley and ewing call it possible neither in theory or in practive and barnett argues such a system could result in legal and const deadlock if diff brances of state disagree

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16
Q

SEMINAR-(c) How does a system of checks and balances differ from a strict interpretation of the doctrine of the Separation of Powers?

A

system of checks and balanced= there may be some degree of overlap btw branches where one branch influences another – idea behind system is that sufficient checks will enable other two branches to prevent any single branch exceeding or abusing its powers- giussni says system strict sep to achieve aim to avoid tyranny

17
Q

SEMINAR-(d) Why does the USA Constitution demonstrate a Separation of Powers between the branches of state? How does the position in the UK differ from this?

A

Us const = single written doc wrote after war of independence from uk – us less power to exec and uk flawed for it – us do check and balance whereas uk there is no formal s.o.p

18
Q

SEMINAR-exam question example is?

A

‘The British Constitution, though largely unwritten, is firmly based upon the Separation of Powers.’

Per Lord Diplock, Duport Steel v Sirs [1990] WLR 142.

Analyse the accuracy of Lord Diplock’s statement, considering whether the Constitutional Reform Act 2005 has undermined or reinforced the Separation of Powers in the United Kingdom.

19
Q

SEMINAR-Suggested Answer for that exam q?

A

-Place the question in context by explaining that the –Separation of Powers (SoP) is a political doctrine concerning the three Powers (or Organs or Branches) of State, namely:
the Executive
the Legislature &
the Judiciary
-The doctrine has been around since Aristotle (384-322 BC) but is also associated with Locke (1632-1704) & Montesquieu (1689-1755)
-Definition: Montesquieu argued three powers should be:
-Montesquieu emphasised importance of an independent Judiciary
-Aim of the doctrine: to protect individual liberty against t-yranny
-Brief comparison with US: the UK formal informal etc
-could refer to quote of lord dip
-We might also point out that Lord Diplock made his statement in 1990, halfway between (HCDA & CRA
- 2 stats that reinforce s.o.p in uk const
-Lord Diplock would presumably now feel even more strongly that ‘… the British Constitution, though largely unwritten, is firmly based upon the Separation of Powers … ’
point that out
-We might also give an early indication whether we consider the CRA has undermined or reinforced the SoP in the UK

20
Q

SEMINAR- main body of exam q?

A

-pair off three powers with subheadings
Executive and Legislature
Judiciary and Execuitve
Judiciary and Legislature
-This particular question requires us, for each pair, to analyse both:
(i) the degree of separation which exists in that relationship, and
(ii) whether the Constitutional Reform Act has undermined or reinforced that degree of separation

21
Q

SEMINAR- exec & leg main?

A

Executive & Legislature:
same as other one above
But we might also give examples of at least some separation:
s 1 HCDA: disqualification of certain holders of certain offices:
(b) civil servants
(c) members of the armed forces
(d) members of the police force
s 2 HCDA: ministerial offices:
(a) a maximum of 95 ministers are entitled to sit and vote in the House of Commons at any one time
scrutiny from the strong opposition party which the first past the post electoral system produces, including:
30 minutes of Parliamentary Questions every Wednesday
debates
votes of no confidence
(ii) whether the CRA has undermined or reinforced that degree of separation:
the CRA arguably had limited impact on this pairing, but it did remove the post of Lord Chancellor, under which the incumbent was not only a Cabinet member but also present in the other two Powers as Lord Speaker in the House of Lords and Head of the Judiciary

22
Q

SEMINAR-

A

Judiciary & Executive:
(i) the degree of separation which exists in this relationship:
-strong sep & e.gs & balance
(ii) whether the CRA has undermined or reinforced that degree of separation:
The CRA arguably reinforced separation in this pairing in two ways:
it established the Judicial Appointments Committee (JAC) to ensure a more independent selection procedure for senior judges, and
it replaced the post of Lord Chancellor, under which the incumbent was not only Head of the Judiciary but also present in the other two Powers, with the post of Lord Chief Justice, under which the incumbent is Head of the Judiciary with no presence in either of the other two Powers

23
Q

SEMINAR-

A

Judiciary & Legislature:
(i) the degree of separation which exists in this relationship:
same as other plus e.gs and balance
(ii) whether the CRA has undermined or reinforced that degree of separation:
The CRA arguably reinforced separation in this pairing in two ways:
it established the Supreme Court with the aim of ending the unsatisfactory situation whereby the twelve most senior UK judges went to work in the Legislature (the House of Lords), and
it replaced the post of Lord Chancellor, under which the incumbent was not only Head of the Judiciary but also present in the other two Powers, with the separate posts of Lord Speaker in the House of Lords and Lord Chief Justice in the Judiciary

24
Q

SEMINAR- conclusion of q?

A 
Conclusion of essay
- refer to quote lord
-confirm in detail 
-clarify opinions & reasons e.g.
We might argue, for example, that Lord Diplock’s statement that ‘… the British constitution, though largely unwritten, is firmly based upon the separation of powers … ’ bordered on exaggeration at the time it was made in 1990 but is more true today now that the CRA has been passed
25
Q

SEMINAR-summary of seminar?

A

Summary of Sweminar
-In this seminar, we considered what is meant by the political doctrine of the SoP and the degree to which it is present in the UK Constitution

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