Separation of Powers Flashcards
What did Barnett say about the separation of powers?
“There should be a clear demarcation of functions between the Legislature, Executive, and Judiciary in order that none should have excessive power”
What did Montesquieu (MON-TES-QUI-UE) say about the importance of the separation of powers?
“When the legislature and executive powers are united in the same person or body there can be no liberty.”
Define judicial review
Judicial review is the action of the juciary checking the executive’s actions to ensure that they are within the powers as given by Parliament (Sweet and Maxwell)
What judicial functions does the executive have?
The executive has some quasii-judicial unctions such as running administrative tribunals and making compulsory purchase orders (CPOs)
In what ways have the judiciary revied perogative powers?
- In the Case of Proclamations it was held that no new powers could be created by the King himself
- In BBC v Johns it was held that although the BBC was under Royal Charter it could not rely on the Crown’s exemption from income tax as this would amount to the widening of the royal perogative
What are the non justicable areas in CCSU v Minister for Civil Service?
- International Treaties
- Defence
- Honours
- Mercy
- Control of the armed forces
What are the 7 factors guaranteeing judicial independence? CATSIC
1. Constitutional convention of not cricitising judicial decisions
- Appointment: done by the independent Judicial Appointments Commission established in the CRA 2005
- Tenure is secure (CRA 2005)
- Salary: Set by the independent senior salaries review board
- Immunity from civil actions resulting from their decision
- Contempt of court prevents inteference with the judicial process
- Sub judice rule: ministers do not discuss matters in hearing
What was the effect of the CRA 2005 on the role of the Lord Chancellor?
- Removed him as head of the judiciary
- Now not part of the judicial branch.
- New position of Lord Chief Justice replaces him
What two conventions seperate the judiciary and legislature?
- There is a convention that MPs will not criticise individual judges
- There is a convention that judges will not become involved in political activities
What is the effect of the House of Commons Disqualification Act 1975?
Members of the judiciary cannot become house of commons members
What is Article 9 of the Bill of Rights 1689?
Article 9 of the Bill of Rights 1689 provides that MPs cannot be made subject to legal sanction for comments made in Parliament
What is the geographic effect of the CRA 2005 on the Law Lords?
The CRA 2005 moves the Law Lorrds out of Parliament and seperates them from the House of Lords
What are the three theories of judicial legislation and which is espoused by whom?
- Declaratory theory- judges only declare what the law is
- Legislative theory- much of our common law is judge made and intepretation is significant
- Judicial restraint theory- judges should be reluctant to develop common law in areas Parliament intends to consider
What events have led to the politicisation of the judiciary?
May-Gove-Leveson
- In February 2013 Theresa May accused judges of “subverting democracy” by holding that foreign criminals had rights under Article 8 of the ECHR
- In Luton v Minister for Educatiion in 2010, Michael Gove’s halting of the Building Schools for the Future was found to be ultra vires
- There have been an increase in senior members of the judiciary conducting “inquiries” into openly political matters IE Leveson on Press; Hutton on Iraq
What is the effeect of the House of Commons Disqualification Act on Executive-Legislature relations?
To ban civil servants from serving in the House of Commons
What is the subjudice rule in Parliament?
Parliament will not discuss details of cases before the courts
How does Lord Hailsham describe Parliament?
As an “elective dictatorship”.
