Separation of powers

Question 1

Montesquieu said

Answer 1

liberty would be better protected if there is SOP into judicial, executive and legislative branches

Question 2

Munro, 3 ideas

Answer 2

1. no person or body should form more than one part of the 3 organs of state
2. one organ shouldn’t exercise the functions of either of the other 2 organs
3. one organ shouldn’tinterfere with or exercise control over the functions of 2 other organs

Question 3

De Smith & Barendt thought that

Answer 3

there is no SOP in the UK

Question 4

Cases where courts stand for SOP

Answer 4

Malone v MPC
R(A) v SSHD
Liversidge v Anderson
Rossminster

Question 5

Cases where courts support SOP

Answer 5

exp Fire Brigades Union
GCHQ
Re M
Laker Airways

Question 6

Cases where courts act as legislators

Answer 6

Shaw v DPP
R v R
Gillick v WNHA

Question 7

Constitutional Reform Act 2005 consequences

Answer 7

1. formal separation of the judiciary from the legislature and the creation of the Supreme Court
2. role of Lord Chancellor was reorganised to remove overlaps with the legislative and judicial functions

Question 8

Lord Chancellor under CRA 2005

Answer 8

1. ceased to be the Speaker of the HL
2. ceased to be the head of the Judiciary in England and Wales
3. surrendered his powers of judicial appointment to the Judicial Appointments Commission

Question 9

What is the relationship between the 3 institutions?

Answer 9

The executive is the majority party in the legislature, there is no separation of membership.
-There is an effective separation of judicial power from the other branches. Judges may not sit in the commons.

Question 10

What is the overlap between the legislature and judiciary?

Answer 10

• Judicial law-making? In R v R, the courts claimed that marital rape was illegal even though it wasn’t in statute- retrospective law-making.
• Under s 3(1) HRA the courts must interpret legislation compatibly with convention rights as far as possible e.g. Ghaidan v Godin Mendoza- the courts can modify the meaning of legislation (although they must still say within the general meaning of what the legislature intended)

Question 11

What checks and balances are present between parliament and executive?

Answer 11

• government is accountable to parliament through debates, select committees etc.
• Parliament can demand resignation of government/ministers through a vote of no confidence.

Question 12

What checks and balance are present between the judiciary and executive?

Answer 12

• Judicial review (procedural check)
• Through s 6(1) HRA it is unlawful for a public authority to act incompatible with convention rights (substantive check)

Question 13

What checks and balances are present between the judiciary and parliament?

Answer 13

• The judiciary can declare statutes incompatible with the ECHR under a section 4(1) declaration of incompatibility (although it does not affect their validity)
• The judiciary has a limited power to ‘dis-apply’ statutory provisions which contravene EU law- e.g. Factortame.