Separation of Powers

Question 1

Who espoused the doctrine of the separation of powers, and in what work?

Answer 1

Montesquieu, in De L’Esprit des Lois.

Question 2

What are the 3 branches of government?

Answer 2

1. Legislature - makes laws.
2. Executive - implementing and executing laws.
3. Judiciary - applying laws to resolve disputes.

Question 3

Give 2 conflicting schools of thought regarding the importance of the doctrine of the separation of powers in the UK constitution.

Answer 3

Lord Diplock in Duport Steel v Sirs - UK constitution firmly based on separation of powers.
Hilaire Barnett - not a predominant feature.

Question 4

Give 2 ways in which the executive and legislature are separated in the UK.

Answer 4

1. s1 HoCDA 1975 - civil servants, police etc cannot be MPs.

2. s2 HoCDA 1975 - number of government Ministers as MPs limited to 95.

Question 5

Who said what in relation to the overlap between the executive and legislature in the UK?

Answer 5

Lord Hailsham - an elected dictatorship.

Question 6

Give 2 ways in which the executive and legislature overlap in the UK.

Answer 6

1. FPTP system means inbuilt majority.
2. Government sets legislative agenda; Parliament ‘rubberstamps’.
3. Parliament Acts 1911/1949 mean gov’t can legislate ‘by the back door’.
4. Henry VIII powers, cf. s10 HRA 1998.

Question 7

Give 3 examples of checks and balances between the executive and the legislature in the UK.

Answer 7

1. Scrutiny through Questions, General & Select Committees.
2. Individual Ministerial/Collective Cabinet responsibility.
3. PCA ombudsman (N.B. not binding).

Question 8

Give 5 ways in which the executive and judiciary are separated in the UK.

Answer 8

1. s3 CRA 2005 - gov’t duty to uphold independence of judiciary.
2. Supported by Contempt of Court Act 1981.
3. CRA 2005: Lord Chancellor to Lord Chief Justice.
4. JAC & Senior Salaries Board.
5. Conventions & sub-judice rule.

Question 9

Give 2 ways in which the executive and judiciary overlap in the UK.

Answer 9

1. Administrative Tribunals.

2. CPO decisions.

Question 10

Give 3 examples of checks and balances between the executive and the judiciary in the UK.

Answer 10

1. Judicial review of executive action & prerogative powers.
2. But only legality, not merit.
3. N.B. some prerogative powers non-justiciable, e.g. defence; treaties.

Question 11

Give 5 ways in which the legislature and judiciary are separated in the UK.

Answer 11

1. CRA 2005 - Supreme Court.
2. Enrolled Act Rule, cf. Wauchope; Pickins.
3. Conventions & sub-judice rule.
4. s1 HoLDA - judges can’t be MPs.
5. Art 9, Bill of Rights 1689 - Parliamentary privilege.

Question 12

Give 1 way in which the executive and judiciary overlap in the UK.

Answer 12

Legislative argument = development of common law as law-making.

Question 13

Give 2 examples of checks and balances between the legislature and the judiciary in the UK.

Answer 13

1. Supremacy of Parliament - judges must apply statute.

2. Parliament can overrule common by legislating, cf. Burmah Oil/WDA 1965.