Separation of Powers

Question 1

Leading theorist on separation of powers?

Answer 1

Montesquieu - 17th/18th centure

Question 2

Why isn’t the theory of the separation of powers clear in the UK?

Answer 2

Due to the UK constitution being uncodified

Question 3

What is each of the three organ’s roles in creating legislation?

Answer 3

1. Executive - proposes primary legislation and drafts secondary legislation
2. Legislature - Parliament can propose primary legislation of its own (Private Members’ bills) and decide whether they become law
3. Judiciary - interprets legislation and develops common law

Question 4

Importance of Shaw v Director of Public Prosecutions? [1962]

Answer 4

Prostitute directory & ‘conspiracy to corrupt public morals’
Judicial activism: Shaw wanted to publish directory of prostitutes: conviction of ‘conspiracy to corrupt public morals’ was upheld though there was no such statutory offence…

Question 5

Malone v Metropolitan Police Commissioner [1979]?

Answer 5

Phone interception case.
Judicial ‘deference’ (opposite of activism). Malone charged with handling stolen property - prosecution admitted that there had been interception of Malone’s phone conversations on SoS authority - Court found for MPC and held no prohibition of interception and no right to privacy in English law - only Parliament could ‘create such a right’ ECHR still a treaty.

Question 6

Gillick v West Norfolk Health Authority [1986]?

Answer 6

Children under 16 contraception.
Two key points re. judicial law-making:
- Judges in the senior courts are often required to make decisions in the absence of any explicit statutory or common law authority.
- A feature of common law is that it develops with the changing political and cultural climate.
No previous authority. HoL created authority: “Gillick competence”

Question 7

R v R [1992]

Answer 7

Marital rape.
Judicial activism: overturned marital rape precedent. Absence of legislation by Parliament; change of common law appropriate.

Question 8

Airedale v NHS Trust v Bland [1993]

Answer 8

Hillsborough life support.
CoA granted declaration to withdraw treatment. Official Solicitor’s appeal to HoL dismissed. However, law lords emphasised importance of Parliament legislating on novel matters of policy… “where cases raise wholly new moral and social issues…”

Question 9

R (Evans) v Attorney General [2015]

Answer 9

Journalist request for Prince Charles’ correspondence re. spying on gov agencies, “spider memos”.
Gov departments refused to disclose. Upper Tribunal rules should be disclosed. Attorney General issued certificate under s 53(2) Freedom of Information Act 2000; Supreme Court rules against and noted fundamental principle that court’s decision could not be ignored by anyone incl. executive!

Question 10

If courts establish a legal principle, can Parliament change it?

Answer 10

Yes - free to do so.
This happened following Burmah Oil Company (Burma Trading) Ltd. v Lord Advocate [1965] AC 75. Parl. passed War Damage Act 1965 which exempted paying for property damage/destruction in war.

Question 11

Overlapping roles in gov and Parliament?

Answer 11

Senior government ministers also MPs.

Parliament through enactment of legislation confers power on gov.

Question 12

Under what authority does the executive carry out legislative functions?

Answer 12

Primary legislation - done by creating secondary legislation in the form of rules, orders and regulations. Further rules identified in ‘parent’ Act of Parliament.

Question 13

What’s a Henry VIII clause? In what context are they significant?

Answer 13

clauses allowing the executive to amend or repeal provisions in an Act of Parliament using secondary legislation - controversial.
particular significance in the context of Brexit. The EU Withdrawal Act 2018 provides that laws and regulation made over more than 45 years, while the UK was a member of the EU, will continue to apply after the UK leaves the EU - this will give ministers ‘Henry VIII powers’ to make changes to legislation because will have to make amendments which mention EU institutions that no longer apply

Question 14

Three levels of scrutiny re. subordinate legislation?

Answer 14

1. no scrutiny
2. negative instruments - can become law without debate/vote
3. affirmative instruments - need both House approval

Question 15

Concept of vires re. process of making regulations?

Answer 15

> > Parliament passes an Act giving the Secretary of State (‘SoS’) power to make regulations
The SoS makes regulations, which must be ‘intra vires’ the Act
The Administrative Court decides whether the regulation is ‘intra vires’

Question 16

Committees re. scrutinising statutory instruments?

Answer 16

Delegated Powers and Regulatory Reform Committee (House of Lords)
 Examines delegated powers in primary legislation to see what powers ministers are asking for (before the primary legislation is debated in Parliament).
Merits of Statutory Instruments Committee (House of Lords):
 Examines the secondary legislation which results from the exercise of those powers. Joint Committee on Statutory Instruments:
 Ensures that each SI complies with the requirements of the parent act

Question 17

Examples of Delegated Powers and Regulatory Reform Committee (House of Lords) committees work?

Answer 17

UK Borders Bill (2006-2007): Delegated Powers and Regulatory Reform Committee recommended changes and these were accepted

Question 18

Does the executive have judicial functions?

Answer 18

Yes - example R v Home Secretary, ex parte Venables and Thompson [1998]: Home Secretary acted unlawfully in setting tarriff sentence for those convicted (murder of James Bulger by 2 10 yr old boys)

Question 19

Relevance of Gillies v Secretary of State for Work and Pensions [2006] re. statutory tribunals?

Answer 19

Although HoL rejected C’s argument of bias, the case illustrates importance of impartiality in tribunal system: until 2007 executive had power through network of tribunals, but tribunals now administered through court system.

Question 20

Role of Lord Chancellor?

Answer 20

Gov minister with responsibility for the administration of justice including the administration of the court system - role limited under CRA 2005

Question 21

Role of Attorney General?

Answer 21

Chief legal advisor in Cabinet: rise to concerns re. separation of powers and political influence: good example, Blair gov advice in lead up to Iraq War 2003.

Question 22

Where can it be said there is strict separation of powers?

Answer 22

executive/legislature and judiciary

Question 23

Where is independence of the judiciary laid out?

Answer 23

s 3 CRA 2005

Question 24

Before CRA how were judges appointed? How are they appointed now?

Answer 24

Before - Lord Chancellor, member of executive and legislature.
Now - s 6 CRA - independent judicial appointments commission: 15 commissioners

Question 25

Do judges have security of tenure? Why is this important?

Answer 25

Yes - protects political dismissal - Senior Courts Act 1981 s 11 for judges of Crown Court, high Court and CoA, and CRA s 33 for justices of Supreme Court

Question 26

3 points of political independence of judges?

Answer 26

1. full-time judges not allowed to sit in HoC under HoC disqualification Act 1975
2. Parliamentary rules - cabinet and MPs should not criticise - though this is not always respected
3. courts lack jurisdiction to inquire into proceedings in Parliament - art 9 Bill of Rights 1689

Question 27

Do judges have immunity from civil actions? When?

Answer 27

Yes - as long as action done in judicial capacity in court.
Sirros v Moore [1975]: held circuit judge entitled to immunity from liability in civil action for damages, because done whilst in capacity as judge in good faith (although mistakenly)

Question 28

Most hearings should be conducted in public (justice seen to be done): when can they be conducted in private?

Answer 28

Civil Procedure Rule 39.2:

• publicity defeat object
• interests of child
• national security
• confidential information (including financial matters) and publicity would damage that

Question 29

Two purposes of judicial review?

Answer 29

 To prevent abuse of power by the executive

 To uphold individual rights

Question 30

What court hears judicial reviews and what do they examine?

Answer 30

Begins in Administrative Court - legality of decision

Question 31

Judges have no power to scrutinise proceedings in parliament or to review primary legislation: what are the two exceptions?

Answer 31

 Where the Act is inconsistent with European Union law or retained EU law
 If the Act of Parliament is incompatible with the European Convention on Human Rights, the Court may make a declaration to that effect pursuant to the Human Rights Act 1998
- delegated legislation can be challenged - judicial review process

Question 32

Will courts trespass into matters of gov policy?

Answer 32

Broadly - no (especially national security): most important judgment is Council of Civil Service Unions v Minister for the Civil Service [1985]

Question 33

Has there been a development of the law of ‘justiciability’?

Answer 33

Yes - possible to say no power is inherently unreviewable, however some areas that courts cannot and should not engage….
HOWEVER courts are obliged to comment on legality of executive decisions even in matters of ‘high policy’

Question 34

Importance of M v Home Office [1994]?

Answer 34

Enforcement of court orders - SoS ignored court order to return M to UK re. deportation - CoA found SoS personally in contempt of court.

Question 35

Importance of R v Secretary of State for the Home Department Ex p. Fire Brigades Union [1995]?

Answer 35

SoS announced intention not to bring in statutory compensation scheme for criminal injuries (approved by Parliament) but to instead introduce radically diff scheme using prerogative power: court ruled acted unlawfully and abuse of prerogative power.

Question 36

7 key cases on sep of powers?

Answer 36

> Shaw v DPP [1962] AC 220
Malone v Metropolitan Police Commissioner [1979] Ch 344
Gillick v West Norfolk Health Authority [1986] AC 112
RvR[1992]1AC599
Airedale NHS Trust v Bland [1993] AC 789
R v Home Secretary, ex parte Fire Brigades Union and Others [1995] 2 AC 513
R (Jackson) v Attorney General [2005] UKHL 56

Question 37

R (Wakenshaw) v Secretary of State for Justice [2018] impact?

Answer 37

Case brought by Wakenshaw (prisoner) regarding impartiality of the Parole Board.
Parole Board independence from the gov - Nick Hardwick, the former Parole Board chair, was pressured to quit over the John Worboys case - judicial review.