Separation of Powers Flashcards
Leading theorist on separation of powers?
Montesquieu - 17th/18th centure
Why isn’t the theory of the separation of powers clear in the UK?
Due to the UK constitution being uncodified
What is each of the three organ’s roles in creating legislation?
- Executive - proposes primary legislation and drafts secondary legislation
- Legislature - Parliament can propose primary legislation of its own (Private Members’ bills) and decide whether they become law
- Judiciary - interprets legislation and develops common law
Importance of Shaw v Director of Public Prosecutions? [1962]
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…
Malone v Metropolitan Police Commissioner [1979]?
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.
Gillick v West Norfolk Health Authority [1986]?
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”
R v R [1992]
Marital rape.
Judicial activism: overturned marital rape precedent. Absence of legislation by Parliament; change of common law appropriate.
Airedale v NHS Trust v Bland [1993]
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…”
R (Evans) v Attorney General [2015]
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!
If courts establish a legal principle, can Parliament change it?
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.
Overlapping roles in gov and Parliament?
Senior government ministers also MPs.
Parliament through enactment of legislation confers power on gov.
Under what authority does the executive carry out legislative functions?
Primary legislation - done by creating secondary legislation in the form of rules, orders and regulations. Further rules identified in ‘parent’ Act of Parliament.
What’s a Henry VIII clause? In what context are they significant?
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
Three levels of scrutiny re. subordinate legislation?
- no scrutiny
- negative instruments - can become law without debate/vote
- affirmative instruments - need both House approval
Concept of vires re. process of making regulations?
> > 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’
Committees re. scrutinising statutory instruments?
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
Examples of Delegated Powers and Regulatory Reform Committee (House of Lords) committees work?
UK Borders Bill (2006-2007): Delegated Powers and Regulatory Reform Committee recommended changes and these were accepted
Does the executive have judicial functions?
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)
Relevance of Gillies v Secretary of State for Work and Pensions [2006] re. statutory tribunals?
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.
Role of Lord Chancellor?
Gov minister with responsibility for the administration of justice including the administration of the court system - role limited under CRA 2005
Role of Attorney General?
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.
Where can it be said there is strict separation of powers?
executive/legislature and judiciary
Where is independence of the judiciary laid out?
s 3 CRA 2005
Before CRA how were judges appointed? How are they appointed now?
Before - Lord Chancellor, member of executive and legislature.
Now - s 6 CRA - independent judicial appointments commission: 15 commissioners
