Separation of powers lecture notes Flashcards
Barendt on SoP
. . .the Separation of Powers is not in essence concerned with the allocation of functions as such. Its primary purpose. . .is the prevention of the arbitrary government, or tyranny, which may arise from the concentration of power. The allocation of functions between three, or perhaps more, branches of government is only a means to achieve that end.
Judicial perspectives of the SoP
Duport Steel v Sirs [1980], per Lord Diplock:
‘… it cannot be too strongly emphasised that the British constitution, though largely unwritten, is firmly based on the separation of powers.’
R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995]. It was held in this case that it is for Parliament to change a statute and not the minister – an act of Parliament can allow a minister to bring a piece of legislation into force but not ignore the provision altogether. Per Lord Mustill:
‘It is a feature of the peculiarly British conception of the separation of powers that Parliament, the executive and the courts have each their distinct and largely exclusive domain. Parliament has a legally unchallengeable right to make whatever laws it thinks right. The executive carries on the administration of the country in accordance with the powers conferred on it by law. The courts interpret the laws, and see that they are obeyed.’
Lord Nolan in M v Home Office [1994] stated that “The proper constitutional relationship of the executive with the courts is that the courts will respect all acts of the executive within its lawful province, and that the executive will respect all decisions of the courts as to what its lawful province is.”
Lord Hoffman went further in R (Prolife Alliance) v BBC [2004] and deemed that the separation of powers ‘is a question of law and must therefore be decided by the courts.’
Executive dominance of Parliament
The use of whip, party loyalty, partisan atmosphere makes it extremely rare for govt with a majority to suffer defeat. Last defeat was in 1980s. Blair’s govt was defeated only 3 times on clauses of bills.
This can be contrasted with the Lords, of which approx 20% are cross benchers. After 6 years of Blair govt there had been 1,600 legislative votes in the commons with 0 defeats and 639 votes in the Lords, with 164 defeats (one in four).
Ahmed v HM Treasury
Found that the exec could not use orders in council (prerogative) to implement draconian asset freezing powers to be used against terror suspects on the basis only of suspicion of involvement. Parliament would have to enact such grave interferences with individual rights.
Henry VIII clauses
Give ministers wide general powers to use provisions of delegated legislation to repeal primary legislation. The Legislation and Regulatory Reform Act 2006 sought to give ministers power to amend, repeal or replace any legislation for any purpose. This would give ministers a general power to legislate which flies in the face of the separation of powers.
Indeed after protest it was reduced to power to make orders, including those repealing legislation for the purpose of ‘removing or reducing any burden, or the overall burdens, resulting directly or indirectly for any person from any legislation.’ It is now subject to Parliamentary veto.
Another example of a Henry VIII clause is in s10 of the HRA where ministers have authority to fasttrack remedial legislation through parliament which is incompatible with convention rights. However schedule 2 of this section states that “(1) a remedial order may -
(a) contain such incidental, supplemental, consequential or transitional provisions as the person making it considers appropriate…
(2) The power conferred by sub-paragraph (1)(a) includes -
(a) power to amend primary legislation (including primary legislation other than that which contains the incompatible provision…”
Anderson [2003]
Instigated the process of removal of the Home Sec for taking into account public wishes in setting the tariff sentence for a murderer.
Legislative functions of the judiciary
Shaw v DPP: invented the law ‘conspiracy to corrupt public morals.’
Knuller v DPP: followed the Shaw v DPP law and another individual was convicted under it.
McGonnell v UK
Also showed the untenability of the Law Lords in the House of Lords, the Lord Chancellor and the Home Sec. In this case the Bailiff of Guernsey sat as a judge on a planning permission claim subject to the laws which he presided over as head of the island’s legislature.
