Seperation of powers Flashcards
What is the concept of separation of powers in the UK constitution?
The separation of powers in the UK constitution refers to the fundamental concept that there is no clear separation between the executive and the legislature. The executive proposes laws, the legislature scrutinizes and approves (or rejects) proposed laws, and the judiciary interprets laws.
How does the separation of powers affect the role of the judiciary in law-making?
The role of the judiciary in law-making is to interpret laws. However, case law addressing the separation of powers shows that the courts will not encroach on what they see as areas of government policy. They will protect judicial authority from interference by the executive, but they will not interfere in the decisions of the executive via the mechanism of judicial review.
What is devolution and how does it work in the United Kingdom?
Devolution refers to the grant of legislative powers by the UK Parliament to the devolved legislatures and administrations in Scotland, Wales, and Northern Ireland. The devolved administrations have the authority to make laws on devolved matters, such as education and the environment. However, all devolved laws are subject to review by the Supreme Court. Devolution was introduced following public referendums in Scotland, Wales, and Northern Ireland in 1997 and 1998.
What changes were brought about by the Tribunals, Courts and Enforcement Act 2007?
The Tribunals, Courts and Enforcement Act 2007 reorganized the executive’s power to decide legal disputes through tribunals. Tribunals are now administered as part of the court system with a new supervisory body known as the Upper Tribunal.
What is devolved legislation and how is it created?
Devolved legislation refers to the legislation produced by the devolved Parliaments or Assemblies of Scotland, Wales, and Northern Ireland. It has the characteristics of primary legislation produced by the UK Parliament but requires enabling powers from an Act of the UK Parliament. For example, the Scotland Act 1998 and the Wales Act 2017 provide the enabling powers for devolved legislation in Scotland and Wales, respectively.
What is the role of the Attorney General in the government?
The Attorney General sits in Cabinet as the chief legal adviser to the government. They also have a role in deciding whether to bring a prosecution in individual cases.
What happens if the executive reaches a decision that is wrong in law?
If the executive, or any public body exercising a public function, reaches a decision that is wrong in law, the decision may be ‘quashed’ or rendered a nullity by the Administrative Court.
What are devolved matters and reserved matters in the context of devolution?
Devolved matters are areas of government where decision-making has been delegated by the UK Parliament to the devolved administrations. Examples include education in Scotland and the environment in Wales. Reserved matters, on the other hand, are decisions that are still taken by the UK Parliament at Westminster and have an effect on the devolved bodies. Examples of reserved matters include immigration, defense, and foreign policy.
What are the two exceptions where judges have the power to scrutinize proceedings in Parliament or review primary legislation?
The two exceptions where judges have the power to scrutinize proceedings in Parliament or review primary legislation are when the Act is inconsistent with European Union law or retained EU law, and 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.
What changes were brought about by the Constitutional Reform Act 2005 regarding the role of the Lord Chancellor?
Under the Constitutional Reform Act 2005, the role of the Lord Chancellor was reorganized to remove overlaps with legislative and judicial functions. The Lord Chancellor ceased to be the Speaker or President of the House of Lords and the head of the Judiciary in England and Wales. However, the office of Lord Chancellor has been retained as a Cabinet post with a focus on administration.
What is the role of the judiciary in the separation of powers?
The judiciary has been independent from the government since the Act of Settlement in 1701. This independence was further strengthened by the Constitutional Reform Act 2005. The judiciary’s constitutional place is fundamental to the rule of law. Judicial independence is protected by independent recruitment, pay, and rules on political involvement. The judiciary’s constitutional function includes judicial review to restrain the unlawful exercise of executive power.
How is funding for devolved administrations determined in the United Kingdom?
The responsibility for fiscal policy and public expenditure across the whole of the United Kingdom belongs to HM Treasury, which is the central government at Westminster. Budgets for devolved administrations are set within the framework of public expenditure control in the UK. Once budgets are decided, devolved administrations have the freedom to allocate spending within those limits, as long as their plans comply with the UK Government’s fiscal policy. Funding for devolved administrations is determined through spending reviews, which are scrutinized by Parliament. Devolved administrations also have their own local taxes as a source of funding.
What was the key separation of powers question in the case of Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374?
The key separation of powers question in the case of Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 was whether the Minister was required to follow a court order. The Court of Appeal and the House of Lords found that he was required to follow court orders and that he was in contempt of court when he ignored it in this case.
What is the role of the Joint Ministerial Committee in the relationship between Westminster and the devolved administrations?
The Joint Ministerial Committee provides central coordination of the overall relationship between Westminster and the devolved administrations. Its terms of reference include considering non-devolved matters that impinge on devolved responsibilities, discussing the respective treatment of devolved matters within the administrations, keeping arrangements for liaison between UK government and devolved administrations under review, and resolving disputes between the administrations.
How does devolution work in Scotland?
In Scotland, Acts of the UK Parliament extend to Scotland only if they deal with non-devolved or ‘reserved’ matters, such as immigration. However, the power of the Scottish Parliament to make acts does not affect the power of the UK Parliament to make laws for Scotland. The consent of the Scottish Parliament for Westminster to legislate on a devolved matter is indicated through a ‘Legislative Consent Motion’ in the Scottish Parliament/Assembly.
