SEPERATION OF POWERS

Question 1

WHAT IS SEPARATION OF POWERS

Answer 1

• a doctrine or theory explaining how power is distributed between main institutions of the state (legislature, executive and judiciary)
• In order to avoid concentration of power and limit potential for abuse
• in order that government can function efficiently and or individual liberty is protected

Question 2

DEFINITIONS

Answer 2

• a doctrine to underpin the efficient operation of a state by determining which of its branches have which powers and which functions
• usually focuses on some level of separation of three main branches of state
  ~ executive (power to govern by creating policy)
  ~ legislature (power to enact government policy into statute and repeal existing statutes)
  ~ judiciary (power to apply and enforce statute)
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Question 3

HISTORY

Answer 3

• Magna Carta 1215 curtailment of monarchs powers (rule by Devine right) by early parliament (rule by and under law)
• petition of Right 1628 - reasserting monarchs powers to that provided by and under law made by parliament
• Bill of Rights 1689 final break in separation of powers between monarch and parliament reassertion of RoL under judicial watch. Established the doctrine of separation of powers and set the stage for its refinement

Question 4

PARLIAMENTARY SUPREMACY

Answer 4

• half of parliament unelected
• other half contains majority winning party
• parliament amends repeals and enacted legislation and also scrutinises executive exercise of power

Question 5

EXECUTIVE

Answer 5

• personnel taken from legislature
• institutional separation- core government is cabinet but executive and legislature overlap
• functional separation - executive governs the country and introduces policy and implements legislation
• operates too under prerogative power

Question 6

JUDICIARY

Answer 6

• judicial independence
• rule of recognition- judiciary recognises that laws of parliament will be obeyed including over its common law except if they are contrary to common law principles
• as long as parliament adheres to RoL but protection against breach requires separation of powers
• judicial activism
• HRA 1998 s4 declaration of incompatibility no power in this legislation is granted to judiciary to strike down a statute in conflict with ECHR rights
• judicial review (limited challenge to executive action)
• ## judicial involvement with government initiated inquiries

Question 7

MORE INFO

Answer 7

• cases
• legislation
• government Fury against high court
• etc.