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Seperation of Powers LGS 3 Flashcards

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1
Q

Possible interpretations of the doctrine

According to Professor Wade separation of powers should mean that:

A
  1. The same person should not be a member of more than one of the three organs of state;

  1. One organ of state should not interfere with the work of another;
  2. One organ of state should not exercise the functions of another.
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2
Q
  1. WHAT ARE THE ORIGINS OF THE DOCTRINE?

Bolingbroke

Montesquieu

A

Viscount Henry St John Bolingbroke (1658-1751) argued that the protection of liberty and security within the State depended upon achieving and maintaining equilibrium between the Crown, Parliament and the people: as the confusion of powers tends to destroy it. Safety of the whole depends on the balance of the parts.

Baron Montesquieu, writing in the mid 18th century, stressed the importance of the separation of powers in order to protect individual liberty and democracy:

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3
Q
  1. TO WHAT EXTENT DOES IT APPLY TO THE UK CONSTITUTION?
    (The UK Model)

Reform Act

Walter Bagehot

Lord Diplock:

A

In the UK, the three organs of state aren’t completely separate from one another. The system of parliamentary government that evolved in the 19thcentury under the Great Reform act 1832 - the legislative and executive are closely inter related.

: “the efficient secret of the English constitution…may be described as the close union, the nearly complete fusion, of the executive and legislative powers. The connecting link [between the executive and Parliament] is the Cabinet.” (The English Constitution)

the British constitution, though largely unwritten, is firmly based upon the separation of powers; Parliament makes the laws, the judiciary interpret them.” (Duport Steels v Sirs [1980] 1 WLR 142 HL);

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4
Q
  1. TO WHAT EXTENT DOES IT APPLY TO THE UK CONSTITUTION?
    (The UK Model)

Lord Steyn:

A

“The separation of powers between the judiciary and the legislature and executive branches of government is a strong principle of our system of government. The House of Lords and the Privy Council have so stated…” (R v Secretary of State for Home Department ex parte Anderson [2002]).

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5
Q

A) Executive and Legislature

Lord Hailsham

A

i) PERSONNEL:

The personnel of the Government (the Executive) come from the legislature:

  • Ministers of the Crown must be members of either House of Parliament.
  • The Prime Minister and the Chancellor of the Exchequer must be members of the House of Commons.

Reognised problem calling it elective dictatorship, that electoral processes can result in situation wherexecutive controls the legislature too.

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6
Q

ii) FUNCTIONS:

(2)

A

Secondary/delegated legislation: laws and regulations made by Government departments, local authorities and other public bodies under the authority of an Act of Parliament.

Think point: Does secondary legislation enhance efficiency by relieving Parliament from scrutinising every detail of legislation or is it rather an abuse of power by the Executive?

Road Traffic Act leaves it to the minister for transport for determine types of headware to be worn, the exeutive therefore legislates.

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7
Q

iii) CONTROLS:

A

• A vote of no confidence

Opportunity to arrest executive authority.

Strong and vocal authority

Her majesty’s oppositioand questions

Question time, debates adn select committees.

House of lords - Though limited by the parliament acts of 1911 and 1949

  • S.2 House of Commons Disqualification Act 1975
  • Control and scrutiny of delegated legislation
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8
Q

B) Executive and Judiciary

Harold Wilson, 1963

A

i) PERSONNEL:

• Attorney General
Governments key legal adviser but also plays role in judicial process asa guardian of the public interest.

Warned against pratice of judicial enquiries as it was fraught wit hdanger both in devaluing the role of parliament and blurring the edge which marks the sharp definition of function of judiciary and executive.

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9
Q

Executive and Judiciary

ii) FUNCTIONS:

The historical role of the Home Secretary in relation to tariff-setting:

A

• Judges as chairmen of tribunals of inquiry. Example:

  • The Leveson Inquiry (2011/12)

The hutton Equiy - Lord Hutton

Be in Cattle - Lord Phillips

R v Secretary of State for the Home Office ex parte Anderson [2002] UK The ECtHR found home secretary tariff setting to be a breach of Art 6 and confirmed that decisions as to periods of detention should be made by judges rather than politicians.

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10
Q

iii) CONTROLS:

• Judicial Review of Executive Action

A

Council of Civil Service Unions v Minister of State for the Civil Service [1985] AC 374
(the “GCHQ” case)

sets out test formulated by court as to which areas of power of the executive are justiciable.

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11
Q

Judicial Appointments

Judicial Appointments Commission

Also security of tenure and remuneration

A

Imports (perceived?) independence whilst recognising that the appointment of judges is still a central function of the State.

To remove a judge requires both houses of parliament, their salary is set by the executive.

Security of Tenure
Difficult to remove from office.

Security of Remuneration
£££!

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12
Q

C) Legislature and Judiciary

i) PERSONNEL:

A

Note: The ‘historical’ role of the House of Lords as the highest domestic court in the land and the role of the new Supreme Court of the UK in remedying this overlap of personnel and function.

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13
Q

ii) FUNCTIONS:

• Parliamentary privilege

Shaw & dpp

R v R [1992]

A

Parliament is able to regulate itself, is it performing a judicia function on itself. This is limited, MP expenses scandal, claimed they shouldonly be accountable to parliament but some MPs were charged criminally and went to jail

Shaw: Do judiciary violate interpretation of statute by making up the law?

House of lords – upheld conviction of conspiracy to corrupt the public morals .

o No offence under common law or statute – conviction upheld.

House of lords ignored common law exemption from rape of wife stating it forms no part of English law at the time.

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14
Q

The Human Rights Act 1998 (“HRA”)

iii) CONTROLS:

A

• Senior Court judges can be removed from office by an address of both Houses of Parliament to the Crown.

• The sub judice resolution.

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15
Q

D) Judiciary, Executive and Legislature

• The Sovereign:

A

Head of the executive, the legislature and the judiciary. Is the involvement of the Sovereign in all three branches a good thing, a bad thing or an irrelevance?

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16
Q
  1. WHAT IMPACT HAVE RECENT CONSTITUTIONAL REFORMS HAD ON THE KEY FEATURES OF OUR CONSTITUTION?

• The Lord Chancellor – Until April 2006:

A
  1. Head of the Judiciary
    The Lord Chancellor was head of the judiciary and able to sit as a judge. The Lord Chancellor was also President of the Supreme Court of England and Wales.
2. Cabinet Minister (Executive)
 He was (and still is) a Cabinet minister responsible for the administration of justice.

  1. Speaker of the House of Lords.
    The Lord Chancellor was also Speaker in the House of Lords.
How well did you know this?
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17
Q

McGonnell v UK

Deputy Bailiff of Guernsey refused application and 2nd time and appealed to ECtHR on Art 6

A

President of Guernsey’s legislative body;

Senior judge of the Royal Court;

Senior member of the executive.

As a result, parliament realised they needed to reform the role of Lord Chancellor as it too would not be ompatible with Art 6

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18
Q

The Constitutional Reform Act 2005 (the “Act”)

  • Reform of the Office of the Lord Chancellor:
  • Supreme Court:
A

Created lord chief justice, took over many of the judil functions carried out by the old lord chancellor, the current one is lord Judge.

Lord Chancellor - No longer a speaker in the house of lords.

Lord Chancellor Continues to be be a government minister responsible for justice, courts system etc.

Independant supreme court that has take n over the functions of the ouse of lord. Has its own independant appointments system, staff and budget.

How well did you know this?
1
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2
3
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19
Q
  • Judicial independence:
  • Judicial Appointments Commission
A

Act provides for a legal duty on Government ministers to uphold the independence of the judiciary. They will not be allowed to influence judicial decisions through any special access to judges.

As we have already seen, the Act has created an independent Commission to recommend judicial appointments to the Secretary of State for Justice.

20
Q

What factors might affect the independence of the judiciary?

i) APPOINTMENT SYSTEM
ii) REMOVAL FROM OFFICE
iii) JUDICIAL IMMUNITY

A

British judges have long been regarded as a socially elite group, unrepresentative of the wider community. Will these recent reforms assist?

The Act of Settlement 1700 secures the independence of the judiciary by establishing the principle that senior judges (i.e. High Court judges and above) cannot be dismissed by the Executive except by an address to the Crown from both Houses of Parliament.

Judicial proceedings are privileged. The judge of a superior court is not liable for anything done or said in the exercise of judicial functions (Sirros v Moore [1975] 1QB 118).

21
Q

iv) POLITICAL TIES
v) FREEDOM FROM BIAS

A

Judges are expected to remain politically impartial. All political ties must be severed on appointment to the bench. (Lord Irvine: “In exercising their powers of judicial review… judges should never give grounds for the public to believe that they intend to reverse government policies which they dislike”.)

R v Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet (No 2)Held: his interest meant that he was automatically disqualified from sitting on the appeal. The House of Lords did not even need to apply the test for bias. The decision made at appeal had therefore been improperly made and was overturned.

22
Q

SUMMARY: TO WHAT EXTENT DO WE HAVE A FORMAL SEPARATION OF POWERS?

Sir John Donaldson:

Professor Wade:

A

Those who claim that we do, lay emphasis on the recent reforms and the independence of the judiciary:

British Airways Board v Laker Airways Ltd [1984] QB 193 CA emphasised the importance of the judiciary and their detachment from political policy which was subject to change and nothing to do with thecourts.

“In many constitutions separation of powers has meant an unhampered executive. In England, it means little more than an independent judiciary.”

23
Q

Key themes:

A

Three centres of power.

Separation to prevent abuse of power.

Checks & balances.

Reform and the independence of the judiciary in the UK.

24
Q
  1. The same person should not be a member of more than one of the three organs of state;

  1. One organ of state should not interfere with the work of another;
  2. One organ of state should not exercise the functions of another.
A

Possible interpretations of the doctrine

According to Professor Wade separation of powers should mean that:

25
Q

Viscount Henry St John Bolingbroke (1658-1751) argued that the protection of liberty and security within the State depended upon achieving and maintaining equilibrium between the Crown, Parliament and the people: as the confusion of powers tends to destroy it. Safety of the whole depends on the balance of the parts.

Baron Montesquieu, writing in the mid 18th century, stressed the importance of the separation of powers in order to protect individual liberty and democracy:

A
  1. WHAT ARE THE ORIGINS OF THE DOCTRINE?

Bolingbroke

Montesquieu

26
Q

In the UK, the three organs of state aren’t completely separate from one another. The system of parliamentary government that evolved in the 19thcentury under the Great Reform act 1832 - the legislative and executive are closely inter related.

: “the efficient secret of the English constitution…may be described as the close union, the nearly complete fusion, of the executive and legislative powers. The connecting link [between the executive and Parliament] is the Cabinet.” (The English Constitution)

the British constitution, though largely unwritten, is firmly based upon the separation of powers; Parliament makes the laws, the judiciary interpret them.” (Duport Steels v Sirs [1980] 1 WLR 142 HL);

A
  1. TO WHAT EXTENT DOES IT APPLY TO THE UK CONSTITUTION?
    (The UK Model)

Reform Act

Walter Bagehot

Lord Diplock:

27
Q

“The separation of powers between the judiciary and the legislature and executive branches of government is a strong principle of our system of government. The House of Lords and the Privy Council have so stated…” (R v Secretary of State for Home Department ex parte Anderson [2002]).

A
  1. TO WHAT EXTENT DOES IT APPLY TO THE UK CONSTITUTION?
    (The UK Model)

Lord Steyn:

28
Q

i) PERSONNEL:

The personnel of the Government (the Executive) come from the legislature:

  • Ministers of the Crown must be members of either House of Parliament.
  • The Prime Minister and the Chancellor of the Exchequer must be members of the House of Commons.

Reognised problem calling it elective dictatorship, that electoral processes can result in situation wherexecutive controls the legislature too.

A

A) Executive and Legislature

Lord Hailsham

29
Q

Secondary/delegated legislation: laws and regulations made by Government departments, local authorities and other public bodies under the authority of an Act of Parliament.

Think point: Does secondary legislation enhance efficiency by relieving Parliament from scrutinising every detail of legislation or is it rather an abuse of power by the Executive?

Road Traffic Act leaves it to the minister for transport for determine types of headware to be worn, the exeutive therefore legislates.

A

ii) FUNCTIONS:

(2)

30
Q

• A vote of no confidence

Opportunity to arrest executive authority.

Strong and vocal authority

Her majesty’s oppositioand questions

Question time, debates adn select committees.

House of lords - Though limited by the parliament acts of 1911 and 1949

  • S.2 House of Commons Disqualification Act 1975
  • Control and scrutiny of delegated legislation
A

iii) CONTROLS:

31
Q

i) PERSONNEL:

• Attorney General
Governments key legal adviser but also plays role in judicial process asa guardian of the public interest.

Warned against pratice of judicial enquiries as it was fraught wit hdanger both in devaluing the role of parliament and blurring the edge which marks the sharp definition of function of judiciary and executive.

A

B) Executive and Judiciary

Harold Wilson, 1963

32
Q

• Judges as chairmen of tribunals of inquiry. Example:

  • The Leveson Inquiry (2011/12)

The hutton Equiy - Lord Hutton

Be in Cattle - Lord Phillips

R v Secretary of State for the Home Office ex parte Anderson [2002] UK The ECtHR found home secretary tariff setting to be a breach of Art 6 and confirmed that decisions as to periods of detention should be made by judges rather than politicians.

A

Executive and Judiciary

ii) FUNCTIONS:

The historical role of the Home Secretary in relation to tariff-setting:

33
Q

Council of Civil Service Unions v Minister of State for the Civil Service [1985] AC 374
(the “GCHQ” case)

sets out test formulated by court as to which areas of power of the executive are justiciable.

A

iii) CONTROLS:

• Judicial Review of Executive Action

34
Q

Imports (perceived?) independence whilst recognising that the appointment of judges is still a central function of the State.

To remove a judge requires both houses of parliament, their salary is set by the executive.

Security of Tenure
Difficult to remove from office.

Security of Remuneration
£££!

A

Judicial Appointments

Judicial Appointments Commission

Also security of tenure and remuneration

35
Q

Note: The ‘historical’ role of the House of Lords as the highest domestic court in the land and the role of the new Supreme Court of the UK in remedying this overlap of personnel and function.

A

C) Legislature and Judiciary

i) PERSONNEL:

36
Q

Parliament is able to regulate itself, is it performing a judicia function on itself. This is limited, MP expenses scandal, claimed they shouldonly be accountable to parliament but some MPs were charged criminally and went to jail

Shaw: Do judiciary violate interpretation of statute by making up the law?

House of lords – upheld conviction of conspiracy to corrupt the public morals .

o No offence under common law or statute – conviction upheld.

House of lords ignored common law exemption from rape of wife stating it forms no part of English law at the time.

A

ii) FUNCTIONS:

• Parliamentary privilege

Shaw & dpp

R v R [1992]

37
Q

• Senior Court judges can be removed from office by an address of both Houses of Parliament to the Crown.

• The sub judice resolution.

A

The Human Rights Act 1998 (“HRA”)

iii) CONTROLS:

38
Q

Head of the executive, the legislature and the judiciary. Is the involvement of the Sovereign in all three branches a good thing, a bad thing or an irrelevance?

A

D) Judiciary, Executive and Legislature

• The Sovereign:

39
Q
  1. Head of the Judiciary
    The Lord Chancellor was head of the judiciary and able to sit as a judge. The Lord Chancellor was also President of the Supreme Court of England and Wales.
2. Cabinet Minister (Executive)
 He was (and still is) a Cabinet minister responsible for the administration of justice.

  1. Speaker of the House of Lords.
    The Lord Chancellor was also Speaker in the House of Lords.
A
  1. WHAT IMPACT HAVE RECENT CONSTITUTIONAL REFORMS HAD ON THE KEY FEATURES OF OUR CONSTITUTION?

• The Lord Chancellor – Until April 2006:

40
Q

President of Guernsey’s legislative body;

Senior judge of the Royal Court;

Senior member of the executive.

As a result, parliament realised they needed to reform the role of Lord Chancellor as it too would not be ompatible with Art 6

A

McGonnell v UK

Deputy Bailiff of Guernsey refused application and 2nd time and appealed to ECtHR on Art 6

41
Q

Created lord chief justice, took over many of the judil functions carried out by the old lord chancellor, the current one is lord Judge.

Lord Chancellor - No longer a speaker in the house of lords.

Lord Chancellor Continues to be be a government minister responsible for justice, courts system etc.

Independant supreme court that has take n over the functions of the ouse of lord. Has its own independant appointments system, staff and budget.

A

The Constitutional Reform Act 2005 (the “Act”)

  • Reform of the Office of the Lord Chancellor:
  • Supreme Court:
42
Q

Act provides for a legal duty on Government ministers to uphold the independence of the judiciary. They will not be allowed to influence judicial decisions through any special access to judges.

As we have already seen, the Act has created an independent Commission to recommend judicial appointments to the Secretary of State for Justice.

A
  • Judicial independence:
  • Judicial Appointments Commission
43
Q

British judges have long been regarded as a socially elite group, unrepresentative of the wider community. Will these recent reforms assist?

The Act of Settlement 1700 secures the independence of the judiciary by establishing the principle that senior judges (i.e. High Court judges and above) cannot be dismissed by the Executive except by an address to the Crown from both Houses of Parliament.

Judicial proceedings are privileged. The judge of a superior court is not liable for anything done or said in the exercise of judicial functions (Sirros v Moore [1975] 1QB 118).

A

What factors might affect the independence of the judiciary?

i) APPOINTMENT SYSTEM
ii) REMOVAL FROM OFFICE
iii) JUDICIAL IMMUNITY

44
Q

Judges are expected to remain politically impartial. All political ties must be severed on appointment to the bench. (Lord Irvine: “In exercising their powers of judicial review… judges should never give grounds for the public to believe that they intend to reverse government policies which they dislike”.)

R v Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet (No 2)Held: his interest meant that he was automatically disqualified from sitting on the appeal. The House of Lords did not even need to apply the test for bias. The decision made at appeal had therefore been improperly made and was overturned.

A

iv) POLITICAL TIES
v) FREEDOM FROM BIAS

45
Q

Those who claim that we do, lay emphasis on the recent reforms and the independence of the judiciary:

British Airways Board v Laker Airways Ltd [1984] QB 193 CA emphasised the importance of the judiciary and their detachment from political policy which was subject to change and nothing to do with thecourts.

“In many constitutions separation of powers has meant an unhampered executive. In England, it means little more than an independent judiciary.”

A

SUMMARY: TO WHAT EXTENT DO WE HAVE A FORMAL SEPARATION OF POWERS?

Sir John Donaldson:

Professor Wade:

46
Q

Three centres of power.

Separation to prevent abuse of power.

Checks & balances.

Reform and the independence of the judiciary in the UK.

A

Key themes:

Constitutional Law (4 decks)

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