WK 3 - Separation of Powers

Question 1

Name the three branches

Answer 1

(1) Legislative
(2) Executive
(3) Judiciary

Question 2

What are the ‘great pillars of Western political thought’?

Answer 2

(1) Separation of powers
(2) Representative government

Question 3

Role of three branches (overall)

Answer 3

Three branches, distinct from each other in powers they exercise, central to the doctrine

Question 4

Give a typical example of separation of powers

Answer 4

USA:-

Article I - Legislative Power: Congress
Article II: Executive Power: President
Article III: Judicial Power: Courts

Question 5

Why is a separation of powers necessary?

Answer 5

Montesquieu (1784): When power is limited to one person, there is no liberty. When powers are shared between branches, no liberty.

James Madison (1788): ‘one person (or branch) holding all powers is ‘the very definition of tyranny’

Lord Action (1887): ‘power tends to corrupt and absolute power corrupts absolutely’

Question 6

Has a separation of powers always been relevant in the UK?

Answer 6

Not until more recently

Question 7

Explain the function of the legislative branch

Answer 7

• Westminster and devolved legislatures possess law-making authority
• But not all new laws created by these (e.g., delegated legislation)

Question 8

Explain the function of the executive

Answer 8

• Broad authority to govern
• Historic break from ministers and public authorities - the UK Central Government and devolved governments

Question 9

Explain the function of the judiciary

Answer 9

• Resolves disputes in private and public law
• Exercised in civil + criminal courts, and in tribunals

Question 10

Is there a visible distinction between Parliament and Government?

Answer 10

Although the three branches exist separately, often not.

Not as clear cut as, e.g., USA

Question 11

Explain Fire Brigades Union (1995)

Answer 11

• Home Secretary refused to bring in scheme to compensate victims of crime (Criminal Justice Act 1988, s 171 (1)) - tantamount to repealing Act
• Can a Minister repeal an Act of Parliament this way?
• Should courts intervene in the matter?
• Majority 3-2 of HoL held that Home Secretary exceeded his power
• Majority: Court can intervene to prevent executive usurpation of legislative function
• Dissenting: Courts should not intervene, it is a matter of Parliament and executive

This displays how views can reasonably differ over how the proper separation of powers should be balanced.

Question 12

Why is judicial independence so important?

Answer 12

Requires strong separation between courts and other branches.

Question 13

Constitutional Reform Act 2005

Answer 13

• Put the rule of law and judicial independence on statutory footing
• Significant move towards a more defined separation of powers in the UK

Question 14

What did the Constitutional Reform Act 2005 lead to?

Answer 14

Led to:
* Alterations to Lord Chancellor’s position
* New Judicial Appointments Commission
* Elimination of Law Lords -> new Supreme Court