Separation of Powers
- Created by: Launston
- Created on: 11-05-14 13:25
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- Separation of Powers
- Practical Scenarios
- Politicians and murderers
- Criminal Justice Act gave home secretary power to decide tariff period
- Lawful as Parliament unambiguously gave the power
- Breaches right to fair trial - decision to punish an offender by ordering imprisonment may only be made by a court of law
- Lawful as Parliament unambiguously gave the power
- Criminal Justice Act gave home secretary power to decide tariff period
- Ultimate court of appeal as a parliamentary committee
- House of Lords voted and applied law in court
- Breached independence and impartiality of the judiciary
- House of Lords voted and applied law in court
- Civil servants imposing penalties
- House of Lords said it was unsatisfactory as sanctions should only be made by courts and right to travel is fundamental
- Unintended change in the constitution is occurring in which the executive is acquiring more powers to punish people
- House of Lords said it was unsatisfactory as sanctions should only be made by courts and right to travel is fundamental
- Politicians and murderers
- Legislative, Executive and Judicial Functions
- Institutional Form: functions exercised by different institutions
- Personnel Form: single person should not exercise more than one function
- UK does not adhere to this: ministers must be in Parliament
- Checks and balances so power is not concentrated
- Political constitutionalists downplay courts role and legal constitutionalists see courts as check on other institutions
- Personnel Form: single person should not exercise more than one function
- Point of separating powers
- Template for design of constitutional system
- Montesquieu: three types of power: enacting laws, makes peace or war, punishes criminals
- If powers are united in same person, there can be no liberty
- Montesquieu: three types of power: enacting laws, makes peace or war, punishes criminals
- Protect liberty from tyranny
- Barendt: criticises Jennings view that functions cannot be allocated
- Coherent to claim that decisions on personal rights and liberties are suitable for judicial resolution
- Primary purpose is prevention of the arbitrary government which may arise from the concentration of power
- Administrative agencies perform two functions but this does not mean separation of powers is hopeless
- Primary purpose is prevention of the arbitrary government which may arise from the concentration of power
- Coherent to claim that decisions on personal rights and liberties are suitable for judicial resolution
- Barendt: criticises Jennings view that functions cannot be allocated
- Ensure efficiency
- Barber: manner in which goals in society should be strived for
- Consider interconnected structural factors that affect the competency of institutions in the performance of their tasks
- Barber: manner in which goals in society should be strived for
- Template for design of constitutional system
- Institutional Form: functions exercised by different institutions
- Crown vs Parliament
- Tripartite division does not reflect historial development - English Civil War
- Parliamentary Supremacy - Acts represent crown and parliament assenting
- Ministers are accountable to parliament
- M v Home Office - difficult to subject crown to rule of law
- Ministers are accountable to parliament
- Parliamentary Supremacy - Acts represent crown and parliament assenting
- Courts are dependent upon the crown
- Remains subservient
- Independence of the judiciary
- Difficult to remove senior judge from office, JAC works at arms length from ministers, statutory duties
- Royal heraldic symbol and judicial oath in court
- Difficult to remove senior judge from office, JAC works at arms length from ministers, statutory duties
- Independence of the judiciary
- Remains subservient
- Tripartite division does not reflect historial development - English Civil War
- Judicial analysis of separation of powers
- Fire Brigades Union
- Minister did not bring into force provisions to compensate victims of violent crime
- Courts role to see that laws are obeyed and interpret them
- They should not be going too far and trying to run the country
- Courts role to see that laws are obeyed and interpret them
- Minister did not bring into force provisions to compensate victims of violent crime
- A v Secretary of State for the Home Department
- Detention of foreign nationals suspected of terrorism
- 'Emergency threatening the life of the nation would allow derogation from convention
- Political question - less scope for judges
- 'Emergency threatening the life of the nation would allow derogation from convention
- Detention of foreign nationals suspected of terrorism
- Special Immigration Appeals Commission
- Legality of decisions of SIAC being reviewed - belief that superior courts of record were exempt from judicial review
- It should be for the judges to decide whether the statutory provisions for the administration of justice protect the rule of law
- SIAC is amenable to review
- It should be for the judges to decide whether the statutory provisions for the administration of justice protect the rule of law
- Legality of decisions of SIAC being reviewed - belief that superior courts of record were exempt from judicial review
- Fire Brigades Union
- Interactions between Parliament, the Executive and Judges
- MPs cannot be full time judges but they can be part time or magistrates
- Jackson case showed accumulation of functions for judges - breached impartiality
- Judges cannot participate directly in the legislative process but they may have an interest in commenting on proposals
- Parliamentary privilege - courts will not let government working be evidence for party - else free speech could be breached
- Exception - Pepper v Hart - provision ambiguous and minister clear - gives effect to intention of Parliament
- Sub judice rule - MPs should not bring up pending cases - may prevent fair trial
- No separation between executive and legislature - ministers dominate work of Parliament especially in legislative process
- Legal constraints on executive - cap on number of ministers
- Practical Scenarios
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