Separation of Powers

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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
      • Ultimate court of appeal as a parliamentary committee
        • House of Lords voted and applied law in court
          • Breached independence and impartiality of the judiciary
      • 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
    • 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
      • 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
        • 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
        • 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
    • 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
      • 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
    • 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
      • 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
      • 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
    • 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


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