Separation of Powers

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  • Created on: 29-04-16 12:01

Montesquieu Separation of Powers

What are the three branches of power?
Legislative power: that of enacting laws
Executive power: executing the public resolutions
Judicial power: trying the causes of individuals 

What is the legislature responsible for?
Legislature makes the laws,

What is the judiciary responsible for? 
Judiciary settles disputes and imposes sanctions for breaking the law. 

What is the executive responsible for?
The executive carries out the everyday tasks of government which can be anything given to it my the lawmaker. The executive implements the law and commands the resources of the state. 

What was Montesquieu's main aim?
To protect liberty

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Montesquieu continued

What did he believe to be the result of unchecked power? 
Power must be checked by power - if any of two of the three functions fall into the same hands the outcome is likely to be tyranny. 

What did he favour as the executive?
A monarchy 

What responsibility should the executive have? 
The executive should summon the legislature as and when it is needed. 

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Different kinds of separation of powers

Functional Separation - Where one branch carries out activities that strictly belong to another

Separation of Personnel - Where the same individual is a member of more than one branch

Checks and balances - Requires each branch to have some control over one or more of the others to ensure that they don't abuse their powers.

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The Mixed Constitution

What did Aristotle believe? 
Based on Aristotles three forms of government. He believed that any single form of government was unstable, leading to a permanent cycle of disasters.

What did Aristotle favour?
He favoured a blend of democracy and aristocracy: aristocracy to provide stability and wise leadership, democracy to provide consent. 

How is this reflected in the English legislature?
English legislatue - House of Lords being aristocratic. Aristocratic and elected elements would have to agree to make changes in the law. 

What was Montesquieu's standing?
Montesqueiu believed that an aristocracy based on inheritance produced an independent, educated and leisured class who would protect freedom and curb the democratic element, while other elements of the constitution could prevent the aristocracy from using their powers selfishly. 

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Judicial Independence

What does article 6 of the ECHR state?
Art. 6 of the European Convention on Human Rights requires a 'fair and public hearing... by an independent and impartial tribunal established by law'. 

Art. 6 does not require a formal separtion of powers but requires that in the particular circumstances the court is not only independent but also appears to be so. 

What does Judicial Independence require?

Judicial independence requires that the judges in individual cases be protected from pressures that threaten their impartiality. 

A vital safeguard in the criminal process is that juries should not be vetted by the executive and cannot be required to give reasons for their verdicts or punished for giving or failing to give a verdict. 

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Accountability of the Judiciary

The judiciary should be legally and politcally accountable only to the sovereign Parliament in relation for example to expenditure or the general pattern of activity. 

Collective accountibility to the public depends on the media and public having access to info regarding the judiciary. (E.g Supreme Court making its premises accessible to visitors)

Individual accountibility - a decision maker must explain/justify their actions. May be corrected/penalised if their actions fall short of required standards. 

Judges are politically accountable to the public - judges often participate in public debate concerning general legal matters but avoid entering unto matters involving competing party politics 

Accountability of judges to Parliament is limited in the interests of the separation of powers. Cases in progress shouldn't be discussed except in relation to matters of national importance/conduct of ministers. Judge's personal character or competence shouldn't be criticised

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Separation of Function

Jennings - there is not important difference between the three functions, the executive/judiciary being essentially a more detailed kind of lawmaking. 

However - 

Legislature has no powers of enforecment, its work is finished once it has enacted a law and delivered it to the world. 

The executive has the forces of the state under its control and in that it must be proactive in indentifying tasks and taking action, 

The judiciary is distinct in that it is passive and can only decide particular cases brought to it by others and requires the cooperation of the executive to use state force.

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Separation - Parliament/Executive

Parliament has no executive functions but the executive is involved in lawmaking. 

The executive is responsible in practice for most legislative proposals so that Parliament's separate function lies in it having the last word to bring a law into effect. 

Delegated legislation is made directly by ministers and other executive bodies under powers conferred by statute. 

Criticised for the infringement of the separation of powers. It can be made without the public and democratic processes represented albeit imperfectly, by Parliament

Most delegated legislation is subject to a limited amount of parliamentary scrutiny by means of being laid before the House, although this is usually nominal. 

The validity of DL can be challenged by the courts

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Separation: Parliament/Judiciary

Judges are also lawmakers and their function is not confined to interpreting laws made by others

Judges' duty to follow precedent so as to limit the possibility of making up new law according to a judge's personal preferences. 

Judges make their law only in the context of the particular case before them and must avoid changing the law in matters of large social significance.

A court must give way to Parliament 

A court cannot usually investigate parliamentary proceedings or challenge statements made in Parliament. 

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Separation: Executive/Judiciary

By Judicial Review the courts can review executive action and have the last word as to what a law means. 

The Attorney General has conflcting functions, he is a member of the government and of Parliament and the government's chief legal adviser. He plays a part in decisions to prosecute and is responsible for bringing legal actions against public bodies on behalf of public interest. 

Judges have no duty to advise the executive. Judges are sometimes appointed to carry out investigations or inquiries into allegations against government. 

Magistate's clerks are members of the civil service and as such part of the executive. However, they have certain judicial functions and all advise magistrates on the law. 

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Separation: Parliament/Judiciary

Judges are also lawmakers and their function is not confined to interpreting laws made by others

Judges' duty to follow precedent so as to limit the possibility of making up new law according to a judge's personal preferences. 

Judges make their law only in the context of the particular case before them and must avoid changing the law in matters of large social significance.

A court must give way to Parliament 

A court cannot usually investigate parliamentary proceedings or challenge statements made in Parliament. 

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Checks/Balances (Parliament/Executive)

  • Legislature is protected against the executive under statute and convention. Legislature can remove the executive but under the Fixed Term Parliaments Act 2011 the executive can no longer remove the legislature
  • Parliament votes funds to the executive to enable the government to carry on 
  • The executive must resign if it loses the support of the HoC
  • Individual ministers must appear before Parliament and explain the conduct of their departments. 
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Checks/Balances (Parliament/Judiciary)

Courts check parliament as they have the power to interpret statutes independently. Once a statute is enacted, Parliament loses direct control over it and it moves to the domain of the courts. 

The intentions of the democratic branch must be respected but the court is concerned to uphold the rule of law. 

Judges must observe the separation of powers by sticking to the language of the legislation even at the expense of their own views of justice or policy. 

Courts must seek the intention of parliament. The intention of parliament is assumed to be indentified by the objective language of the statute.

The courts can take account of the purpose behind the statute in order to help them interpret it. 

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