Separation of Powers

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  • Created by: Nikki
  • Created on: 29-04-15 23:29

Origins

Mixed government -->

  • major interests in society must jointly take part in functions of government
  • power shared between different groups (e.g. Lords and Commons)

Locke

  • legislative as supreme power with all others subordinate
  • executive = supreme executor of law
  • doesn't exclude possibility that powers can be exercised by same body or person
  • judicial power not mentioned (consiered as general attribute of state)

Montesquieu

  • key to political liberty in ENG lies in separation of legislative, exec and judicial power
  • error --> worked not because of separation but because entire govt was in hands of landed class

Blackstone --> each part is a check/balance on the others 

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Purpose/justification

3 branches

  • legislative (rule-making)
  • executive (rule-applying)
  • judiciary (rule-interpretation)

Behind the concept is proposition that there are different kinds of public function that:

  • ought to be distinguished from each other
  • ought either to be exercised by different institutions or personnel, or somehow 'balanced' to prevent an overconcentration ofpower in hands of single person/institution

Objective of each branch as check on others to ensure no single group of people can control machinery of State

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What separation?

Agencies

  • each branch of government must be confined to exercise of its own function
  • each branch must not be allowed to encroach upon the functions of the other branches

Persons

  • persons who compose these three agencies of government must be kept separate and distinct 
  • no individual is allowed to be at he same time a member of more than one branch
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Contemporary issues/changes

The 'Balanced Constitution' --> mixed constitution changes to this --> system of checks and balances which presupposes a degree of separation

Bagehot, The English Constitution (1867) --> 2 obsolete doctrines dominate Englihs constitutional through --> mixed govt and separation of powers

Erosion of balances 

  • royal suspending or dispensing power abrogated by Glorious Revolution
  • loss of monarchical power of veto
  • rise of democracy
  • HL veto lost (Parliament Acts)
  • 'elective dictatorship'?

Contemporary issues

  • Is separation of powers now the only basis of constitutional government?
  • Committee on Ministers' Powers (1929) --> merely a rule of political wisdom
  • HRA --> ECHR Art 6 --> trial must be by an independent and impartial tribunal --> judiciary?
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Constitutional Reform Act 2005

Lord Chancellor

  • exec, legis, and jud functions
  • Head of LC Dept, Speaker of HL, head of judiciary

CRA 2005

  • no long head of judiciary and cannot sit as judge
  • priniple role now = head of Ministry of Justice

Judicial Appointments Commission (independent of govt)

Established Supreme Court

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Interactions between branches (1)

Can members of Parliament be judges?

  • MPs and peery not eligible to serve as full-time members of judiciary or vice versa
  • no prohibition on MPs or peers holding part-time judicial appointments
  • in E&W several MPs sit as magistrates

Can judges participate in legislative process?

  • until 2009, senior judges conferred with peerage entitled to sit and vote during HL leg work
  • example of difficulties = vote on Hunting Act then unable to sit in Jackson case
  • transfer of HL judicial business to UKSC and consequential statutory disqualification of judges of SC from participating in work of Parliament ended this
  • judges do still have an interest in leg and from tim eto time do make suggestions for reform 
  • formal role in making delegated leg about court procedures (SC)

Statutory duty of ministers to uphold independence of judiciary and role of LC (minister) in defending that independence

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Interactions between branches (2)

Can MPs discuss judges and judgments?

  • sub judice rule --> MPs should not bring up in debates, question or motions cases that are pending or being heard in court
  • MPs expected to be careful in any criticisms they make of judges/judgments
  • not to say MPs can't inquire into how courts interpret and apply leg
  • parliamentary investigations into how courts are handling legislation may become more frequent in future as procedures for post-legislative scrutiny are put in place

What is the role of executive in Parliament?

  • no separation between legislature and executive --> ministers required to be MPs
  • justified as enabling Parliament to hold ministers to account
  • danger that MPs who are ministers dominate work of Parliament --> especially so in relation to legislative process
  • role of UK Parliament = largely reactive --> role to scrutinise and approve proposals from government
  • some limited legal constrains on exec --> cap on total number of MPs who are ministers; certain groups disqualified from being MPs; except for ministers general prohibition on MP 'holding an office or place of profit under the Crown 
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