Term
| At a basic level, what does Separation of Powers require? |
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Definition
| Power should be separated between different people / bodies |
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Term
| Lord Acton - famous quote |
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Definition
| Absolute power corrupts absolutely |
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Term
| Separation of power concerns seperation between which bodies? |
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Definition
i) The Legislature
ii) The Executive
iii) The Judiciary |
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Term
| What does the effect of our uncodified constitution have on the Separation of Powers in the UK? |
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Definition
| Because we do not have a single codified constitution, we don't have a theoretical separation of powers (as we can't just look at a document and see 'he does this' 'he can't do this'). Instead, if we do have a Separation of Powers, it would be 'real' - and it is to be determined by real proceedings (e.g. what happens in practice? Is there a separation of powers? - look at legislation, customs, conventions, case law etc...) |
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Term
| Do we have a 'created' or 'evolved' separation of powers? (If we have one at all?) |
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Definition
| We have an evolved separation of powers. As we have no single condified constitution in which it was created. Instead, it is to be gleaned from what 'history' tells us (e.g. legislation, case law, etc...) |
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Term
| How can 'The Prime Minister' be used to show what we have no separation of powers? |
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Definition
Overlap:
i) Head of State
ii) Part of the executive
iii) Part of the legislature |
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Term
| How can 'The Queen' be used to show that we have no separation of powers? |
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Definition
Overlap:
i) Head of State
ii) Appoints judges (technically)
iii) Appoints ministers (technically) |
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Term
| How can 'The Cabinet' be used to show that we have no separation of powers? |
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Definition
Overlap:
i) Part of the executive
ii) Part of the legislature
(In the UK, you cannot put someone in the Executive if they are not already part of the legislature) |
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Term
| How can 'The Judiciary' be used to show that we have no separation of powers? |
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Definition
Overlap:
i)(Until very recently = HoL = think of all the case law) |
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Term
| How can 'Ministers' be used to show that there is no separation of powers? |
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Definition
| i) Party whip - Government is drawn from majority party, government formulates the law (Executive), Party whip = MPs follow what party says, Legislature = predominantly from the same party as the executive. |
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Term
| What is Lord Halisham's 'Elective Dictatorship'? |
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Definition
It refers to the overlap between MPs and the Executive. Essentially, whichever party has HoC majority = elective dictatorship, as MPs = controlled by the party whip to agree to whatever the Exective puts forward.
Votes of no Confidence = RARE |
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Term
| Law Making, Policy Making and Decision Making. Discuss w.r.t SoP |
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Definition
Govt = prime law maker
Judges = prime decision maker
HOWEVER, all three bodies do all three.
Govt makes policy, Judges make policy (e.g. floodgates), Ministers make policy
Decision making - Judges make decisions, Ministers make decsions, Govt makes decisions... |
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Term
| Which cases can be used to show that the UK has SoP? |
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Definition
McGonnell v UK
Shaw v DPP
Gillick v West Norfolk HA
Airedale NHS Trust v Bland
R v R
Burmah Oil v Lord Advocate |
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Term
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Definition
A CASE WITH MODEST BEGINNINGS, WHICH ENDED UP WITH STRASBOURG TELLING THE SUPREME COURT THAT IT HAD TO GET OUT OF THE HOL.
C sought planning permission for a flower shed (In Geurnsey)
DENIED
C appealed - however, appeal was sent to the same person who denied the initial request
The same man also wrote the law
C argued that it wasn't fair
Case went to Strasbourg
HELD - it wasn't fair to have one person as the law-maker, the decision maker and the appeal hearer.
In this case, the court also ruled that UK judges are too close to the legislature and held that the Supreme Court had to exit the HoL |
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Term
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Definition
JUDGES SHOULD NOT MAKE LAW
C created a prostitute's directory
C asked police if it would be illegal to make the directory - they said no, as there wasn't any legislation
However, after producing the directory, he was arrested and convicted of 'Conspiracy to debase public morals'
HOWEVER, this was a random 300 year old precedent
APPEAL HELD - the judge had created a law to prosecute the C under. The judge couldn't do that. C's conviction was overturned. |
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Term
| How can Shaw v DPP be used to show that the UK has SoP? |
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Definition
| CASE RULED THAT JUDGES CANNOT MAKE LAW |
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Term
| How can McGonnell v UK be used to show that UK has SoP? |
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Definition
| Strasbourg ruled that the rule-maker, the rule-enforcer and the decision-maker have to be seperate people/bodies. Brought about the decision to seperate out the Supreme Court and the HoL. |
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Term
| Gillick v West Norfolk HA |
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Definition
JUDGES CANNOT MAKE LAW
C = Catholic who was opposed to contraception
C found out that her health authority were giving contraception to U16s
C brought a case arguing that parents should be told if their children are given contraception
First hearing = NO, no law that says HA must inform parents
CA = created law that HA MUST inform the parents
HoL = reversed the CA ruling - JUDGES CANNOT MAKE LAW |
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Term
| Which cases can be used to show that judge's cannot make law / courts resistence to judicial law-making? |
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Definition
Shaw v DPP
Gillick v West Norfolk HA
Malone v MPC [1979]
Rossminster [1980] |
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Term
| Airedale NHS Trust v Bland |
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Definition
EXAMPLE OF JUDGES MAKING LAW - HOWEVER, ARGUABLY, IN THIS CASE, IT WAS NECESSARY FOR THEM TO MAKE LAW.
D = on life support following Hillsborough disaster.
Judges had to decide whether or not life support should be turned off.
No legislation to turn to
Judges developed own test for determining when a life support machine should be turned off |
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Term
| How can Airedale NHS Trust v Bland, Gillick v West Norfolk HA, RvR, and Shaw v DPP, be discussed together? |
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Definition
| Both Gillick and Shaw concern cases in which judges created/made law, and higher courts overturned their rulings and stated that judges cannot make law. However, in Bland and RvR, the court made law, and arguably in this instance, it was necessary and good. Issue over Good judicial law making vs bad judicial law making. |
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Term
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Definition
EXAMPLE OF JUDICIAL LAW MAKING
Court overruled law that wife belonged to her husband
Arguably = good law |
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Term
| Burmah Oil v Lord Advocate |
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Definition
PARLIAMENT INTRODUCING RETROSPECTIVE LEGISLATION TO OVERRULE A COURT'S JUDGEMENT
C sued the UK govt for compensation for damage to their property by British Soldiers during WWII
HELD - Burmah Oil were due compensation
HOWEVER - legislature then passed The War Damages Act, which nulled the court's decision |
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Term
| What do RvR and Bland show us? |
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Definition
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Term
| Why might 'judges making law' NOT negate SoP? |
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Definition
i) Judicial law making as a 'check' on the legislature - rather than simply law making.
ii) Appeals system = a 'check' on judicial law making
iii) Parliamentary sovereignty, if Parliament do not like a judicial ruling, they can introduce legislation which overrules it. Therefore, arguably, parliament remains the ultimate law maker. |
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Term
| One of the arguments as to why judicial law making DOES NOT negate SoP is that, as Parliament is soveriegn, if they don't like judicial laws, they can simply introduce legislation to overrule them. Which case is an example of this happening? |
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Definition
| Burmah Oil v Lord Advocate |
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Term
| How can 'Common Law' exist in a system which has SoP? |
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Definition
| Common law is created within limitations. If the 'superior' law-makers don't like the common law, they can legislate to eradicate it. |
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Term
| De Smith on SoP in the UK |
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Definition
| 'No writer of repute would claim that Seperation of Powers is a central feature of the modern British Constitution. |
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Term
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Definition
There is no effective SoP between the Legislature and the Executive in the UK (Elective Dictatorship)
However, there is an effective separation of judicial power from the other branches. |
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Term
| What does the C&A lecturer argue w.r.t the seperation of power in the UK? |
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Definition
Executive and Legislature = some overlap & some separation
But the judiciary are becoming more and more separate. |
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Term
| How does the 'HC (Disqualification Act) 1975' help the SoP in the UK? |
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Definition
If I was Prime Minister, I would make all my MPs a member of the government, so that they would all be bound by 'Collective Ministerial Responsibility', and subsequently they wouldn't be allowed to speak out against me.
However, this act prevents Prime Ministers from doing that - therefore, legislature remains separate from the executive. |
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Term
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Definition
Allows Judges to make a declaration of incompatibility against any legislation which breaches the ECHR. After which, the legislature must amend it, to make it ECHR compliant.
(= a way in which judges can 'disagree' with law, but doesn't allow them to become law makers) |
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Term
| Why are 'checks and balances' important for the SoP? |
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Definition
Two ways:
i) Purpose of SoP is to stop unfettered power, therefore, introduction of checks and balances stops unfettered power
ii) Checks & Balances provide a legitimate way for different bodies to intervene with the activities of another body |
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Term
| W.r.t the 6 developments which have been made w.r.t increasing judicial independence, what does the C&A lecturer argue? |
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Definition
That the developments simply represent a formalisation of what the judges were already adhering to. C&A lecturer argues that from looking at the case law etc. you can see that the judiciary already adhered to the principles.
The judiciary have always seent hemselves as being on the outside... |
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Term
| What is the 'most ouvert' checking mechanism that the UK has? |
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Definition
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Term
| According to Professor Munro, the SoP can mean one of three ideas. What are they? |
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Definition
i) No person or body should form more than one part of the three organs of government
ii) One organ of government should not exercise the functions of either of the other two organs
iii) One organ of government should not interfere with or exercise control over the functions of the other two organs. |
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Term
| In the UK, which is the main body responsible for law making? |
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Definition
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Term
| In what ways does the executive have extensive law making powers? |
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Definition
i) Elective dictatorship
ii) Delegated legislation
iii) Prerogative powers |
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Term
| In what way does the 'House of Commons Disqualification Act 1975' enforce the SoP in the UK? |
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Definition
| It operates to prevent judges and senior civil servants from becoming MPs |
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Term
| Why is an independent judiciary vital to the SoP? |
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Definition
| As, if it were not independent, the executive or legislature would be able to manipulate the outcome of cases. |
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Term
| Why is s3 Constitutional Reform Act 2005 significant to SoP? |
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Definition
| According to s3, the Executive has an obligation to uphold judicial independence. Ministers are specifically barred from trying to influence judicial decsions through any special access to judges |
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Term
| Why are, 's11 Senior Courts Act 1981' and 's33 Constitutional Reform Act 2005' - significant to the SoP? |
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Definition
Both protect the tenure of judges.
Both state that judges hold office during good behavious and may only be dismissed by the monrach following an address presented to her form both houses. THEREFORE, JUDGES DON'T HAVE TO KISS POLITICIAN'S ARSES
SCA = Crown Court, High Court & CA. CRA = Supreme Court. |
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Term
| 's11 Senior Courts Act 1981' and 's33 Constitutional Reform Act 2005' - SIGNIFICANCE? |
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Definition
| JUDGES DON'T HAVE TO KISS POLITICIAN'S ARSES - THEY RETAIN THEIR POSITION THROUGH GOOD BEHAVIOUR (THEREFORE, DEPOLITICISES JUDICIAL DECISION MAKING) |
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Term
| Why is the case of Sirros v Moore [1975] significant to SoP? |
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Definition
| Provides judicial immunity - EVEN IF A JUDGE ACTS MALICIOUSLY, SO LONG AS HE REASONABLY BELIEVES THAT HE IS ACTING WITH HIS JURISDICTION, HE CANNOT BE SUED FOR HIS ACTIONS IN COURT. |
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Term
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Definition
| EVEN IF A JUDGE ACTS MALICIOUSLY, SO LONG AS HE REASONABLY BELIEVES THAT HE IS ACTING WITH HIS JURISDICTION, HE CANNOT BE SUED FOR HIS ACTIONS IN COURT. |
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Term
| How does judicial immunity (the rule that they cannot be sued for their actions in court) help the SoP? |
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Definition
| If a judge could be prosecuted for his actions in court, the legislature/executive could introduce laws which mould/constrict/control the decisions judges make |
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Term
| How do 'Open courts' protect the SoP? |
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Definition
| So that people can see what is going on, and we can check that the judges are not working in cahoots with the executive or the legislature. |
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Term
| What are three conventions/customs which protect judicial independence? |
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Definition
i) Judges must be apolitical
ii) Members of the cabinet should not criticise judges
iii) Courts lack jurisdiction to inquire into proceedings in Parliament |
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Term
| Why is 's6 Constitutional Reform Act 2005' significant to SoP? |
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Definition
| It provided for the setting-up of an independent Judicial Appointments Commission |
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Term
| Why is 's63 Constitutional Reform Act 2005' significant to SoP? |
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Definition
| Becuase it states that judicial appointments will solely be based on merit and good character |
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Term
| Why is 's7 Constitutional Reform Act 2005' significant to SoP? |
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Definition
| The head of the judiciary is no longer the Lord Chancellor (Head of HoL), instead it is the Lord Chief Justice (a dude who doesn't come from Parliament) |
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Term
| s63 Constitutional Reform Act 2005 |
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Definition
| judicial appointments will solely be based on merit and good character |
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Term
| s6 Constitutional Reform Act 2005 |
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Definition
| provided for the setting-up of an independent Judicial Appointments Commission |
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Term
| s7 Constitutional Reform Act 2005 |
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Definition
| The head of the judiciary is no longer the Lord Chancellor (Head of HoL), instead it is the Lord Chief Justice (a dude who doesn't come from Parliament) |
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Term
| The Lord Chief Justice replaced... |
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Definition
| Lord Chancellor as head of the Supreme Court |
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Term
| In an exam question, which act is of VITAL importance to judicial independence? |
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Definition
| Constitutional Reform Act 2005 |
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Term
| Which cases are examples of the courts finding that the executive is in breach of the SoP? |
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Definition
i) Fire Brigades Union [1995]
ii) M v Home Office [1992]
iii) GCHQ [1985] |
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Term
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Definition
COURTS REFUSED TO DO JUDICIAL LAW-MAKING
C's phone was tapped by the police
C argued that this violated his right to privacy
HELD - the court refused to find a right to privacy in English Law and stated that in a matter as complex as telephone tapping it was for parliament, and not the courts, to intervene |
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Term
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Definition
COURTS REFUSAL TO DO JUDICIAL LAW MAKING
CA (Denning) in judgement focused on upholding the Rule of Law. However, on appeal, the Supreme Court held that they could not interefere with the will of parliament, and so overturned Denning's judgement. |
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Term
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Definition
| HOME SECRETARY IGNORED A COURT ORDER BECAUSE HE THOUGHT IT WAS WRONGLY MADE. THE COURT MADE IT CLEAR THAT THIS WAS IN BREACH OF THE DOCTRINE OF SEPARATION OF POWERS |
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Term
| Fire Brigades Union [1995] |
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Definition
| COURT RULED THAT THE HOME SECRETARY'S USE OF PREROGATIVE POWER TO INTRODUCE A CRIMINAL INJURIES COMPENSATION SCHEME AT VARIANCE WITH AN UNIMPLEMENTED STATUTORY PROVISION WAS INCONSISTENT WITH THE WILL OF PARLIAMENT |
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Term
| GCHQ [1985] - on Judiciary upholding SoP |
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Definition
| JUDICIAL REVIEW CASE - RECOGNISED THAT IN DETERMINING WHETHER A CASE COULD BE SUBJECT TO JR, THE SOURCE OF THE POWERS DIDN'T MATTER E.G. PRIME MINISTER'S ACTION CAN BE JR'd |
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Term
| Duport Steel v Sirs [1980] |
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Definition
| JUDGE SAID - 'IT CANNOT BE TOO STRONGLY EMPHASISED THAT THE BRITISH CONSTITUTION THOUGH LARGELY UNWRITTEN, IS FIRMLY BASED ON THE SEPARATION OF POWERS' |
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Term
| What effect does the Attorney General have on the SoP? |
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Definition
| The AG sits in the Cabinet as the chief legal adviser to the government. However, the AG also has a role in deciding whether to bring a prosecution in individual cases. Concerns have been widely expressed that a conflict of interest could arise between the inherent political allegiance of any holder and the wider constitutional obligation to give independent, impartial legal advice (AG = MP appointed by PM) |
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Term
| Can the AG be part of the Cabinet? |
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Definition
| NO - a convention says that he cannot. However, AG can sit in on Cabinet meetings, though this is discouraged. |
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Term
| What has been introduced in order to try to overcome the SoP problems associated with the AG? |
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Definition
White paper 'Governance in Britain 2008' - Yet to be implemented.
One of the reforms will = curtailment of the AG's powers to direct individual prosecutions |
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Term
| Lord Irvine on the SoP in the UK... |
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Definition
| 'The UK's approach to SoP is essentially pragmatis... it is not set in tablets of stone... It is perceived as an ideal which must be pursued in a manner appropriate to contemporary circumstances. As political, legal and social conditions evolve over time so too conceptions change of what the respective institutions of government should do, and of the powers which each should exercise over the others. It is this flexible pragmatic approach - which is the fruit of the unwritten constitution - that is central to the typolgy of constitutional development in the UK.' |
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Term
| In enforcing the law, how does the judiciary uphold the SoP? |
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Definition
| The judiciary, through performing its constitutional function of enforcing the law (as made by Parliament), keeps the executive within the bounds fo its lawful authority and so upholds the law as made and sanctioned by Parliament. |
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