The Separation Of Powers

Front 1

What is the general idea of the separation of powers?

Back 1

To divide governmental power between the executive, the legislature and the judiciary. To prevent a concentration of powers, and thus the potential for abuse.

Front 2

What are the 3 requirements of the 'strict' separation of powers doctrine?

Back 2

1) The same people should not belong to more than one of the 3 main institutions of government.
2) One organ of government should not interfere with the work of another organ.
3) One organ of government should not be able to exercise the functions of the other.

Front 3

What are the criticisms of the strict separation theory?

Back 3

-It could be seen to be inadequate as it insulates each branch from challenge- there is a lack of political/legal accountability.

Front 4

What is the partial separation theory?

Back 4

-The essential aim is the avoidance of concentrations of power within the government.
-It is vital that there is a system of checks and balances in place to prevent any of the institutions from exercising excessive power.

Front 5

What does Lord Diplock state in Duport Steel v Sirs, about the separation of powers in the UK?

Back 5

"it cannot be too strongly emphasised that the British constitution...is firmly based on the separation of powers."

Front 6

What does Lord Mustill state in ex p fire brigades union, about the separation of powers in the UK?

Back 6

"parliament, the executive and the courts have each their distinct and largely exclusive domain"- not entirely exclusive, therefore not strict separation.

Front 7

What does O Hood Phillips say about the separation of powers?

Back 7

"Our institutions may recognise in a general way, 3 kinds of governmental powers, but no precise classification of their contents can be made."

Front 8

What does Walter Bageshot consider is the efficient secret of the UK constitution?

Back 8

"the close union, the nearly complete fusion, of the executive and legislative powers."

Front 9

What is the relationship between the 3 institutions?

Back 9

The executive is the majority party in the legislature, there is no separation of membership.
-There is an effective separation of judicial power from the other branches. Judges may not sit in the commons.

Front 10

What is the overlap between the executive and the legislature?

Back 10

-The executive is given the power to make legislation under 'delegated legislation- it gives ministers of government power to make rules in a particular area- not subject to full parliamentary procedure.

-Henry VIII clauses give ministers the power to use delegated legislation to repeal primary legislation- a power which usually only belongs to parliament.

Front 11

What is the overlap between the judiciary and the executive?

Back 11

-Under article 6(1) ECHR- everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal.
-Until recently, the Home Secretary enjoyed powers over the 'tariff element' of life sentences.

Front 12

What cases concerned the Home Secretary's power over the tariff element of life sentences?

Back 12

Ex parte Venables and Thompson- jeunvenile killers of Jamie Bulger first had to serve a tariff period and following this they had to be released unless they represented a danger to the public. The HS set a tariff of 15 years for each, which was arguably incompatible with the right to a fair and impartial hearing under art 6(1) ECHR.

-R (Anderson) v S of S for Home Dept.
The HS set a tariff of 20 years despite the trial judge recommending 15- this displays the discretion of the HS- not an independent/impartial tribunal.

Front 13

What is the overlap between the legislature and judiciary?

Back 13

-Judicial law-making? In R v R, the courts claimed that marital rape was illegal even though it wasn't in statute- retrospective law-making.

-Under s 3(1) HRA the courts must interpret legislation compatibly with convention rights as far as possible e.g. Ghaidan v Godin Mendoza- the courts can modify the meaning of legislation (although they must still say within the general meaning of what the legislature intended)

Front 14

What is the overlap regarding personnel?

Back 14

Queen- retains a constitutional role in all 3 aspects of government.

The Cabinet/PM/Parliament are all fused.

Historically the Lord Chancellor was a member of the executive and the legislature, and was able to sit as a judge. The law lords were also both legislators and judges- these problems, which violated s 6(1) ECHR were resolved under the Constitutional reform Act 2005.

Front 15

What case shows an example of an overlap of personnel?

Back 15

McGonnell v UK- the presiding judge was Bailiff of Guernsey, who had also presided over the Island's legislature- therefore there was a doubt about judicial impartiality.

Front 16

What checks and balances are present between parliament and executive?

Back 16

-government is accountable to parliament through debates, select committees etc.
-Parliament can demand resignation of government/ministers through a vote of no confidence.

Front 17

What checks and balance are present between the judiciary and executive?

Back 17

-Judicial review (procedural check)
-Through s 6(1) HRA it is unlawful for a public authority to act incompatible with convention rights (substantive check)

Front 18

What checks and balances are present between the judiciary and parliament?

Back 18

-The judiciary can declare statutes incompatible with the ECHR under a section 4(1) declaration of incompatibility (although it does not affect their validity)
-The judiciary has a limited power to 'dis-apply' statutory provisions which contravene EU law- e.g. Factortame.