The Separation of Powers
the House said that the executive must never be put in a position where it effectively decides a case in the sense that it could order a court to dismiss a case
Mathews v Ministry of Defence 2003
they provide that judges hold offices during good behaviour and cannot be removed from office without the permission of both the Houses of Parliament which takes for of a petition to the reigning monarch
the Act of Settlement 1700 and the Senior Courts Act 1982
the judges are legally appointed by the monarch on the advice of ministers
the appointment of judges
judges cannot be dismissed summarily by the executive
the dismissal of judges
Whips are MPs or Lords appointed by each party in Parliament to help organise their party's contribution to parliamentary business
Another major factor is the development of the whip system... what is it?
No as it made the government work even better
Did Walter Bagehot see this as a bad thing?
- aims to limit the power of the executive to control the legislature - s 2 under the act: not more than 95 holders of ministerial offices are entitled to sit and cote in the House of Commons at any one time - the result; as far as the separation of powers is concerned is that it is impossible for the House of Commons to be completely composed of members of executive
House of Commons (Disqualification) Act 1975
he points out that the role of the Parliament is to make laws. the role of the judiciary is to interpret them
Lord Diplock, in Duport Steels Ltd v Sirs (1980)
it explored the dangers of combining the legislative and executive branches of government
Lord Hailsham in the Dilemma of Democracy: Diagnoses and Prescription (1978) DO?
it give whips, party leaders, and the executive the power to control Parliament and surpass the debate and argument which once dominated the parliamentary scene
Lord Hailsham's opinion on the whips
used the separation of powers to say that the executive must never be able to order a court to dismiss a case. Decisions about people's civil rights should be made by the judicial branch of government
Lord Hoffman in Mathews v Ministry of Defence (2003)
said that 1) the role of the judiciary in relation to the executive was to verify that the powers asserted accord with the substantive law created by Parliament 2) to ensure that the manner in which they are exercised conforms to the standards of fairness which Parliament must have intended
Lord Mustill in R v Secretary of State for the Home Department es p Fire Brigades Union 1995
it is meant to act as a safeguard against arbitrary and discretionary power; prevent tyranny and protect individual liberty.
Purpose of the separation of powers
Lord Steyn restated the principle, linked to both the rule of law and the separation of powers; that a decision to punish an offender with a term of imprisonment should be made by the courts
R (on the application of Anderson) v Secretary of State for the Home Department 2003
is whether the effect of a legal provision is to give the executive a right to make decisions about people's rights which should be made by the judicial branch of government
THEN WTH MATTERS?
it is an advisory non-deparmental public body set up under the Civil Procedure Act 1997 to make rules for the Civil Division of the Court of Appeal, the High Court and the county courts
The Civil Procedure Rule Committee
- makes a number important adjustments to the legal system in order to create a greater separation between the judiciary, the legislature and the executive.
The Constitutional Reform Act 2005
is embodied in the government and the civil service, along with the related institutions e.g. the armed forces and police. It implements the law, and has day to day control of the state and its relations with other countries
The executive power
is embodied in the judiciary, who may be called to review the executive's actions, omissions and decisions to ensure that the law is respected at all levels of the state. FUNCTION: involves the interpretation and application of the law and also covers the resolution of disputes, provides remedies, and determines punishment when the law is breached. (THIS IS THE RULE OF LAW IN OPERATION)
The judicial power
1) R (on the application of Anderson) v Secretary of State for the Home Department 2003 2) Mathews v Ministry of Defence 2003
The judiciary and the executive: is the judiciary really independent? which 2 cases illustrates that an independent judiciary is essential to the separation of powers
is embodied in the legislature that enacts and reforms law. & in the UK, consists the monarch, the House of Lords and the House of Commons US - Congress (the legislature) has the power to scrutinise the operation go the president and the cabinet officers (the executive) on behalf of the people in the US two illustrations both rely on a system of checks and balances between the legislature and the executive within their constitutions
The legislative power
it does not mean judges are accountable to Parliament for their decision in particular cases
even though the decision and conduct of individual judges may be mentioned in either House of Parliament,......
the sub judice rule
The relationship between the courts and Parliament which rule prevents the discussion of ongoing cases in Parliament?
that there was a close union or fusion of the executive and legislative powers in the British system of government
The relationship between the executive and Parliament: checks and balances WHAT did Walter Bagehot say in The English Constitution 1876
Lord Mustill in R v Secretary of State for the Home Department ex p Fire Brigades Union (1995)
The relationship between the executive and the judiciary who was this explained fully by and in which case? Lord Mustill in R v Secretary of State for the Home Department ex p Fire Brigades Union (1995)
These writers (previously mentioned) assumed that the government can be broken down into legislative, executive/administrative and judicial functions and organs
What are the three powers and branches?
he called the British system of government an elective dictatorship
What did he call the British system?
1) House of Commons (Disqualification) Act 1975 2) The Constitutional Reform Act 2005
What do statutes say about the separation of powers in the United Kingdom? there is no statutory definition of the separation of powers in the UK Acts of Parliament never mention it explicitly HOWEVER statutes which impliedly support the separation of powers
a theory or doctrine that describes the way in which a state organises the distribution of power and function between its different branches
What is the separation of powers
in the written constitutions of other English speaking jurisdictions
Where can the practical usage of the separation of powers to prevent tyranny and preserve liberty be found?
John Locke (The Second treatise of Civil Government 1690) & developed further by Montesquieu in his book (De l'Esprit des Lois 1748)
Who was it first developed by?
1) the War Damage Act 1965 which followed by the decision of the House of Lords judgement in Burmah Oil Ltd v Lord Advocate 1965 2) the Terrorist Asset Freezing (Temporary Provisions) Act 2010 which was repealed by the Terrorist Asset Freezing Act 2010 was. passed following the decision of the UK Supreme Court in HM Treasury v Ahmed 2010 not to suspend orders to quash two Orders in Council because they were incompatible with United Nations Act 1946.
examples of this
R v Liyanage 1967, the Privy Council decided whether measures passed under the Criminal Law (Special Provisional Act), No 1 of 1962 by the Parliament of Ceylon (now Sri Lanka) were inconsistent with the written constitution of Ceylon
give an example (CASE)
the UK the government minister who are members of the executive are accountable to the courts and the parliament
give an example of this
by making each branch of government accountable to the other.
how does the system of checks and balances work?
1) the same persons should not form part of more than one of the organs government 2) one organ of government should not exercise the functions of another 3) each organ should act as a check against the others & should not be able to do this independently without any undue threat of preventative control/interference
the separation of powers means three things
Making sure the maximum number of their party members vote, and vote the way the party wants
what are one of their responsibilities?
1) the Act created a new appointments process for justices of the UK Supreme Court therefore new justices are selected by a selection commission; the president and deputy president of the Supreme Court, a member of the Judicial Appointments Commission of England and Wales. etc 2) the 2005 Act created Judicial Appointments Commission which selects new judges in the senior courts
what are the 2 important developments in the way the judges are appointed have separation of powers implications? this follows the Constitutional Reform Act 2005
they may legislate to reverse the effect of a decision or change the law as established/interpreted by a judicial decision
what can Parliament do?
1) that loss of individual liberty is inevitable where there is no separation of powers 2) The government could make tyrannical laws & would execute them in a tyrannical manner 3) that laws would be applied in a arbitrary way which undermines liberty if judges were also legislators and members of executive 4) they may also apply the law in a way which was violent or oppressive
what did Baron de Montesquieu say in De lEsprit des Lois (1748)?
defined tyranny as the exercise of wide discretionary and arbitrary power by those in government for their own private advantage
what did John Locke say in the Second Treatise of Civil Government 1690
Government and Parliament are still separate and independent entities that fulfil 2 distinct functions of leadership, direction and command as they started from separate historical origins and they each is perpetuated in accordance with its own methods and therefore has it's own continuity
what did LS Amery say?
he said that the role of the judiciary in relation to the executive was to verify that the powers asserted accord with the substantive law created by Parliament & it ensure that the manner in which they are exercised conforms with the standards and fairness which Parliament must have intended
what did Lord Mustill say?
Senior judges often refer to the separation of powers when deciding cases They do so when discussing the relationship between the organs and functions of government and the role of the judiciary
what did the judges say about the separations of powers in the UK?
they were designed to reinforce the independence of the judiciary
what do these measures do?
that the elective dictatorship is a fact and not just a lawyer's theory
what does Lord Hailsham's conclusion
provides that Lord Chancellor, other Ministers of Crown, and all those with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary
what does Section 3(1) Constitutional Reform Act 2005 say?
all effective powers are placed in the hands of the executive and checks and balances, which in practice have used to prevent abuse, HAVE NOW DISAPPEARED.
what does it mean?
that even though the relationship of the executive and the legislature is close, the undesirable consequences of a complete fusion are avoided by a system of checks and balances
what does this imply?
is whether the judiciary can be really independent if the judges are all appointed by the executive
what does this lead to question?
the role in the development and interpretation of the written constitutions of British Commonwealth countries
what has the separation of powers played a massive influential in
it uses a form of the separation of powers in order to prevent an individual or small group of people gaining absolute power
what is explicitly evident in the Constitution of the United States 1787
is that there has been a continuous enlargement of executive power and a corresponding decline of parliamentary influence
what is his basis of argument?
the issue is whether the executive could influence the development of civil procedure in its favour on the other hand, the committee is largely staffed by members of the judiciary and the legal profession, which alleviates the problem to a large extent
what is the issue that it is part of the executive which provides the executive with a role in development of civil procedure?
the Privy Council held that the Act was inconsistent with the constitution because the legislature had unlawfully exercised function which belonged to the judiciary
what was held in R v Liyanage 1967?