Con & Ad - Separation of Powers (Manifestation in UK…
Con & Ad - Separation of Powers
Manifestation in UK
Executive/legislature - fusion of Government and Parliament
Barendt - "There is no effective separation of power between the legislature and executive in the UK in the system of checks and balances"
Lord Hailsham - "elective dictatorship"
Bagehot - "the efficient secret" of the consitution
Parliamentary system - legislature selects political part of executive branch - one dependent on other
Parliamentary checks on executive
HC Disqualification Act 1975
(PM) Question Times
Constitutional Reform Act 2005
s3 judicial independence
Lord Chancellor's role - post McGonnell v UK
Judicial Appointments Commission
Supreme Court (2009)
Lord Diplock in Duport Steels v Sirs (1980) - "It cannot be too strongly emphasised that the British Constitution, though largely unwritten, is firmly based on the separation of powers; Parliament makes the law, the judiciary interpret them"
Statute superior to common law
War Damages Act (1965) - reaction to Burmah Oil v Lord Advocate
Acting as ultimate check on judiciary
Parliament is elected body
Undermining legal certainty/ROL
Jobseekers (Back to Work Schemes) Act 2013 - Reilly litigation
Constitutional role of courts
Purposive approach - s3 HRA
Intrerpretation of law in EU context
Magor & St Mellons v Newport Corporation (1950) - "filling in the gaps"
Judicial "law making"
Common Law development
More activist in...
Areas of court competence
Areas with developed CL rules
R v R (1991) - marital rape defence removed
Gillick v W Norfolk HA (1985)
Airedale NHS Trust v Bland (1993)
Shaw v DPP
Refusal to create law
Malone v MPC (1979)
R (Nicklinson) v Ministry of Justice (2014)
More deferential in...
Areas where Parliament is more appropriate forum
Areas of political competence aka political, ethical, socio-economic, resources, intelligence and security info
Act of Settlement 1701
Tenure "during good behaviour"
Immunity from suit
Sirros v Moore (1974)
Common law grounds of challenge
M V Home Office
Human Rights Act 1998
s6 public authorities - must act compatibly with ECHR
Lord Neuberger in R (Evans) v Attorney-General (2015) - "subject to being overruled by a higher court or statute, it is a basic principle that a decision of the court is binding as between the parties, and cannot be ignored or set aside by anyone, including (indeed it may fairly be said, leadt of all) the executive."
Lord Acton - "Power tends to corrupt, and absolute power corrupts absolutely"
Montesquieu - "When the legislative and esecutive powers are united in the same person or body, there can be no liberty"
Declaration of the Rights of Man (1789) - influenced by Aristotle
"Any society in which the SOP of powers is not observed has no constitution"
USA - separation of legislative (Congress), Exectuive (President) and Judiciary (Supreme Court)
Mutual checks - Presidential veto of legislation and congressional scrutiny of presidential appointees
Germany - "all state authority shall emanate from the people"
For constitution to be efficient, well arranged and ethical, must be separation between three branches or organs of the state
Pros and cons