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Parliamentary Sovereignty and The Separation of Powers - Coggle Diagram
Parliamentary Sovereignty and The Separation of Powers
Function of Parliament
The Houses of Commons
Prime Minister
PM
chairs the cabinet:
The group of senior ministers in
charge of government departments
, who have overall responsibility for the organisation of the government (the executive)
UK has a
parliamentary form of government
Pm and his or her ministers are both MPs and government ministers.
Can be changes to a PM other than a general election
Incumbent resigns
New PM will be elected by members of their political party
Will select other
government ministers
MPs
Represent a 'constituency'.
Represent people's interests in parliament.
Time divided between the HOC and their constituency.
Local people at weekly surgeries can talk to MPs regarding concerns
Members of a
political party
( Conservatives, Labour, Lib dem )
Constituencies (representing a political party of the local area) are said to
have seats in parliament
.
The HOC
Made up of MPs (elected in general election)
Fixed Term Parliaments Act of 2011
General elections tend to be held on the first Thursday in May at five year intervals
Alternate ways a general election to be triggered
Vote of no confidence (2/3 majority of the 650 seats in HOC)
10 political parties represented (Sept 2019)
KEY FUNCTION:
Hold the government to account
Wednesday 'Prime Ministers' Questions' take place
PM will field questions from MPS on current political issues.
Power of the HOL
The Upper House but
does NOT have power than THOC
THOC is democratically elected, and it the focus of power and authority in the UK.
THOC alone is responsible for making decisions on public finances.
Acts as
an important check on the exercise of government power.
However
Lords can consider but not block or amend any financial legislation
Can scrutinise and make amendments to legislation approved by the HOC
The House of Lords
Non elected body, consisting of 775 peers.
Peer
Someone with a high-ranking inherited nobile titled
Someone made to be a peer
Granted
by the sovereign
Number are members of political parties
Number of 'crossbench' peers who are not party political
Hereditary peerages
Pass down through families
The House of Lords Act 1999
reduced the number of hereditary peers who may sit in House to 91
Life Peerages
Granted on the advice of the PM
Parliament
is the
supreme legislative
(law-making) body of the UK, consisting of two houses under (and within) the power of the King.
What do they do?
Most (not all) legislation will begin with a proposal by the executive (government).
Key functions:
Debate and scrutinise legislation
Propose amendments of legislation
Extract information from the executive and hold it to account (policies and acts)
Scrutinise public expenditure and taxation
Parliamentary Committees
Made up of MPs and/ or members of the HOL with the purpose to
scrutinise the work of the government and examine proposal
Select committees
Permanent committees to investigate the work of individual government departments or broader policy areas
Public bill committees
Appointed to debate and amend proposals for new legislation
Dicey and Parliamentary Sovereignty
Components of Dicey's theory
Three key elements can be isolated
Parliament is the supreme law making body
No Parliament can be bound by a predecessor or bind a successor.
No person or body may question to validity of an enactment of Parliament
Number 2: No entrenchment
Implied repeal
Concept that parliament cannot bind a predecessor/ bind a successor
In the absence of express repeal, a new act is partially or wholly inconsistent act then the
previous is to be repealed.
Parliament would not intend two incompatible statues to be given effect at the same time, instead grant effect to the later.
Effect of implied repeal
A reflection of the traditional view that sovereignty takes a continuing form, and that
each new parliament should have equal freedom of operation in creating new legislation.
Vauxhall Estates and Ellen Street Estates
*
Courts denied the application of an earlier act despite the provision for it prevail over other statues, as parliament (under parliamentary sov) is not able to bind its successors.
Express repeal
Legislation is passed that expressly states an intention that an earlier act should be replaced (simplify previous legislation)
Communications Act 1985
, replaced by the
Regulation of Investigatory Powers Act 2000
NO Parliament may be bound by a predecessor or bind a successor
:
Uk's constitution does not possess any formal arrangements to entrench its constitution.
UK's constitution can potentially be drastically changed by a single AOP through new law or repealing the old.
Number 3: Validity of Acts of Parliament
An AOP are the highest form of law
Neither the manner in legislation is passed, nro the substance of law can be reviewed by the courts.
UK Courts ARE NOT ABLE to 'quash' or invalidate primary legislation, even if deemed unconstitutional or contrary to international law (theory Number 1)
Diceyan theory does
not allow for judicial review or any alleged procedural irregularity i
n the way that a statute had gone through Parliament
Number 1: Supreme Law making body
Parliament
can pass legislation that affects or alters part of the constitution.
No substantive restrictions for Parliament
Parliament can legislate,
contrary to fundamental rights
Consequences but it can do so, if there is a majority to pass legislation. However HRA 1998 had effect
Can legislate contrary to international law
Pass legislation that has
retrospective effect
, even though it is not seen as desirable in rule of law terms
No substantive limitations that Parliament may enact (legal limitations)
Following the Glorious Revolution of 1688, Parliament became the sovereign legislative authority in the country.
Professor A.V. Dicey Stated
:
'Parliament under the English constitution has the right to unmake or make and law, and no body as the right to override of set aside the legislation of Parliament
Parliamentary sovereignty and the character of the constitution
Diceyan concept can be seen as a primary element in f
orging the traditional character of the UK constitution
Supreme authority of the statute and the impossibility of entrenchment of constitutional basics' means that the
UK has a potentially flexible constitution
Political character of the UK constitution in which p
olitical 'drivers' of change tend to be more significant
than fundamental constitutional rules
Enrolled Bill Rule
When a bill becomes an
Act of Parliament
, it is impossible to challenge that legally
Any departure from normal procedure during the passage of the bill cannot be corrected by the courts.
Edinburg and Dalkeith Railway V Wauchope (1842)
Pickin V British Railways Board (1974)
Lord Morris
'there is finality unless and until it is amended or repealed by parliament'
Theory of the Separation of Powers
SOP in the UK constitution
Application of the theory has unveiled overlaps in the government
Significantly: Most government ministers (executive) are also MPs in THOC
Constitutional Reform Act (CRA) 2005
Before:
Notetable overlaps in the UK's separation of powers model
Highest Appeal Court was a part of the House of Lords
Combined role of the Lord Chancellor of the head of the judiciary, government minister, and speaker of the HOL
HOL judicial function was
transferred to the Supreme Court in 2009
Lord Chancellor now has no judicial role, only political as an MP and senior minister in the Ministry of Justice.
UK constitution is uncodified and has evolved over centuries.
SOP in practice
Is a Theory/Ideal
Varies between different states and political cultures
Degree to which the
theory should be implemented
Practical Question:
Whether of not government actions have gone beyond their proper power.
How far
does the legitimacy of
courts interfering
with the
decisions of the executive
when adjudicating challenges relating to the
matters of public law can go.
Including through judicial review
Issues applied/ considered through the
principle of law
Judicial independence
Act of Settlement 1701
Judiciary is independent from the crown/ executive
Judges cannot be removed during 'good behaviour', can only be dismissed if they were corrupt or acted unlawfully .
Led to a number of
independent spirited judgments.
Entick V Carrington
Established the fundamental constitutional rule that the state cannot authorise power unless expressly authorised by the law
CRA 2005 and the establishment of the Supreme Court outside the Houses of Parliament further
enhanced the constitutional status of the courts
Despite the fusion between the executive (the government) and the legislature the indepence of the judiciary demonstrates the Model of SOP
R (Evans) V Attorney General
Refusal for disclosure under the
Freedom of Information Act 2000
as the government departments consider themselves exempt from disclosure under the FIOA .
Eventually the Supreme Court considered the AG (a government minister) conduct to contradict the principle that the
courts could not be ignored (the upper tribunal) or set aside by anyone, including the executive.
Courts have acknowledged their role to interpret statute, but also their role to have a
important role in developing common law principles
Montesquieu
Liberty would be best protected in a state, if the
Separation of Powers was filtered
into judicial executive and legislative
French Philosopher in the 18th Century who gave further modern expression to the Theory of Aristotle
The concentration of all types of state power into the same hands can lead to oppressive and inefficient government
Theorist argued for an efficient and well-arranged constitution
Three branches of the states
(the judiciary, executive and legislature) should be
separated into different bodies or persons.
Theory has deep roots back to Aristotle.
Devolution
Trasnfer or delegation of power to a lower level
1998:
UK has carried out the policy of devolution in comparison to the other countries federal state
Not the same ad Federalism as Westminster retains ultimate power over the devolved governments
Scotland Act 1998
Devolved arrangement has given smaller countries of the UK greater control of their own administration and policy development.