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SEPARATION OF POWERS - Coggle Diagram
SEPARATION OF POWERS
CLASSICAL DEFINITION
The idea of separation of powers is that the difference functions of the state should be performed by different bodies within the state so as to prevent abuse of powers.
The executive function => Initiate policies policies and implement legislation/to conduct national affairs = THE EXECUTIVE
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The legislative function => Make laws, determining the powers of authorities and regulating the conduct of citizens = THE LEGISLATURE
AUTHORS AND DOCTRINES
Lord Acton : “power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men”
1887
Montesquieu , The Spirit of the laws 1748
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Meaning of separation
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Although a power should be able to exercise some kind of control over another power (checks and balances).
There as should be a kind of protection against undue interferences from one power to another power’s function.
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EXECUTIVE AND JUDICIARY
OVERLAP IN PERSONNEL ?
Judicial functions must be performed by independent Impartial courts => there should be no overlap between executive and judicial functions => breach of art. 6 ECHR
The stafford vs UK (2002) and R Anderson vs secretary of State for home department (2002) => the role of the home secretary was removed => the tariff is decided by the sentencing jufge now.
A kind of overlap in function through the involvement of judges in public inquiries or
royal commissions which are lunched by the Executive on certain controversial or sensitive subjects
Executive is involved in the appointment of judges: the Queen formally appoints them on the advice of the
PM.
The role of the executive in the appointment process of senior judges has been limited by the constitutional
reform Act 2005 which has been amended by the Crime and Courts Act 2013.
Since the Constitutionnal reform Act 2005 => judicial appointement are still formally made by the Queen on the advice of the Executive but on the recommendation of selection commissions which are mainly composed of judges
Independence of judiciairy => ministers must refrain from criticsing judges and judgements in general => but too common that ministers criticize judicial rulings
One of the functions of the Judiciary is to control the legality of the actions of the Executive. Under the Rule of Law,
it’s fundamental for an independence Judiciary.
Despite this caution, thanks to HRA => control by the courts on the administrative action has increased because the manner in which the decisions are reviewed on the basis of the HRA
is not the same as it is done on the basis of the CL or other statute law.When there is an issue of HR, the control of
the courts is more sophisticated and intrusive; this is a certain revolution in the judicial review.