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Separation Of Powers Notes

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Constitutional Law reading week 3 Separation of Powers Bradley and Ewing- chapter 5

Qualifications of the legislative function (i.e. parliament enacting law): Delegated legislation, EC law governing UK, executive plays decisive role in parl's decisions, courts modify laws by interpretation.

Executive function is implementing policy, giving direction to policy, maintaining public order + security, conducting external relations of state, promoting social + economic welfare. Many bodies execute executive functions: the civil service, police, army, devolved parliaments etc. NB the Council and the Commission of EU exercise executive function over UK

Judicial function: determining disputes of fact and law and is exercised by courts. Slight overlap with admin/exec function in that courts administer the wills of the deceased + make rules on court procedure. Judicial function on matters of EC law are governed by ECJ and ECFI, while under HRA 1998 UK courts have to "take account" of decisions made by EU courts

Originally all 3 branches of government were conducted by the king.

The separation of powers has a different meaning in different places. It can mean (1) that a person should not be part of more than one branch of government or (2) that one branch of government shouldn't control or interfere with another e.g. courts ruling on legislation, or (3) that each organ should have separate functions, e.g. no legislative powers for ministers

Legislature and Executive breach all 3 definitions: (1) ministers sit in parl, though civil service, police, army etc arte banned, while there is a limit on no. ministers. (2) HP has ultimate control over exec since no confidence motions can oust a whole gov or individual minister, while exec tends to control/ manipulate MPs to vote a certain way. (3)delegated legislation means ministers exercise legislature's functions

Judiciary-Executive relationship: (1) judges can't be ministers and, since changes to role of Lord Chancellor, ministers can't sit as judges- no overlap on definition one. (2) Judges aren't controlled by executive: there is statutory protection of lower judges against arbitrary dismissal, while Act of Settlement says judges cannot be removed except for bad behaviour, while custom, public opinion and professional opinion has kept the judiciary independent of exec. Judicial Review does allow judiciary some control over executive and ministers who refuse court orders are to be held in contempt of court and punished. (3) Exec

usurps judicial function for cases of certain tribunals e.g. for social security benefit (practicality) and for

Legislature-Judiciary overlap? (1) judges disqualified from sitting in HC while part 3 of Constitutional Reform Act provides that once the Supreme Court starts work there will no longer be an overlap caused by HL judges sitting in HL. (2) Resolution by both HC and HL, with royal assent, is only way of removing a judge sitting in a superior court and has only happened once since 1700 Act of Settlement. Judiciary have little control over parliament because of lack of potent judicial review and parliamentary supremacy, though courts do have declarations of incompatibility (not same as judicial review etc). Parl has power to tell courts which laws to apply e.g. European communities Act 1972 tells courts to apply EC legislation and disapply UK legislation when it cannot be interpreted within the meaning of EC law. (3) Courts can change law through supposed "interpretation", e.g. Caldwell, or may do so openly e.g. abolishing law that a man cannot be said to rape his wife. HL supposedly controls judiciary through appellate committee but de facto this is not the case

We basically have separation of functions: the business of legislative scrutiny and voting etc differs from the day-to-day functions of executive (e.g. administration), while the courts have their own function not usurped by parl or exec. The exception to this is delegated legislation which is merely a practical necessity.

Barendt, "Separation of Powers and Constitutional Government" [1995] Public Law 599

Separation of powers prevents tyranny: if one body or person has all three branches of government in his power then he can be tyrannical since there is no ability to oppose him. This especially so regarding courts: legislative or executive power over the courts could allow laws to be overlooked or applied selectively against certain individuals or groups of people.

Arguments against separation of powers: It is impossible to identify separate functions of 3 branches + it constrains legislative supremacy (e.g. separation principle would require judiciary to strike down a law retrospectively dealing with a certain event: role of the courts)

NB judicial review in France only undertaken by Constitutional Court before laws are promulgated and cannot strike down laws afterwards)

Barendt says that actually we can draw a line between executive, judicial and legislative functions but that if the separation of powers is going to be meaningful then the courts have to have the powers to determine where the principle has been breached AND the ability to resolve the breach. Most countries do distinguish various functions of separate institutions.

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