This website uses cookies to ensure you get the best experience on our website. Learn more

BCL Law Notes Constitutional Theory Notes

Separation Of Powers Notes

Updated Separation Of Powers Notes

Constitutional Theory Notes

Constitutional Theory

Approximately 192 pages

A collection of the best BCL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of BCL notes available in the UK this year. This collection of notes is fully updated for recent exams, also making them...

The following is a more accessible plain text extract of the PDF sample above, taken from our Constitutional Theory Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

3. The Separation of Powers

  • Legislative – law-making functions

    • Budgetary matters

    • Impeachment = oversight of executive

    • Passing of resolutions to express views, contributing to public policy

  • Judiciary – application & interpretation

    • Making procedural rules – practice directions, etc

  • Executive – investigation, enforcement

    • Foreign policy

    • Delegated legislation

Problems

  • Carolan

    • Inoperable in practice — lines are blurred / arbitrary

    • Allocation of functions to institutions is circular — functions justified by procedures; procedures developed to suit functions

      • BUT nothing circular about incremental development & separation — spiral rather than circle

M Vile — Elements of the doctrine

  • Division of agencies into legislature, executive & judiciary

  • Assertion that all government acts have a legislative, executive or judicial character

  • Separation of persons conducting those functions

    • Most dramatic characteristic of pure doctrine

    • Facilitates check & balances

History

  • Need not necessarily be between functions — can be between interests, powers or levels of authority

    • EG Aristotle & historically in England — monarchical, oligarchical & democratic — King, Lords and Commons

    • Locke did not address separation of executive from judiciary — believed J to be subject to E <> Montesquieu

  • Deterioration of doctrine in mid-20th century

    • But avoidance of tyranny necessarily involves control of behavior, which necessary entails different bodies

    • Blurring of the lines – quasi-judicial bodies; delegated legislation; administrative rule-making; administrative justice

    • Military, social, economic needs of modern societies requires more centralization of power in Executives?

    • No problem of absolute monarchs – rather, sincere politicians trying to solve problems? Assumes parliamentary sovereignty is a solution to all problems?

    • Negative concern for liberty – restraining governments prevents it from acting to preserve social & economic life – comes at cost of certain freedoms

Source of public authority — Principle of Institutional Settlement — Hart & Sacks

  • Procedural arrangements for how law is to be made must be institutionalised

  • Decisions which are the duly arrived at result of duly established procedures of this kind ought to be accepted as binding upon the whole society unless and until they are duly changed

    • EG forbids courts from substituting opinion for that of the legislature

  • Does not apply in respect of all decisions — only decisions of a “common concern”

    • IE where it is better (however defined — in absolute terms, utilitarian terms, etc), that a collective decision be reached than each individual follow his own belief

  • Basis for distribution of authority between officials — B should yield to A’s direction to a citizen

    • Cannot be in cases where A’s direction will be better — because B will always believe that his direction is better — nature of authority is that B should yield despite belief that he knows better

    • Public authority is sui generis — established for resolution of questions of common concern — IE more important to get a resolution than to get the right answer

Nature of Separation

Meanings of “separation” — thin to thick

  1. Differentiation of concepts — legislative, executive & judicial functions

  • And if same person in same office exercises those functions, they should do so in a way that is conceptually distinct — ie make laws first, then apply them

  • Functions rather than interests — cf King, Lords & Commons — eg Ashby v White, often framed as dispute between legislature & judiciary on justiciability of elections, was actually dispute between Lords & Commons

  • Functions could conceivably be split further — Ackerman

    • Montesquieu — legislative power = lawmaking, enactment & abrogation; subject matter | executive = domestic & international | judicial function = facts (juries) & law (judges)

    • EG Judiciary in France — effectively split into civil, constitutional, administrative

  1. Separation of offices — each office must exercise only one of those types of powers

  • EG legislature, cabinet & judiciary

  • CF rule-making & adjudicative functions held by executive

  • <> Boilermakers (invalidity of Cth Court of Conciliation & Arbitration — essentially executive court) — prevented judicial power being conferred on non-judicial bodies; Chu Kheng Lim — certain functions exclusively judicial; but has been watered down considerably eg Magaming

  • <> Montesquieu — as Claus points out, Montesquieu failed to appreciate that separating the nature of powers was insufficient

  1. Separation of persons — an official can only occupy one of those offices

  • CF House of Lords until 19th c, some American States NY, Conct, had members of upper house sitting in highest court; Ministers in Westminster System; early US Chief Justices as persona designata ambassadors; in Australia as well (Deane to Japan)

  • Claus — UK problem — Ministers & Courts (under Judicature Acts) both exercise powers delegated from parliament — both exercise rule-making powers — Ministers sit in parliament, so why should judges not?

    • Especially given judges not given task of policing limits of legislative power

  1. Isolation, immunity or independence of offices — persons in those offices (whether separation of persons or not) cannot be influenced, dismissed or interfered with by another

  • Entry-level independence — nomination by AG <> Germany, nomination by supermajority, giving minority parties effective veto; 12 year tenure without possibility of reappointment

    • Makes more bipartisan exercise

  • judicial independence simpliciter (capacity to hold office & exercise powers cannot be interfered with — eg tenure), or also

  • functional judicial independence (scope of powers cannot be interfered with — eg S10, Anisminic, France

  1. Defensive mechanisms — Checking & balancing of one branch by another — each branch has mechanisms to ensure...

Buy the full version of these notes or essay plans and more in our Constitutional Theory Notes.