BCL Law Notes Constitutional Theory Notes
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...
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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
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
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
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
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
Defensive mechanisms — Checking & balancing of one branch by another — each branch has mechanisms to ensure...
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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...
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