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Separation Of Powers Notes
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Con & Ad : Separation of Powers (SoP) The Theory
3 branches: Judiciary; Executive; Legislature.
Constitutional theorists argue: for a constitution to be 'efficient' and 'well arranged', the three branches should be separated into different bodies/persons.
The theory is to create a system of checks and balances.
But in UK, the exec and legislature are fused.
Why do we need separation of powers?
o Lord Acton: 'Power tends to corrupt, and absolute power corrupts absolutely'.
Political theory o Aristotle, The Politics: 'There are three elements in each constitution . . . if these are well arranged, the constitution is bound to be well arranged'. o Montesquieu, C18, De Esprit des Lois: 'When the legislative and executive powers are united in the same person or . . . body . . . there can be no liberty . . . again, there is no liberty if the power of judging is not separated from the legislative and the executive . . . ' o Montesquieu heavily influenced by Aristotle. Montesquieu influenced the Declaration of Rights of Man. o Declaration of the Rights of Man (1789): 'any society in which . . . the SOP is not observed has no constitution'. o Strict model of SOP: total separation? See Munro: 'Studies in Constitutional Law'.
Pollard: there is no absolute formal separation of organs.
Barnett: the SoP, together with the rule of law, 'runs like a thread through the constitution of the UK'.
Professor Colin Munro: 'On the one side, there is distinguished judicial support for the view that our constitution is "firmly based" on the separation of powers. On the other hand, there is the weight of academic judgment...predominantly to the opposite effect'.
General consensus that we should seek to achieve SOP. So UK has a problem.
The US model
Montesquieu and others inspired the drafters of the US Constitution. Relatively strict SoP—no office holder could legally be allowed to wield power belonging to another branch of state. o Article I, section 1: Legislative Power in Congress.
o Article I, section 6: no Senator or representative should be appointed to any cvil office under the authority of the US, and vice versa. o Article II, section 1: exec power in President. o Article III, section 1: judiciary in Supreme Court. o Separation of personnel, Art I, section 6.
Also strict SoP in German Constitution, Article 20(2): All state authority shall emenate from the people. It shall be exercised by the people through elections and voting and by specific organs of the legislature, the executive power and the judiciary' (Basic Law for the Federal Republic of Germany).
So US and German Constitutions create hard divisions between the institutions, powers and personnel of the three branches. In the UK, softer lines.
'Checks and Balances' o Is 'pure' SOP desirable?
o USA: mutual checks: presidential veto of legislation. Congressional scrutiny of presidential appointees. SoP in the UK
Traditional model is overlap, in terms of personnel and functions of the 3 branches:
At centre of the diagram is the monarch. Fusion in parliamentary systems: o Academic writers, eg Bagehot, The English Constitution 1867, identify the overlap as being a result of the British constitution being a parliamentary, as opposed to presidential, system. In a parliamentary system, the legislature selects the political part of the executive branch, which is then ultimately dependent on the legislature for its position and power. o Hence parliamentary systems often seen to create a fusion of powers rather than a SoP.
This model is now outdated since the Supreme Court replaced the House of Lords in 2009, establishing judicial independence. So now, it's more like:
You cannot separate these: you have to be in one to be in the other. Barendt (1995 Public Law 615): o 'There is no effective separation of power between the legislature and executive in the UK in the system of checks and balances'. Walter Bagehot (1865): he says that this diagram is the 'efficient secret of the English constitution may be described as the close union, the nearly complete fusion, of the executive and legislative powers'. [[So fusion of exec and leg = the 'efficient secret' of the constitution]]. We vote for parliament; it forms a government; this bounces bills back to parliament, which is likely to pass them, since the gov has been formed out of the biggest party. This is 'efficient', CF USA where much harder to pass bills through Congress. Commentators warning of the political dangers of such fusion: particularly given the strong degree of control exercised by the political parties over their MPs, through whipping—and the general tendency since 1945 for governing parties to enjoy significant parliamentary majorities in a 'FPTP' electoral system. Lord Hailsham, 'elective dictatorship' (1976 lecture): Lord Chancellor (1970-74 and 1979-87) described the British set up of the executive in parliament as an 'elective dictatorship', to describe executive dominance over the legislature. The ppl in gov come from the party with the most numbers in Parliament. So when the gov says to Parliament "here's a bill", it's very likely that it will pass. This particularly applies in early years of a government. o What does 'elective dictatorship' mean? Refesr to personnel overlap between Exec and Leg, which means that parliament is dominated by the gov of the day. To mitigate this, there is a limit of 95 ministers allowed to sit in HofC.
Law-making (both Exec and Judiciary have important law-making powers, despite the Parliament being the primary law-making entity). 3
Both the EXEC and the JUDICIARY can plan important roles in law-making.
Executive-Legislature relationship/overlap: who has law-
'Elective dictatorship', Lord Hailsham (1976): executive dominance over legislature, personnel overlap between Exec and Leg which means Parliament is dominated by the gov of the day.
95 ministers rule: HC Disqualification Act 1995.
Exec law-making, delegated legislation: Primary law-making entity is Parliament; in the UK, the executive also has extensive lawmaking powers through the operation of delegated legislation.
Prerogative powers: plus the Exec can take action and establish policy through the use of prerogative powers.
'Secondary'/delegated legislation: o generally takes takes form of statutory instruments (S.I.s), which provided only limited opportunity for scrutiny by Parliament.
'Henry VIII' clauses: most controversial form of executive-framed legislation. These clauses, contained in some Acts of Parliament, authorise the exec to make secondary legislation that can amend or repeal provisions in the primary legislation without further parliamentary scrutiny.
Concern about trend towards more secondary legislation: o HL Constitutional Select Committee, report 'Delegated Legislation and Parliament: A response to the Strathclyde Review' (March 2016)—concern about secondary legislation. o Lord Judge, April 2016 lecture, Ceding Power to the Executive; the Resurrection of Henry VIII: Lord Judge former Lord Chief Justice. This expressed considerable concern about the trend towards more secondary legislation.
Plus, many Acts commence life as a government-sponsored Bill
Causes for concern?
o Yes-parallel membership. You're in government and parliament. o Up to 95 ministers (from Parliament) can sit in government, that's a big chunk of Parliament. And they're all bound by collective ministerial responsibility. o + PPSs. o The 'payroll vote'.
Delegated legislation: S.I.'s 'made' by ministers.
And do we have a true bicameral system?
o Parliament Acts—Commons has power over Lords.
Barendt (1995 Public Law 615): 'There is no effective separation of power between the legislature and executive in the UK in the system of checks and balances . . . Except on rare occasions
when there is significant party split, the government effectively controls the legislature'. Judicial criticism of exec intruding on legislative [[see more below, in judiciary section]]: o Re De Keyser's Royal Hotel Ltd : Lord Dunedin, ' . . . the Crown is a party to every Act of Parliament . . . .[if Parliament legislates to put certain conditions on the prerogative, then] the Crown assents to that, and by that Act, to the prerogative being curtailed'. So essentially: if Parliament legislates to put certain conditions on the prerogative, then the prerogative is curtailed. o R v Home Secretary, ex parte Fire Brigades Union
: It is for Parliament, not the executive, to repeal legislation . . . overriding powers of the democratically elected legislature . . . '
Parliamentary checks on Executive
Parliamentary majority? This can be very small. Thus some legislation may not pass, may need to link up with other parties. So smaller majority = less the 'elective dictatorship' comes into play.
HC Disqualification Act 1975: o Prohibits certain people from becoming MPs: such as judges and civil servants. o Section 2, limits the number of government officials in the Commons to 95 at any one time.
o Debates o PM Question Time o Select Committees o Ministerial Responsibility
Judicial support for idea of SoP: Lord Diplock, in Duport Stels v Sirs (1980): 'It cannot be too strongly emphasised that the British Constitution, though largely unwritten, is firmly based on the separation of powers; Parliament makes the laws, the judiciary interpret them'. Here we have a Judge making a clear statement on separation of powers. o Duport Steel v Sirs: HL ruled that CA had exceeded its remit. Both Lord Diplock and Lord Scarman gave judgements reinforcing the SoP. Scarman: 'the judge's duty . . . to interpret and to apply the law, not to change it . . . '.
The Exec has extensive law-making powers (see above, delegated legislation + prerogative powers). And the courts also play a role in law-making through development of the (1) common law and (2) interpretation of statute. 5
Statute superior to common law (ultimate check on judiciary) o So if Judge makes a precedent which is too radical, Parliament can step out and wipe out the common law judgement with statute. o Eg Burmah Oil v Lord Advocate. British troops retreating through Burma destroyed oil refineries belonging to Burmah Oil. Burmah Oil sued the British gov for damages. Government said it was wartime, prerogative. The court said to the British gov that you owe compensation. o Parliament overrode this with the War Damages Act 1965: this retrospectively stopped the compensations. Remarkable case.
But this is rare—judges can often make
Constitutionally controversial: o Judges are unelected; parliament is elected. o Why should judge get in what of Parliament? Judges going up against Parliament can be controversial. o Eg Jobseekers (Back to Work Schemes) Act 2013 - see the Reilly litigation. People were forced back into work, Reilly brought an act that the schemes were not described clearly enough, and she won the case. o So judges can't overturn acts; but they can get very creative, and get very close to overruling Parliament. o If judges do go too far, Parliament can step in with statute, superior to common law. Constitutional role of courts? - courts cannot strike down primary legislation.
We don't have a constitutional Supreme Court like USA—UK Supreme Court cannot strike down primary legislation like US Supreme Court.
So courts cannot strike down/judicially review primary legislation—but courts can: (1) interpret statutory legislation; (2) Develop Common Law
1. Statutory interpretation
Parliamentary sovereignty—they cannot overturn an act of Parliament. But can creatively interpret.
Purposive interpretation: Purposive approach popular at the moment.
HRA 1998 increased courts powers of interpretation:
S 3: requires courts to interpret legislation so that compatible with articles of European Convention HR. Includes past and future legislation. Has led to courts using wide forms of interpretation.
S4: allows courts to make declaration of incompatibility.
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