Separation Of Powers

Front 1

Montesquieu identified 3 organs of state

Back 1

1. The Legislature
2. The Executive
3. The Judiciary

Front 2

Airedale NHS Trust

Back 2

• The HoL agreed that 'in this case' the doctors to cease treatment so Mr Bland dies.
  
• The Law Lords believe that this case raises a 'wholly new moral and social issues' which should be decided by the Parliament.
  

Front 3

GCHQ Case

Back 3

• An example where power of judiciary to check the executive's exercise of Royal Prerogative is justiciable.

Front 4

Ex p Fire Brigade Union

Back 4

The courts ensure that powers lawfully exercised by those to whom they are entrusted.

Front 5

R v A (No. 2) (Complainant's Sexual History)

Back 5

D argued that if he will not be allowed to present evidence of the his past sexual relationship with complainant (as this is against s.41 of the Youth Justice Criminal Evidence Act) will violate his Art 6 ECHR (right of fair trial)

Front 6

Shaw v DPP

Back 6

Man was charged of "conspiracy to corrupt public morals". An example of judge-made law - by reviving an old law and effectively created new offence not considered by the Parliament.

Front 7

R v R

Back 7

The court effectively changed the law by ruling that a word in the statute was essentially meaningless. This case shows that the UK constitution is flexible, as judiciary can interpret and modify criminal law.

Front 8

McGonnel v UK

Back 8

The judge who heard his appeal was a member of Guernsey's executive and legislative which undermined the impartiality when determining his appeal.

Compare: Nemo Judex in Causa Sia

Dimes v Grand Canal

Front 9

Ghaidan v Godin Mendoza

Back 9

The court held that Sch 1 para 2 of the Rent Act violated Art 8 and 14 ECHR. There was no justification about heterosexual and same-sex partnership and therefore should be interpreted under s.3 of the HRA that the Rent Act should be interpreted in accordance with ECHR.

An example of "judge-made" law arguably contrary to the strict theory of separation of powers.

Front 10

Burma Oil v Lord Advocate

Back 10

Parliament nullified the judicial decision by passing War Damage Act 1965

Front 11

A and Others v SSHD

Back 11

HoL made a declaration of incompatibility under s.4 of the HRA that s.23 of the Anti-Terrorism, Crime and Security Act is not compatible with Art 5 and 14 of the ECHR.

Front 12

M v Home Office

Back 12

The executive acting in official capacity was held into account. He was held in contempt of court when he ignored court order.

Front 13

Duport Steel Ltd v Sirs

Back 13

Lord Diplock said: "British constitution is based on the separation of powers in that Parliament makes law and the judiciary interprets them".

Front 14

ex Fire Brigade Union

Back 14

The Minister refused to exercise power under S.171 Criminal Justice Act 1988 to enforce a scheme (written elsewhere in the Act) to compensate victims of crime. He indicated that he had no intention to enforce the scheme which tantamount to repealing the statute. The question being raised were: was the Minister allowed to repeal the Act of Parliament, in which under the doctrine of separation of powers is that only Parliament can do so, and if so, can the courts intervene? The judiciary decided that the minister failed to exercise his power and acted unlawfully by not enforcing the statute.

Front 15

ex p Fire Brigade Union

Back 15

Lord Mustill said : "The Parliament, the executive and the courts have their distinct and largely exclusive domain".

Front 16

M v Home Office

Back 16

Lord Templeman said: "Parliament makes law, executives carries the laws into effect and judiciary enforces them".

Front 17

Prohibitions del Roy

Back 17

Previous, all judicial power is exercised in the name of the monarch, but Lord Coke held that the King could not determine legal disputes in person, by himself. This case reinforced the separation of powers between the executive and the courts.

Front 18

Section 4 HRA 1998

Back 18

Enabled judiciary for "declaration of incompatibility" - of Parliamentary legislation which is inconsistent with the Convention rights.

Front 19

Constitutional Reform Act 2005

Back 19

Imposes a duty on government ministers to uphold independence of the judiciary.

Front 20

Anderson v SSHD

Back 20

Lord Steyn: "Separation of powers of judiciary and the legislative and executive is a strong principle of our system of government".

Front 21

Bagehot

Back 21

"fusionof powers" is the "efficient secret" of the UK constitution.

Front 22

Barendt

Back 22

though judiciary is separated from executive and legislative, but executive and legislative overlap in many ways"

Front 23

Montesquieu

Back 23

"noliberty if power is held by executive and legislative. No power if judging isnot separated from legislative and executive".

Front 24

Munro

Back 24

believes that: "not only branches of government must be separated but also personnel and functions."

Front 25

Hailsham

Back 25

statedthat the UK has "elective dictatorship". It means that although thepeople elected the Government, but once elected, it can generally act as itpleases and get the Parliament to enact its legislative plan in full. TheParliament is a mere "rubber stamps" of the Government legislativeplans.

Front 26

Marshall

Back 26

there is no clear and consistent definition of theseparation of power principle.

Front 27

Constitutional Reform Act 2005 (CRA) 2005 changes

Back 27

(1) the Law Lords sat at the HoL as part of the Legislature;

(2) The LC used to be the Speaker of the HoL, a cabinet minister;

(3) LC's recommendation of judicial appointments

Front 28

Detailed CRA 2005

Back 28

1. Law Lords now sit at the Supreme Court (outside the Parliament - visible symbol of separation)
   
2. LC's remains a gov't minister but no longer sits as a judge, or acts as Speaker of the HoL.
3. Remove LC's power on judicial appointments by creating Judicial Appointments Commission (JAC)

Front 29

Alex Caroll

Back 29

Judicial review is underpinned by the separation of powers in that its ... credibilitydepends on the existence of an independent and impartial judiciary.