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Public Law > Separation Of Powers > Flashcards

Separation Of Powers Flashcards

1
Q

Which branch is the most fluid?

A

Executive

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2
Q

Why is there a fusion of powers in the uk?

A

Parliamentary system - the legislature selects and contains the political part of the executive which is dependant on the legislature for its power.

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3
Q

Why are there potential dangers with fusion of powers?

A

Whips on MPs
First Past the Post = large govt majority

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4
Q

What are Henry VIII clauses?

A

Acts that contain clauses allowing the executive to amend/repeal provisions in an Act using secondary legislation

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5
Q

In what context do Henry VIII clauses have particular significance?

A

Brexit

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6
Q

What are the three levels of delegation?

A

No scrutiny
Negative instruments - can become law without debate/vote, can be opposed/rejected but not amended
Affirmative instruments - both houses approve

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7
Q

What does intra/ultra vires mean?

A

Intra vires - action/legal provision within powers
Ultra vires - action/legal provision outside powers

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8
Q

Who decides if a regulation is intra vires?

A

Administrative court

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9
Q

What does the delegated powers and regulatory reform committee (HoL) do?

A

Examined delegated powers in primary legislation to see what powers ministers are asking for

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10
Q

What does the merits of statutory instruments committee (HoL) do?

A

Examines secondary legislation resulting from the exercise of powers in parent act

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11
Q

What does the Joint Committee on statutory instruments do?

A

Ensures statutory instruments comply with parent act requirements

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12
Q

Who in the executive has most notably had judicial functions?

A

Home Secretary

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13
Q

How did the tribunals, courts and enforcement act 2007 reduce the overlap in separation of powers?

A

Tribunals we’re funded and administered by government departments
Created upper tribunal to supervise/administer instead

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14
Q

What were the reforms of the Lord Chancellor in the constitutional reform act 2005?

A
  • no longer lords speaker
  • no longer head of judiciary
  • judicial appointment powers transferred to judicial appointments commission
  • renamed ministry of justice/ Lord chancellor and Secretary of State for justice
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15
Q

What were the constitutional reform act 2005 reforms partially inspired by?

A

Article 6 ECHR - courts/tribunals impartial and independent from executive

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16
Q

What is the role of the attorney general and the conflict of interest

A
  • sits in cabinet
  • chief legal advisor to government
  • decides whether to bring prosecution in individual cases
  • conflict - political allegiance of office holder and wider obligation to be independent and impartial
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17
Q

What does section 3 constitutional reform act 2005 say about judicial independence?

A
  • Lord chancellor/ministers must uphold independence
  • must not seem to influence judicial decisions through special access
  • Lord chancellor must have regard to the need to defend independence/support judiciary
18
Q

What was the highest court historically?

A

House of Lords (appellate committee)

19
Q

What are judicial appointments solely based on?

A

Merit and good character

20
Q

What is judicial pay and tenure?

A
  • judges hold office “during good behaviour”
    *may only be dismissed by monarch following address by both houses
  • statutory retirement age: 70
  • independent pay review body
21
Q

What is the political independence of judges?

A
  • full time: disqualified from sitting in commons
  • cabinet/MPs should not criticise character/motivation (convention)
  • courts lack jurisdiction to inquire into proceedings in parliament
22
Q

What is judicial immunity from civil actions?

A
  • judges = immune from legal proceedings that would otherwise be tortious AS LONG AS part of judicial capacity
  • magistrates may be liable for acts outside of their jurisdiction
23
Q

When can hearings be held in private?

A
  • publicity would defeat the object of the hearing
  • national security
  • confidential information
  • interests of child
24
Q

What is the role in legislation of the three organs of the state?

A
  • executive - government proposes primary legislation for consideration + drafts secondary legislation
  • legislature - propose legislation (PMBs) + decides whether executive proposals become law
  • judiciary - interprets parliaments intentions in making legislation + develops common law
25
Q

How did the court get away with making new law in Shaw v DPP?

A

They applied existing principles common law (conduct calculated to corrupt public morals is an indictable misdemeanour)

26
Q

What was shown by the courts in malone v mpc?

A

Deference to parliament (right to privacy)

27
Q

What did Gillick show about judicial lawmaking?

A
  • senior court judges are often required to make decisions in the absence of statute/common law
  • common law develops with changing political/cultural climate
28
Q

How was the law modernised in R v R?

A

The court had a duty to alter rules to reflect todays society if legitimate in light of an enactment of parliament (marital rape)

29
Q

Did the court defer in bland?

A

No, worker from existing principles distinguishing acts and omissions

30
Q

When might the court not/be cautious about developing the law?

A
  • insufficient common law
  • novel and contentious
  • political or ethical
31
Q

How can Parliament override judge made law?

A

Passing legislation

32
Q

Do judges have the power to scrutinise parliamentary proceedings?

A

No

33
Q

Do judges have the power to review primary legislation and is there an exception?

A

No
Exception - where an Act is incompatible with ECHR the court may make a declaration of incompatibility

34
Q

Do judges have the power to review secondary legislation?

A

Yes - can be challenged and invalidated or quashed.

35
Q

What is the legal mechanism for challenging secondary legislation?

A

Judicial review carried out by the Administrative Court (Specialist KBD High Court)

36
Q

What is the purpose of judicial review?

A
  • prevent abuse of power by executive
  • uphold individual rights and interests
37
Q

What does judicial review examine?

A

The legality of a decision (not merits)

38
Q

Can the executive ignore a court decision?

A

No, can only be overturned by a higher court

39
Q

Why did the court overrule in Miller 2?

A

It would have prevented parliament from carrying out its proper constitutional functions (legislature and supervision of executive)

40
Q

Why did the court overrule in R v Home Secretary ex p Fire Brigades Union?

A

Because they were bypassing the will of parliament

41
Q

What are the judicial intervention dividing lines?

A
  • courts require all decisions to be within the scope of relevant legal power
  • courts reserve impinging on substantial policy decisions, but may if devoid of reason
  • move from culture of authority to culture of justification

Public Law (8 decks)

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