Describe The Separation Of Powers And The Independence Of The Judiciary Flashcards
What is the Doctrine of the Separation of Powers?
It is a key principle of the UK constitution that separates the three main sources of power: the Legislature, the Executive, and the Judiciary.
Who put forward the Doctrine of the Separation of Powers?
Montesquieu in the 18th century.
What is the role of the Legislature?
It is the law-making arm of the state, which is Parliament.
What is the role of the Executive?
It is the body controlling the law, which is the government.
What is the role of the Judiciary?
It applies the law.
Why must the Judiciary be independent?
To ensure fair and impartial justice and to prevent any one person or body from holding all the power in society.
How is Judicial Independence achieved from the Legislature?
Full-time judges are not involved in Parliamentary law making and cannot be MPs. The Supreme Court was created in 2009 to emphasize this separation.
How is Judicial Independence achieved from the Executive?
Under the Constitutional Reform Act 2005, the government must not try to influence judicial decisions. This was upheld in the 2016 Brexit case: R (Miller) v Secretary of State for Exiting the European Union.
What was the Supreme Court’s ruling in the Brexit case?
The Supreme Court ruled against the government and ordered it to seek Parliament’s approval for the UK to leave the EU.
What was declared unlawful by the Supreme Court in September 2019?
Prime Minister Boris Johnson’s decision to suspend Parliament.
Why is independence from the case important for judges?
Judges must be completely impartial and must not hear any case where they have any interest.
What was the outcome of the Pinochet Case?
A re-trial was ordered when it was discovered that Lord Hoffman, a judge hearing the case, was a director of Amnesty International.
What does immunity from suit mean for judges?
Judges cannot be sued in civil courts or prosecuted in criminal courts for actions taken in connection with their judicial duties.
What case confirmed the immunity from suit for judges?
SIRROS v MOORE.
What does security of tenure mean for judges?
Judges are difficult to remove, allowing them to be independent when making decisions.
How can superior judges be removed?
Only by the monarch upon petition by both Houses of Parliament.
Has the power to remove an English judge ever been used?
No, it has never been used for an English judge.
How can inferior judges be dismissed?
By the Lord Chancellor with the consent of the Lord Chief Justice for incapacity or misbehaviour, but this is very rare.
What has reduced political influence in the selection of judges?
The selection process for appointing new judges is now less likely to be politically influenced.
This change is due to reforms implemented by the Constitutional Reform Act 2005.
What did the Constitutional Reform Act 2005 create?
The Constitutional Reform Act 2005 created the Judicial Appointments Commission.
This commission ensures judges are appointed solely on merit.
How are judges now appointed according to the reforms?
Judges are now appointed solely on merit rather than being ‘recommended’ in a secretive system.
What is the role of the Lord Chancellor in the selection process?
The role of the Lord Chancellor in the selection process is now much reduced.
