Sep Of Powers Critics + Essay Points Flashcards
Intro? 2 critics to mention?
Sep of powers refers to a system of checks and balances between the three branches of govt: executive (decides policy), legislative (passes legislation), judiciary (challenges constitutionality of the legislation)
Munro: as well as the separation of branches of govt, the personnel and functions of those branches must be separate.
Barendt: in the uk the Sep of powers is disputed. Though the judiciary is Sep from the legislative and executive, the legislative and executive overlap in a number of ways.
So there is no formal Sep of powers as there is in the US.
Headings for Sep of powers essay structure?
Rule of law (CL principle) - legal certainty
Principles of JR (procedural impropriety, illegality, legit expectations, unreasonableness)
Principles of statutory interpretation
Independence of judiciary
Theoretical observations
Judiciary and statutory interpretation?
- JR: Origins = Bagg’s case
Any act of misgovernment is open to correction through the courts (CL)
Wednesbury
Illegality - does the claimed power exist? A want of jurisdiction? Excess of jurisdiction? Going beyond 4 corners of the act?
Unreasonableness/irrationality
Natural justice, procedural unfairness (legit expectations, looking at bias or if decision made in a way which didn’t allow the party to make representations to the decision-maker)
- Statutory interpretation
Literal rule (R v Judge of City of London Court, literal even if leads to an absurdity; majority in Liversidge v Andersen)
Golden Rule - use other parts of the act to lend the provision more sense.
Mischief rule - what is the mischief being addressed? (Atkin in Liversidge v Andersen - purposive approach)
Purposive or teleological reasoning (Maggor and St Mellons, Liversidge v Andersen, parl still sov Rossminster denning CoA wilberforce HoL) - Exclusion of JR
Law >convention (madzimbamuto) and origins of JR (Bagg’s case)
Ouster clauses
Denning in Gilmore, said can oust if use clear express words, but can’t be manner and form entrenched since an individual will always have a right to appeal.
Reid in Anisminic - protecting right to review.mouster clauses not ok.
Wade, certainty, dicey, RoL.
Legal certainty?
Key feature of Sep of powers and RoL. Only if can hold 3 branches to account can it we be certain of the law in its current form (so citizens can arrange their affairs)
Hayek red light (thin RoL) vs Jones green light (thick RoL)
Retrospective legislation (burmah oil) - compare US, where this can’t happen.
Retrospectivity at CL?
Stare decisis: let previous decision stand. 1966 practice statement, parl can depart from precedent where appropriate, as can SC.
RvR; RvC.
Independence of judiciary?
This is the making of the law through the courts.
Old orthodoxy: judiciary declares, rather than makes the law. Aim: legal certainty.
E.g. Lord Reid dissent in DPP v Shaw - a man should be able to know what conduct is and is not criminal. Legal certainty.
Cf.
majority in DPP v Shaw: said CL CREATED new rules, said it is the court’s duty to update them. Saw CL as a dynamic concept.
This was before the practice statement
So think about CLARIFICATION OF LAW vs MAKING THE LAW
New orthodoxy: judiciary MAKES rather than DECLARES the law
Lord Browne-Wilkinson in Kleinwort Benson had a strange take on this - said when a previous judgement is overruled nothing is changed, the truth is merely revealed, as it existed in that form all along.
When should courts make law?
Malone - however was too political to extend the concept of trespass from the Narrow, physical Entick sense.
Theoretical observations?
Montesquieu - checks and balances
Dicey - Sep of powers, legal certainty, individual liberty, social and business relationships - underpinning a system of stable governance. This is the underpinning of system of stable governance.
RoL is conduit for considering more of the nation’s views (since power not concentrated in one branch) so feeds into democracy.
Hayek red light thin RoL, orthodox Diceyan view
Predictability of law is paramount, protection of individual’s rights. Thin rule of law - RoL as a formal or procedural concept.
Complements Hayek’s market liberal, govt minimising ecominc and political perspective. He thinks any policy aimed at redistribution will lead to the destruction of the RoL.
RoL as an absolute value, e.g. Disallow ouster clauses, Entick, backing up orthodoxy.
Jones green light thick rule of law, RoL may embody certain fundamental rights.
Not nec for individuals to see precise location of power, it is enough for them to be able to see the general boundaries.
Trade off: accept reduced legal predictability for social democratic policies. More pragmatic approach.
Welfare state - govt need more power since fulfilling more tasks, so need more room to manoeuvre.
RoL as a relative, not absolute, value. Change to accommodate society. So inviting a purposive approach to legislative interpretation.
Dworkin - authority in thin v thick RoL
Raz
Refutes Dworkin. RoL doesn’t take on fundamental rights and become thick.
RoL must be clear, precise, stable, public, prospective to maximise legal certainty.
RoL always thin - it is formal legality. A set of rules written down.
When welfare state created it is simply a reduction in the proportion of govt which adheres to strict rules. Less of govt boxed in. More govt power.
RoL doesn’t take on moral concepts or values. Morality of law is a function to which it is put. This is evident from the fact that the RoL would be immoral in the hands of an immoral regime.
Allen
Law influenced by the time within. Backs up Raz
So could see Sep of powers as a set of rules in itself, nestled within a series of formal rules which make up the RoL? Sort of. Sep of powers is a concept.
Nec to retain to ensure power controlled.
Points on Sep of powers and democracy?
Democracy is a decision procedure that presents a way for society to organise itself and to determine the contents of the RoL.
Everyone to have an equal voice, so democracy says nothing about what the RoL must contain.
Democracy and RoL have a symbiotic relationship. If have dem but no RoL then dem would be circumvented by stepping around these rules (power concentrated). If have RoL but no democracy then RoL loses all legitimacy and is imposed in the people. This would be autocratic, so executive have all the power. So rule of law not in its proper form. So can’t have RoL in a practical sense without a means of taking people’s views into account, since how could it be held up?
Benevolent dictator idea. Yes but to ensure has support of people must take their views into account in some manner, so partially democratic, if not at the highest level.
