Separation of Powers Flashcards
(25 cards)
What is the theory of the separation of powers?
The theory holds that to prevent abuse of power, state functions should be divided between three distinct organs: the legislature, the executive, and the judiciary.
Is there a clear separation of powers in the UK constitution?
No. The UK’s constitution is uncodified and evolved over time, resulting in overlaps—particularly between the executive and legislature.
How do the three branches each participate in law-making?
Executive: Proposes legislation, drafts statutory instruments
Legislature: Enacts laws, including secondary legislation powers
Judiciary: Interprets and applies laws; develops common law
What is judicial activism?
Judicial activism refers to judges creating or extending legal principles.
What is judicial deference?
Judicial deference is the judiciary’s reluctance to create new rights without parliamentary backing.
What is the executive?
A broad term referring to the government: Prime Minister, Cabinet, civil service, and departments responsible for executing policy and law.
How is power delegated within the executive?
Ministers can delegate powers to civil servants, provided they are of sufficient seniority and the delegation is lawful.
What overlap exists between the executive and legislature?
Ministers are also MPs, and the executive originates legislation. This results in a ‘fusion of powers’.
What is secondary legislation and how is it made?
Also called delegated legislation. Made by ministers under authority granted by primary legislation. Commonly in the form of statutory instruments.
What are the levels of scrutiny for secondary legislation?
No scrutiny
Negative procedure – becomes law unless annulled
Affirmative procedure – requires positive approvl
What are the criteria for judicial appointment?
Appointments must be based on merit and good character
What protects judicial officers from civil action?
Judicial immunity from tort claims applies to acts done in judicial capacity in court, provided they act in good faith.
What is judicial review?
A process where courts assess the legality (not merits) of executive or public body decisions, ensuring compliance with law and procedure.
What limits apply to judicial review?
Courts will not review decisions based solely on policy or national security unless the legal authority or process is flawed.
Can judges review Acts of Parliament?
Generally no, but with exceptions:
- Conflict with EU law (pre-Brexit/retained EU law)
- Declaration of incompatibility under the Human Rights Act 1998
Can judges review secondary legislation?
Yes. Delegated legislation must be within the scope granted by primary legislation (i.e. intra vires) and is subject to judicial review.
What is the function of the Administrative Court?
It is a specialist court in the King’s Bench Division for judicial review cases and public law challenges.
Is the Executive subject to court orders?
The executive (Home Secretary) is subject to court orders. Ignoring a court order was contempt of court, reinforcing judicial authority.
May the Executive substitute its own police using prerogative power?
The executive may not substitute its own policy using prerogative power when a statutory scheme, not yet repealed, remains on the statute book.
What does ‘devolution’ mean in the UK context?
It refers to the transfer by the UK Parliament of legislative powers to devolved legislatures and administrations (executives).
e.g.
The Scottish Parliament and Scottish Government
The Senedd (Welsh Parliament) and Welsh Government
The Northern Ireland Assembly and Northern Ireland Executive
What is devolved legislation?
Legislation made by the devolved legislatures of Scotland, Wales, and Northern Ireland. It has the same force as Acts of the UK Parliament but cannot be created without enabling powers from an Act of the UK Parliament.
What are ‘devolved matters’?
Areas of government where decision-making is delegated to a devolved administration (e.g. education in Scotland).
What are ‘reserved matters’?
Areas where Parliament at Westminster retains decision-making powers (e.g. immigration, defence, foreign policy).
Are devolved laws subject to legal review?
Yes. Devolved legislation is still subject to review by the UK Supreme Court.
