separation of powers Flashcards
(13 cards)
what is the definition of separation of powers?
- the principle that the citizenry are kept safe from the abuse of power. The ‘triad politica’ principle
- ‘the doctrine under which the legislative, executive, and judicial branches of government are not to infringe upon each other’s constitutionally vested powers
what are the 3 powers?
certain independent powers are held in the government within the:
- legislative branch (Parliament)
- executive branch (Prime Minister, Majority Government and civil service)
- judiciary branch (judges)
why is there a separation of powers?
- to distribute rights and delegate responsibilities
- to ensure independence and avoid concentration of power
- to clarify roles and duties
- to avoid abuses of power
explain the practice of separation of powers in the UK?
- the UK does not have a formal written constitution
- the simple notion of 3 branches is not in record with reality. In practice, they overlap and work in collaboration with each other and have to do so historically
- there are 3 main areas where scrutiny reveals weak separation of powers which might be determined as collaborative practice or conflict with the potential to effect of influence law making
what is the weak separation/collaborative practice between the legislature and executive?
- in the UK, the legislature is dominated by the executive because the government is formed by the lead of whichever party wins the most seats at the House of Commons. The legislature might receive a considerable amount of pressure from the executive. So, even though it is the parliament’s job to legislate, the government mainly controls it
what is the weak separation/collaborative practice between the executive and judiciary?
can be argued that the executive dominates the judiciary. The appointment of the serious judges is in the hands of the Lord Chancellor (government minister), but once the judges are appointed, it is not up to the Lord Chancellor to dismiss them. It is possible to say that there is certain independence after the appointment
what is the weak separation/collaborative practice between legislature and judiciary?
the judiciary and parliament mainly share their law-making powers, rather than separate them. This is because judges have a legislative rule in Common Law system. Judges are able to make law through rulings in decided cases. Despite this overlap, the judges have deterred primary law-making powers to the authority of the parliament since the 17th century
what is judiciary independence?
GRIFFITHS in ‘the Politics of the Judiciary’ argued that:
- judges work to maintain the existing social order as members of the establishment
- they decide what is in the public interest when making judgements, but usually this ‘public interest’ is based on dominant ideologies
- their judiciary lacks diversity in terms of social class, gender and ethnicity
- the judiciary is supposed to implement the law but there are ways their actions can result in independence towards new laws/changes to existing laws
what is the ministry of justice?
May 2007 - the MoJ started. Senior judges expressed importance concerns. These were ‘important issues of principles’
what is the magistrates’ court?
all criminal cases occur here, and a high percentage of cases are also completed here. Summary offences are heard here (e.g. traffic violations, petty theft). The highest sentence is 6 months of imprisonment. For indictable offences, procedure is to send the cases to crown court
what is the crown court?
established by the Courts Act 1971. They use juries and they can act as appellate courts (appeals). Class 1 offences are the most serious (murder, treason), class 2 offences (sexual offences), class 3 offences are all other offences (kidnapping, robbery, GBH)
what is the Human Rights Act impact on the power of judiciary?
- HRA 1998 provides a remedy of breach of a right within the UK courts, without the requirement of the European Convention on Human Rights
- the HRA has been used as a way to judge other acts passed by parliament
- can’t directly overturn an act of parliament but can issue a ‘declaration of incompatibility’ = which puts pressure on government to make changes to the legislation
what is an example of legislation changes because of judiciary and executive?
the Anti-terrorism, Crime and Security Act 2001 allowed indefinite detention without trial for foreign nationals who are suspended association with international terrorism. Resulted in people being detained for indefinite periods, so those in detention were not allowed to see evidence against them. Judiciary argued that this breached their human rights. This resulted in the law being changed from indefinite to time-limited
