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Flashcards in Separation of Powers Deck (21)
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The doctrine of the separation of powers identifies three branches of state:

(a) the legislature (or parliament) which makes the law;
(b) the executive (or government) which implements or administers the law;
(c) the judiciary (or courts) which resolves disputes about the law.


The doctrine holds that, as each branch of state has a different role to play within the constitution, there should be... overlap between the branches, either in terms of their functions or in terms of their personnel.


If such an overlap (between branches of state) were to exist...

..this would represent an unhealthy concentration of power, which could lead to arbitrary or oppressive government.


The doctrine also holds that, as each branch of state cannot in reality operate in isolation from the other branches, there should be a system of....

...‘checks and balances’ in place so that one branch can be kept ‘in check’ by the other branches and there is a ‘balance of power’ between the different branches.


The executive branch of state is made up of ...

the Queen, the Prime Minister and other government Ministers, the civil service, and the members of the police and armed forces.

Central government comprises the Queen, government Ministers and members of the civil service. The Crown is the central government plus members of the police and the armed forces


The legislative branch of state is made up of...

..the Queen, the House of Lords and the House of Commons.


The judicial branch of state is made up of...

...the Queen, all legally-qualified judges, and magistrates


Although the Queen is part of all three branches of state, her role is...

..largely cermonial.


Exec - The Government is legally the ‘Queen’s Government’, although in reality....

...government Ministers are appointed by the Prime Minister and, by convention, most of the Queen’s legal powers are exercised by the Government on her behalf.


Leg - The Queen is part of the legislature because...

...she must give Royal Assent before a bill which has passed through Parliament becomes an Act of Parliament. Although legally the Queen may refuse to give Royal Assent to a bill, by convention she will always give this.


Jud - The Queen is also head of the judiciary

Judges are the ‘Queen’s judges’ and the courts are the ‘Queen’s courts’. The Queen does not, however, exercise any judicial power.


In R (on the application of Anderson) v Secretary of State for the Home Department [2002]

The House of Lords held that the power of the Home Secretary to determine the length of time a prisoner who had received a sentence of life imprisonment had to serve in prison before being eligible for release on parole, was incompatible with Article 6.

Principle - Their Lordships found that sentencing of offenders was a judicial function, which should not be carried out by a member of the executive who was neither independent nor impartial and who might be swayed by party political considerations.


In the case of R (Miller) v The Prime Minister; Cherry v Advocate General for Scotland [2019] (Miller II)

The Supreme Court ruled on the extent of the prerogative to prorogue (or advise the monarch to prorogue) Parliament.

The panel of 11 Supreme Court Justices, in a unanimous judgment, held that the power to prorogue Parliament did not extend to a situation where such prorogation would have the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification.

The attempted prorogation would have the effect of preventing Parliament from carrying out its constitutional role for five out of the possible eight weeks running up to the (then) date of exiting the European Union. No justification for taking this action was given and so the decision to advise the Queen to prorogue Parliament was unlawful.


Blackburn v Attorney-General [1971]

Blackburn sought a declaration that the Government, by signing the Treaty of Rome (now the TFEU), would unlawfully surrender part of Parliament’s sovereignty.

The court held that it had the power to determine whether a prerogative power existed but, once it had determined the existence of the power, it had no right to review the exercise of the power. The power to sign an international treaty was part of the Royal Prerogative and the exercise of that power was immune from judicial review.


CCSU v Minister for Civil Service [1984]

The Council of Civil Service Unions asked the courts to review the decision of the Minister for the Civil Service to prohibit staff at GCHQ from becoming members of a trade union without first consulting with the relevant trade union.

On the particular facts of the case, the House of Lords held that the Minister’s decision had been prompted by concerns about national security. Issues of national security fell squarely within the Royal Prerogative and the Minister had been entitled to act as she did.

The case is more important, however, for what it said generally about the power of the courts to review the exercise of Royal Prerogative powers by the executive.

Retreating from the decision in Blackburn, their Lordships held that the exercise of prerogative powers was not automatically immune from the judicial review process. In his speech, Lord Roskill said that any power exercised by the executive, whether the source of that power was from statute or the Royal Prerogative, was capable of being judicially reviewed.

The only exception to this was if the power being exercised was not ‘justiciable’ (ie not an appropriate area for the involvement of the courts).


(R v Secretary of State for the Home Department, ex p Bentley [1993] 4 All ER 442).

Courts reviewed the exercise of the prerogative of mercy by the Home Secretary (thought to be nonjusticiable).


R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 Miller 1

An example is the prerogative power to make international treaties, the exercise of which, the Supreme Court confirmed in Miller 1 is not subject to judicial review.


The House of Commons Disqualification Act 1975

....preserves the separation of powers between the executive and the legislature.
- Section 1 disqualifies certain members of the executive (civil servants, members of the armed forces, and members of the police) from holding Parliamentary office.
- Section 2 limits the number of government Ministers who may sit in the House of Commons to 95 (although you might contrast this with the position in the USA, where no member of the executive, apart from the Vice President, may also be a member of Congress).


Constitutional Reform and Governance Act 2010

This put parliamentary scrutiny of treaty ratification by the Government on a statutory basis, giving legal effect to any resolution of the House of Commons or Lords that a treaty should not be ratified.

The Report points out that no systematic scrutiny takes place before the completed and signed treaty has been laid before both Houses of Parliament. Parliamentary scrutiny is then limited to a 21-day sitting period after the treaty has been laid. Treaties are subject to the ‘negative resolution procedure’ which means that no debate or vote is required prior to ratification. Indeed, no debates have taken place in the House of Commons under the provisions in the 2010 Act since it has been passed.


Constitutional Reform Act 2005

Role of Lord Chancellor
The Lord Chancellor’s role as head of the judiciary has been transferred to the Lord Chief Justice.

Prior to the Act, the Lord Chancellor was a member of both the executive and the judiciary. As a government Minister, the Lord Chancellor was a political appointee with a seat in the Cabinet. But he or she was also the head of the judiciary, with responsibility for the appointment of senior members of the judiciary. The Lord Chancellor was also entitled to sit as a Law Lord. It was felt that this dual role of the Lord Chancellor created the impression that the executive had too much influence over the judiciary.

The Lord Chancellor remains a member of the Cabinet (although this role has now been combined with that of Secretary of State for Justice).

2. Creation of the Judicial Appointments Commission. The Judicial Appointments Commission (JAC) is an independent body that has been created to ensure that the appointment of judges in England and Wales occurs solely on merit and is not influenced by political considerations.

3. The Constitutional Reform Act 2005 also created the Supreme Court to replace the Judicial Committee of the House of Lords.


Belmarsh Case 2005

Belmarsh case involved a challenge to provisions in the Anti-terrorism, Crime and Security Act 2001 which permitted foreign nationals suspected of being involved in terrorist activities (but against whom there was insufficient evidence to bring criminal proceedings) to be detained indefinitely without trial.

The House of Lords (now the Supreme Court) held that such detention was unlawful and a breach of the European Convention on Human Rights (ECHR).