Topic 5- Seperation of Powers

Question 1

Key Cases:

Answer 1

Fire Brigades Union
M v Home Office
Miller 2
Anderson

Question 2

Who developed the first theories on the SoP?

Answer 2

Montesquieu
where institutions are united in the same body they cannot be liberty

Question 3

Reasons for the SoP

Answer 3

Reduce the risk of an abuse of power (James Madison)

Efficiency institutions working together (Nick Barber)

Montesqieu–> the loss of individual liberty is the absence of SoP

Question 4

James Madison view on why SoP

Answer 4

‘very definition of tyranny’

Question 5

Versions of the doctrine of SoP

Answer 5

Vile: Advocate for a completely pure doctrine where the lines are ‘crystal clear’

Pure and Partial versions

Pure= Divisions between the powers must be clearly separated and not crossed

Partial= Breaches of the pure version are not problematic if they achieve the ultimate objective of the doctrine of the SoP (protection from tyranny)

Friction= consequence

Question 6

What are ‘checks and balances’

Answer 6

Branches can interfere with one and other to ensure an abuse of power does not occur

Each branch= accountable for one and other

Question 7

Difference between constructive and destructive branches

Answer 7

Constructive breaches= good as they help prevent from tyranny

Destructive breaches= problematic as do not succeed in the objective of SoP–against tyranny
eg increasing role of the executive (Delegated legislation)

Question 8

To what extent does the UK adhere to the SoP doctrine? 2 For 1 Against

Answer 8

For:
Diplock- developed in UK’s unwritten constitution

Against:
Bagehot: Union of the Executive and P ‘nearly complete fusion’
Increase in power of the Executive through delegated legislation (Legislative reform Act 2009)

Question 9

Problems with the pure version

Answer 9

Precludes checks and balances- which promote the prevention of tyranny by holding each institution to account

Question 10

Example of the overlap of the institutions:

Answer 10

Judges making political issues?
Human Rights
Devolution
Rwanda

Question 11

Importance of the constitutional Reform Act 2005

Answer 11

Established the Supreme Court- completely independent of P

Role of the Lord Chancellor

Judicial functions passed to the Lord Chief Justice

Parliamentary functions passed to the Lord Speaker

Question 12

Importance of checks and balances

Answer 12

Make each institution accountable to another

Question 13

What does each institution do in the SoP?

Answer 13

The legislature (Parliament):

Represent the views of the people
Publication of new laws

The Executive:

Making and implementing public policy

The Judiciary:

the courts (unelected judges)
Interpretation and application of the law

Question 14

CASE: Fire Brigades Union- Lord Mustill

Answer 14

Emphasises the importance of CHECKS AND BALANCES

Important issue= allocation of power by the institutions/over-concentration

Lord Mustill:

EXECUTIVE= subject to scrutiny from the courts –> natural for the court to infringe on some of their rights

PS- even though E is given power through DL it must be appropriate according to P

Dissenting judges:

Inappropriate for the courts to overstep and prevent unacted legislation as this is a purely political decision

Question 15

CASE: Anderson

Answer 15

No rigid doctrine of SoP

Question 16

CASE: M v Home Office

Answer 16

Lord Templemen:
Judiciary has the right to enforce against the Executive

The crown itself cannot be found guilty of contempt but the individuals who represent the crown can

Question 17

CASE: Miller 2