Separation of powers


Separation of powers

Legislative, executive and judicial functions, rationale for separation of powers?, separation of powers in Britain?, separation of powers in Britain, crown and parliament, Assessing Parliament and assessing the executive. 

'The separation of powers is a very theoretical concept indeed. It is above all a concept, and not a fact' 'but the theoretical separation of powers is merely the preface to the main volume of practical problems of how the different and possible separate powers should be co-ordinated.' - Ralf Dahrendorf (never fully acheiveable)

Legislative- makings legally binding sets of rules that are generally applicable

Executive- foreign relations, military action, administration, development of policy on a very wide range of subjects. 

Judicial- applying the law to resolve civil disputes. Conduct of civil trials. 

Idea was popularised in the 18th century. Can be no liberty when the bodies are not separate and may create tyranny. 

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Separation of powers

Pure- no overlapping of powers at all. Possible to decide between functions of each leg. Allocate functions to institutions. This model is unworkable. 

Partial- some overlap of powers between the institutions. 

'Does this phenomenon mean that the separation of powers analysis should be abandoned as hopeless? It would seem so, if the pure theory is adopted, with its rigid insistence that each function of governement is discharged by a separate institution' 'What is crucial is that this distinction is enforceable by the courts. They are entitled to take the final decision whether in practise a function is to be regarded as legislative, executive or judicial.'- Eric Braendt 1995. (support of the partial account).

What is the rationale for the separation of powers? 1) Template for constitutional design- if a country is starting from scratch the idea of separation of powers offers a useful guide on allocating power 2) protection of liberty- avoiding the concentration of power to help avoid tyranny. A system of checks and balances.- supported by Braendt. 3) efficiency- by allocating various powers to the right type of institution it is more likely that power will be exercised efficiently.- NW Barber

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'When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty.'- Montesquieu 1748

'It is efficiency, not liberty, which is at the heart of the separation of powers'- N W Barber 2001

Four factors affecting competancy of an institution in the performance of its tasks- 1) composition and skills of an institution 2) scope of an institutions information gathering powers 3) manner of an institutions decision making processes 3) vulnerability of an institution to outside pressures. (Courts arent, parliament is)

'Mention the separation of powers to an English constitutional lawyer and he will forwith put on parade the Lord Chancellor, the Law Lords, the parliamentary executive, delegated legislation (law made by someone other than parliament, 3000 made a year, whereas 60 Acts of P) and administrative adjudication and shift the conversation to more significant topics.'- de Smith (saying separation of powers doesnt have much real life application)

'the fusion of the legislative and executive functions may, to those who have not much considered it, seem but a dry and small matter to be the latent essense and efficient secret of the English constitution' - Bagehot- The English Constitution

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'it cannot be too strongly emphasised that the British Constitution, though largely unwritten, is firmly based on the separation of powers: though Parliament makes the laws, the judiciary interpret them'- Diplock in Duport Steels v Sirs 1980

'Parliament makes the law, the executive carry the law into effect and the judiciary enforce the law'- Templeman in M v Home Office 1994

Law Lords have now been abolished. The Lord Chancellor who was in 3 branches has now been taken out of speakership and the judiciary. 

'Key to understanding power in British constitution is not the separation of power between legislature, executive and judiciary, but between the Crown and  Parliament. 

Policitcal constitution- parliamentary sovereignty, policitcal model of rights protection, formal conception of rule of law and less emphasis on separation of powers, rationale as efficiency

Legal constitution- constitutional sovereignty, legal model of rights protection, substantive conception of the rule of law and strong emphasis on separation of powers to protect liberty.

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Changing constitution

What is parliament for? Building an answer- 1) composition and role of HC and HL, 2) legislative function 3) recent reforms 4) connections between the parliament and the constitution 5) analysing Parliament in light of Barbers account of SoP.

What is parliament for? Political constitution- where those who exercise power are held to account by political institutions in political systems (positive view of parliaments ability to hold gov to account)

Legal constitution- where those who exercise power are held to account by courts through judicia l review (a more negative view of parliaments ability to hold gov to account) 

Electoral systems- First past the post- Westminster. Additional Member System- Scottish Parliament. Single Transferable Vote- NI assembly, local Scottish elections. Supplementary vote- London Mayor. 

Alternative vote: parliamentary voting system and consituencies act, AV referendum May 2011.

HoL- HoL Act 1999 lets hereditary peers die out, 92 left. Life Peerages Act 1958 and Spiritual peers.

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Reforming the house of lords

Bryce Conference 1917-1918, Conference of Party Leaders 1948, Parliament Bill 1968, House of Lords Act 1999. 

Parliament function- legislative and scrutiny. Legislative function- primary and delegated.

Primary legislation- 1) Public Bills (almost all and almost all from gov) 2) private members bills (from backbenchers) 3) private bills 4) hybrid bills. Takes a certain amount of time for a bill to go through by placing time constraints on debates. 

Legislative process- First reading, Second reading, Committee stage (intense scruitiny), Report stage, Third Reading. Gov have lots of control. It is then sent to the HoL. Can involve bypass procedure, without committee stage but this has only been used 6 times. 

Delegated legislation- power making ability in someone else with Parliaments permission 1) statutory instruments 2) orders in council 3) by laws 4) regulatory reform and remedial orders. 

Controlling delegated legislation- consultation- minister must talk to people affected by it, publicity- must be published, judicial review (ultra vires)- can invalidate it, and parliamentary procedure and scruitiny. 

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Example of the affirmative resolution procedure- must be led before Parliament, must be passed endorsing statute instrument. Regulation of Investigatory Powers Act 2000.- s30 (7) no order to add to the list of public authorities that can use 'covert human intelligence services' can be made 'unless a draft of the order has been laid before parliament and approved by a resolution of each House'. This is the more taxing procedure, more scruitiny. Parliament decides when to use the procedure, rarely used. Can have committee review. 

Example of negative resolution procedure- Transport Act 2000, S160(2) 'a statutory instrument containing regulations or an order made by a minister shall be subject to annulment in pursuance of a resolution of either House of Parliament.' More common, goes before parliament for 40 days and if nothing is done it is passed. Significant degrees of parliamentary control.

Parlimentary scruitany function- A paradox? Sustain the government of the day but also have to hold the government of the day to account. 

Political accountability in Parliament- Parliamentary questions- ministers have to defend and explain their work. Parliamentary debates- main business of the house, explain problems and opinions of constituents. Gov decides whats debated. Select Committees- one for each gov department. (Osmortherly rules)

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Select committees

HC select committee for each government department- eg Home Affairs committee, Foreign affairs committee etc.

Some HC select committees have cross departmental responsibilities eg Public audit committee, environmental audit committeee.

5 main HL select committees (including the HL constitution committee)

Joint affairs committee- eg joint committee on human rights, joint committee on statuory interpretations.

They elect their own chairs, Dont have any sanctions and cant stop government. No formal power but their recommendations are taken very seriously. 

What is parliament for? Bagehot- 1) provision and maintenance of the executive 2) expressive function 3) teaching function 4) informing function 5) legislation. 

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What is parliament for?

David Judge and Phillip Norton- 1) determining who gains and who loses power 2) testing the mettle of ministers and would be ministers 3) granting of legitimacy to government policies 4) scruitinising and influencing government policy 5) voting of funds to finance government 6) scruitiny of EU legislation and policy 7) transmitting the greivances of the governed 8) representing the wider nation. 

Assessing Parliament- a 'functional' SoP analysis of Parliament- Composition and skills, Information gathering powers, decision making process and extent of outside pressures.

A legal constiution- legal accountability, sceptical of parliaments scruitiny function, increased use of judicial review to counteract parliaments failings.

A political constitution- policitcal accountability, qualified confidence in parliaments scruitiny function and search out ways to enhance Parliaments ability to scruitnise. 

Institutions and personnel- the PM, the cabinet, 'next steps' agencies and the civil service.

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Ministerial responsibility

Collective and individual ministerial responsibility-

Collective- 1) the confidence principle 2) the unanimity principle 3) the confidentiality principle

Individual- 1) to inform 2) to apologise 3) to remedy 4) to resign. 

Assessing the executive- Functional SoP analysis of the executive- composition and skills, information gathering powers, decision making process, and extent of outside pressures. 

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