public law 4

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1.

separation of powers: not strict, system of checks and balances which ensures that powers are not abused. The fundamental purpose of the separation of powers is to avoid the abuse of power and thereby to protect the rights and liberties of citizens.

9.

Scotland case sep of P Starrs v Procurator Fiscal, Linlithgow [2000] D claimed that his trial before a temporary sheriff violated his right under Art.6 (1) to a trial before an independent and impartial tribunal. Temporary sheriffs are appointed by the Lord Advocate (a member of the Executive) as a first step on the road to a permanent judicial appointment.: Court of Session ruled that the independence of the judiciary was impaired, and hence the right to fair trial violated, through the dependence of temporary judges for reappointment on the office of Procurator Fiscal. Judicial independence can be threatened not only by direct interference, but also by a judge being influenced (consciously or unconsciously) by his hopes and fears about his future career.

2.

Montesquieu's De l'esprit des lois (1748) : the executive, legislature and judiciary should each have a discrete and defined area of power and that there should be a clear demarcation of functions between them: this is true 'separation of powers'.

3.

Institutions of the british state: executive, Parliament judiciary

4.

Executive:: Crown, central government (PM+cabinet) civil servants, armed forces, police. formulate and implement government policy across all governmental activities. The elected government of the day is accountable to Parliament, which has the ultimate power to dismiss a government and force a general election through which the people will decide on who will run the next government. Members of government are primarily elected Members of Parliament who sit in the House of Commons, although a number of government ministers also sit in the House of Lords. limits imposed on the number of salaried ministers who sit in the Commons under the House of Commons

10.

reformed Lord Chancellor, Constitutional Reform Act 2005: removed the judicial functions of the Lord Chancellor and his former role as head of the judiciary is now filled by the Lord Chief Justice. removed the judicial functions of the Lord Chancellor and his former role as head of the judiciary is now filled by the Lord Chief Justice.

11.

judicial independence: High Court and above have tenure under the Act of Settlement 1700, which protects their independence from both the executive and Parliament. Superior judges can only be dismissed by an address to the Crown from both Houses of Parliament.

12.

judicial bias forms, must be free from bias "justice must manifestly be seen to be done": political affiliation with person or organization personal bias against persons or groups financial dealings

5.

Parliament: Crown, elected house of commons and HL. HOC: elected, law making powers 1 election at least every 5 years Parliament Act 1911

6.

Judiciary: all the judges in the courts of law, and also those who hold judicial office in tribunals, and the lay magistrates who staff the magistrates' courts. Senior judicial appointments are made by the Crown
13.

financial bias Dimes v Grand Junction Canal Proprietors (1852): the Lord Chancellor held shares in a canal company which was involved in litigation. The House of Lords ruled that the Lord Chancellor should have disqualified himself from sitting. Even though it was accepted that he was not influenced by the interest, the court ruled that it was of the utmost importance that 'the maxim that no man is to be judge in his own cause should be held sacred'

7.

The Lord Chancellor: prior to the Constitutional Reform Act 2005, the office of Lord Chancellor: head of judiciary! member of cabinet presided over HL => legislative role violates separation of P. exex, judicial and parliament in one person

8.

Channel Island case, separation of P McGonnell v United Kingdom (2000) ECHR right to a fair trial: violated by the participation in a planning decision of the Deputy Bailiff of Guernsey both a senior judge in the Guernsey Royal Court and a senior member of Guernsey's legislative body, the States of Deliberation.

14.

R v Bow Street Stipendiary Magistrate ex parte Pinochet: HL overturned its own previous decision relating to the extradition of General Pinochet to face allegations of human rights violations during his period as Head of State in Chile. Lord Hoffmann, who had participated in the earlier decision, held office as a Director of Amnesty International which had been allowed to present evidence. The earlier decision was set aside because it gave rise to an appearance of bias

15.

relationship exec and legislature: executive is chosen directly from ranks of legislative. so the 2 are deeply connected. note in the USA president is elected separately.

19.

ex of judicial leaving some powers to executive to decide: Council of Civil Service Unions v Minister for the Civil Service [1985] GCHQ: The Prime Minister had ordered that workers at the Government's Communication Headquarters (the signals intelligence body) should no longer be allowed to be members of trade unions, a right which had been enjoyed for several decades. The Union challenged the legality of the ban. The Court of Appeal and House of Lords ruled that where national security was in issue, the courts would not interfere. NOTE: judges had jurisdiction to rule on the legality of executive action.

16.

Separation of Powers What checks are available to avoid abuse of power by executive (checks from Parliament): Disqualification Act 1975: judicial office, civil servants police, armed forces,+ foreign legislatures cannot serve in parliament. limitation to 95 ministers from govt. 2. vote of losee of confidence in Parliament causes govt to fall. e.g. Callaghan 1979 Labour party Parliamentary procedures are designed to scrutinise bills in 1986 forced to abandon plans to deregulate Sunday trading despite majority. Opposition: role is to propose alternatives, challenge 20 days set aside to debate subjects chose by Oppotisiton HL has power to delay non Money bills for 1 year until Royal Assent, can be used to pressure compromise elections/by-elections delegated legislation: delegate law-making powers to the government through powers to draft subordinate or delegated legislation.

20.

Legislature and judiciary: Constitutionally, judges have no power to question the validity of legislation: question of whether the judges 'make law'. This aspect of the judicial role is enhanced under the Human Rights Act 1998 (see Chapter 15) which imposes a duty on the judges to interpret legislation 'as far as possible' in a manner to make it compatible with Convention rights.

17.

The executive and judiciary: Judges must be seen to be politically impartial. The judicial function is to interpret Parliament's intentions as expressed in legislation and to ensure - through judicial review. validated delegated legislation.any delegated legislation is consistent with the scope of power granted by Parliament. The rule of law also requires that judges ensure the legality of government action;
21. 22.

Pickin v British Railways Board [1974]: ... Merkur Island Shipping Corp v Laughton (The Hoegh Anapa).: JOHN DONALDSON openly criticizes the language used in statues stating that it is not easy to understand and not always clear.

23.

Conventions and the separation of powers: in general, allegations of 'unconstitutional conduct' are rare. The explanation for this anomaly lies in constitutional conventions. ex of convention rules: In relation to the judiciary: Members of Parliament will not criticise judicial decisions. Where proceedings are before a court, or imminent, Members of Parliament are barred from raising the issues in debate. In relation to the executive: The convention of ministerial responsibility (both collective and individual: see Chapter 8) ensures the accountability of government to Parliament.

18.

M v Home Office 1994 M was to be deported. The Home Secretary's counsel gave an undertaking that this would not happen until after the hearing of the appeal. However, M was deported. The court ordered that M should be taken off the plane when it stopped at Paris. The Home Secretary did not consider himself bound by the order and M was not taken off the plane.: he Home Secretary was held in contempt of court but no punishment imposed. The "rule of law" requires even government ministers to accept and obey the orders of the courts. The decision is significant in that the House of Lords distinguished between two aspects of 'the Crown': the Crown as monarch and the Crown as executive. The courts cannot enforce the law against the Crown as monarch, but can enforce the law against the Crown as executive and against those who represent the Crown. While an injunction could not be issued against the Crown, it could be issued against a government minister.

24.

Duport Steels Ltd v Sirs [1980] Lord Diplock separation of powers: he role of the judiciary is confined to ascertaining from the words that Parliament has approved as expressing its intention what that intention was, and to giving effect to it. Where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient, or even unjust or immoral. In controversial matters such as are involved in industrial relations there is room for differences of opinion. opinion of Parliament is paramount.

25.

Magor and St Mellons RDC v Newport Corporation [1952]: HL rejects the approach of Lord Denning MR, in the Court of Appeal, who had stated that, where gaps were apparent in legislation, the courts should fill those gaps.

32.

EX: What is the explanation for the apparent conflict between judges and some academics? Are these two views capable of being reconciled?: From the perspective of the judiciary it is exceedingly important that they stress their independence from both Parliament and the executive: public confidence in the legal system could not be maintained without such independence. From an academic perspective, it is undeniable that the separation of powers under the United Kingdom's constitution is weak when compared with countries with a written constitution. However, it must also be remembered that most of the 'violations' of separation of powers are regulated by constitutional conventions which operate to avoid an abuse of power. breaches/regulations by convention

26.

cases showing relationship between legislature and judiciary: Magor and St Mellons RDC v Newport Corporation Burmah Oil Co Ltd v Lord Advocate [1965] Shaw v Director of Public Prosecutions [1962] R v R [1992] :

27.

conclusions of cases showing relationship between legislature and judiciary: In the Burmah Oil case Parliament reacted and nullified the decision; in Shaw's case Parliament did not react; whereas in R's case Parliament eventually endorsed the decision by redefining the offence of rape in legislation.

33.

EX: statutory provisions and constitutional conventions that support the concept of separation of powers.: statutory provisions and constitutional conventions that support the concept of separation of powers.

28.

Burmah Oil Co Ltd v Lord Advocate [1965]: ruled that compensation was payable to oil companies whose property had been destroyed during war time in order to prevent it from falling into enemy hands. The government quickly proposed and Parliament passed the War Damage Act 1965 which effectively nullified the decision.

29.

Shaw v Director of Public Prosecutions [1962]: House of Lords ruled that the publisher of a directory of prostitutes' services was guilty of the offence of conspiracy to corrupt public morals - an offence previously unknown to law. Parliament did not invalidate the decision.

30.

R v R 1992: House of Lords ruled that a husband who had raped his wife at a time when it had been lawful for him to do so was guilty of rape. The European Court of Human Rights upheld the House of Lords' decision, despite the fact that it imposed retrospective criminal liability in violation of Article 7 of the European Convention on Human Rights

31.

To what extent is separation of powers: a. evident and b. desirable under the constitution?: A good example in relation to (a) is the fact that the executive sits in the legislature: a clear breach of separation of powers. However, you will also note that there are restrictions which prevent an abuse of power (see the House of Commons Disqualification Act 1975). On 'desirability' (part (b)), note that while the close relationship between the executive and legislature violates separation of powers, it also facilitates the accountability of the executive to Parliament.