the separation of powers t1

why do ministers hold a dual role

sit in both houses

intertwined in legislature and government has influence in both

montesqueieu on what the separation of powers are?

philosopher 1700

“argued that the executive, legislature, and judiciary should perform separate roles”

• wanted total separation

• but this theory known as the pure theory - in contemporary times is considered impractical 

executive

government and all the agencies that help it run (from the word execute as in carrying out a task) PUTS LAW INTO PRACTISE

legislature

those who make the law in the UK Act of Parliament

judiciary

those who interpret the law and solving disputes

three main types of state power

applying/making/resolving legal disputes

why should powers be separated

• prevents tyranny while law making

• LOCKE AND MADISON - separation protects personal liberty makes it harder for the state to get involved

• BARBER efficient government an institution should do what it is designed to do ie. law making, deciding legal disputes

Barber and the police example 

• both respect the rights of the suspect and to catch criminals

• two institutions are therefore needed 

1. to detect crime

2. to enforce it and interpret it

Kavanagh’s view

• to have a representative democracy- the legislature must take into account all the things in favour and against passing a law

• public opinions and the varying public opinion should be considered

• the decision should be one which most voters support

what should the judiciary be

“Independent legal experts”

UK constitution what foundational idea connects the three

what is the executive

• referred to as the crown because the monarch appoints

• led by PM

• appointed by monarch provided they have the majority of HoC

• monarch appointing is convention

various meanings of the crown

• monarch and personal powers

• any authority that in the past belonged to the monarch

who holds parliament accountable

executive because they share responsibilities

who exercises executive power?

• government ministers

• greater administrative state (environment agency/health and safety exec/civil servants/prosecutors)

• specific jobs as delegated by government

• civil service - will not change are politically neutral

system of devolution and relation to executive power

a lot of powers come from UK’s government and given to national governments which have specific powers to use in that nation

when does the uk government get involved and when doesnt it

• will not get involved eg covid 19 different laws as health is a devolved power

• defence/foreign policy is exclusively westminster

what do government ministers do 

• have a specific area such as defence/finance/education/health…

• those in a senior position will head an entire department/ministry

• government ministers WITHOUT PORTFOLIO dont have a specific area 

• junior ministers smaller policy areas

more about government ministers

• independent civil servants will work in these departments led by permanent secretaries

• parliamentary private secretaries are members of parliament

• support during parliamentary votes

• special advisors may have more expert advice- gravitation towards certain areas- but cannot vote in parliament

• special advisors have come under fire ecause “Unaccountable and have too much influence”

• but they can give political advice to ministers which civil servants cant- politially neutral

hierarchy

prime minister

cabinet- group of ministers, they make the final decisions most important body in government

“provide framework for ministers to consider and make collective decisions on policy issues”

two meanings of cabinet

• most senior minsiters

• meeting which takes place once a week where they discuss something 

how is cabinet divided

smaller committees who look at specific things

who decides who has cabinet status

prime minister

cabinet usuall contains 

great offices of state

• prime minister

• home secretary 

• foreign secretary

• chancellor of the exchequer 

• secretary of business, defence, justice, health, education, scotland, wales, northern ireland

can posts be created in cabinet?

yes

secretary of state for exiting the European Union in 2016 by Theresa May through Brexit

Boris Johnson disbanded this

head of government?

prime minister

then cabinet ministers (secretary of state + minister without portfolio)

junior ministers (junior ministers within the ministry)
advisors- pps and special advisor

who can be appointed as minister

pm picks 

monarch will appoint (only convention)

who might a pm choose to be a minister

• “minister A deserve Cabinet post”

• “promote Minister B due to good work”

• “sacking Minister C because they arent doing a good job”

• “Minister D demoted but kept because they are an ally of the prime minister”

• “Minister E is the political rival”

who can become a government minister

usually a mp or HoL member

so the actions of parliament are accounted for

what does collective responsibility mean

a legal limitation

ministers have to support government policy publicly if they are unable to do this they must resign

what is a payroll vote

MPs who have government positions/the government pay them/therefore should support government

theoretically government could have total dominance because everyone would agree 

cant have too large a government- expensive pay and creates confusion as to who is responsible for what 

what do MOSA and House of Commons disqualification act do

legally limit the size of the government

means there are backbenchers- who belong to the governing party but do not have a role in parliament

why does the majority of a government have such a huge role

if they disagree with something the government might lose authority

might even have to leave office

POLITICAL LIMITATION ON WHAT THE GOVERNMENT IS ABLE TO DO/WHAT LAWS PARLIAMENT CAN PASS

ministers/mps/peers

ministers- mostly mps some are peers who are in the HoL

anyone can be a peer so long as HoL appointment commission agrees if they have a seat for life

why are peers useful

• political ally

• expertise

• a peer from HoL might be desirably because they are part of the Crown in parliament

• bills are passed through HoL known as leader of the HoL

• “they explain proposed legislation to the house and answer its questions on government activity”

controversy with the ministers in the house of lords

advantage of having peers: seat for life even if government changes

no longer the party they support and can still vote against bills/ may taint new governent’s agenda

what is the salisbury convention

“should not vote against legislation that is part of an election manifesto but that is only a small subset of legislation a government may wish to pass”

solution to the above

ministers who are made lords should drop their peerage title

once they leave office

what are the three parts of the legislature

commons/lords/monarch who must grant assent before bill becomes law

judiciary 

• legal disputes are settled by judges who settle them

• from county up to supreme

• three legal jurisdictions “England and Wales, Scotland and Northern Ireland

differences in legal systems

scottish legal system allows not proven in criminal trials

property law is different in northern ireladn

different people lead each legal system eg. Lady Chief Justice of England and Wales

yet constitutional law sets out rules and principles that apply across all of the uk

but constitutional laws…

apply all across the uk

uk supreme court 

final court of appeal makes sure justices represent each nation 

relationship between the executive and the legislature

• key feature is that the two share personnel

• either Mps in HoC or HoL therefore the two are intertwined

• this is difficult- regarding how the constitution limits and grants power to executive

• legislature and executive interact all the time because government must have support of HoC

• however government can create secondary legislation and thus creates a separation of powers issue

forming a government

• after a general election and changes if even the same party is still in power

• 650s MPs are elected during an election into HoC each representing a location (constituency) which has been divided to have roughly the same population

• most of the MPs will belong to one party and then they will have more MPs and then leader of the party will get appointed by monarch to become prime minsiter to form a government

why would a prime minister choose to resign 

• do not want to contest in the next election 

• do not feel they can lead the country anymore

• lost support of HoC

• if in this situation the HoC is still majority of that party the new leader will be appointment 

how is a government formed after a general election

• a clear majority of MPs are in one party

• not a majority but one has more mps than the other

• number of MPs are equally spread out so in a vote would be split

• a clear majority is what normally happens

• not majority but one more than others - hung parliament will make an agreement with another part of the government (COALITION)

• or when its hung parliament you could just have one rule who has the support of the others

• equally split rare- still a hung parlaiment and either coalition or a confidence and supply agreement

what impacts the ability for government to pass laws/governing ability

how big it is 

despite the convention of collective responsibility not always will they vote for the same thing

UK’s constitution- held to account by votes, debates and other types of parliamentary accountability

on the UK politicla constitution

“holding those who exercise political power to account for the most part, through political processes and in politcal instittions” which is the consequence of the executive beign also part of the legislature

separating executive and legislature

• they have differnet roles in the creation of law and using it in everyday life

• Barendt prefers to think as separation of functions over powers

what does a working day of government ministers look like

• “prime minister can sit on HoC where they can vote and debate proposed legislation government policy”

• take part in debates about new laws, policies in order to represent the government’s positiona nd respond to criticism/support from others

• usually on the top of the bills

• prime minister will usually be arguing for a bill proposed government however vote is only one it must get the majority

executive work of a prime ministers

political meetings, urgent event of the day, range of decisions, legal powers used where appropriate, gove specific parliamentary duties eg. question time

only parlaiment can sack secretaries of state

prime minister/government ministers have legislative and executive duties

executive law making

• in some cases executive not the legislature will make the law

• secondary legislation is created by the executive through powers given by government “enabling provision”

• only crown in parliament can create primary legislation

• the two together does not clash with executive’s ability to create secondary legislation- primary law is changed through secondary legislation

secondary legislation and scrutiny

• delegated legislation is tricky because it does not receive parliamentary scrutiny due to the process that turns legislation into law

• parliament usually has to approve drafts for secondary legislation

• but in reality parliament does not have to scrutinise secondary legislation very carefully/less to say as to whether it comes into force

why is secndary legislation less scrutinised

• acts of parliament begin as a bill

• mps and peers can then review these bills (such as in readings in both houses of parliament) then vote before it moves forward

• secondary legislation - either accepted/rejected whilst there are processes they are usually through affirmative/negative procedure

affirmative procedure

• “both houses of parlaiment need to approve the delegated legislation before it becomes law” which si carried out by a small group of MPs, peers, and unlike primary not every single MP is onvolved

negative procedure

• law will come into force without any active approval unless there is an Early day motion

• where the object of it has been debated at once of the houses (which is normally 40 days and whilst the law can exist within that period, it can still be revoked)

stat about primary vs secondary legislation 

HoL spends 4.7% of its time on secondary legislatin

HoC spends only 0.5% (once there was a 22 second meeting)

amount of time spent is not proportionate to the huge amount of secondary legislation put out

what is a worry about making legislation

• skeleton bills where statutes are created with multiple powers to create smaller delegated legislations without a clear limit as to what the powers are used for

example of unclarity of limit of powers

• childcare act 2016

• powers to create provisions around free childcare

• Delegated powers and regulatory reform committee said there is lack of ingo about the new provisions- hence debate is not iformed

• secondary legislation- not drafted by the legislature but rahter the executive clearly because there is not enough scrutiny

what is such a power designed for

• an emergency situation like the pandemic

• must respond immediately with the ability to adapt however due to the lack of scrutiny people felt there was a ack of control over the laws and policies (In and out of parliament)
  

problems one might take with the constitution 

• laws are general

• creates criminal offences

• constrains individual liberty

• rules placed hours before enforcement and sometimes restrictions would be announced without legislation published until several days later 

• wording is unclear: “senior police officer said that he was unsure what the law was and how to enforce it”

judiciary’s role in all of this

judiciary has a role as they can invalidate delegated legislation thorugh judicial review often this wil be because delegated legislature di dmore than the parent stautte allowed it to do

why might one challenge the choices made by delegated legislation

irrational contents

disproportionate to the aim they are pursuing

executive might have breached procedural requirements

what is the henry viii clause

• executive that can pass a secondary legislation which effectively amends or repeals an existing statute (named after the very siimlar statute of proclamations 1539)

what are reasons for this clause

• if a statute has granted power to an institution and later it doesnt exist/changes name then the statute can be changed so that the successor can use the power

• allows government to meet obligations of international law

• respond to emergencies

• eg. section 10(2) of HRA 1988 means the executive may amend a statute so that it complies with ECHR

reasons against Henry VIII

• Act of Law primary law therefore only legislature can make it

• Henry vii destroys separation of pwoers since executive now has the power to change primary laws

• therefore it is argued that Henry VIII clause should only be used when strictly necessary

• this clause could amend legislation in a way that contradicts a stattue

• USED IN VERY SPECIFIC AND FEW SITUATIONS