Public: Separation of Powers

What are the three branches of state?

executive, legislative, judiciary

What type of constitution does the UK have?

Uncodified

What is the executive's role in making laws?

Government proposes primary legislation to be considered by Parliament and drafts secondary legislation

What is the legislature's role in making laws?

Parliament decides whether executive proposals become law. Individual MPs can also propose primary legislation (via Private Members' bills)

What is the role of the judiciary?

Interprets Parliament's intentions in making legislation and develops the common law

Who can create a new right in law?

Only parliament

Can a court's decision be ignored or set aside by anyone?

No, not even the executive

Can Parliament make or unmake any law?

Yes

What is the executive?

Executive functions are the residue of functions of government after legislative and judicial functions have been taken away

How are senior government ministers also MPs?

By convention

How does Parliament confer powers on the government?

By enacting primary legislation

What is primary legislation?

Acts of Parliament which contain provisions giving the executive power to make secondary legislation

What are statutory instruments?

rules and regulations made by government ministers under the authority of an enabling Act.

How must delegated or subordinated power be exercised?

Within (intra vires) the power granted (usually power is granted by primary legislation)

What is the Attorney General's job?

Sits in Cabinet as the chief legal adviser to the government

What is the Lord Chancellor's job?

Government minister with responsibility for the administration of justice, including the administration of the court system

What is the Supreme Court?

Established as an institution separate physically and in terms of its membership from Parliament

How are judicial appointments made?

solely to be based on merit and good character

How do judges hold office?

The hold office during good behaviour and may only be dismissed by the monarch following an address presented by both Houses of Parliament

Can full time judges sit in the House of Commons?

No they are disqualified from doing so

Can court inquire into proceedings in Parliament?

No they lack jurisdiction (parliamentary privilege)

What is judicial immunity from civil actions?

Judges are immune from legal proceedings for actions that would otherwise be tortious (e.g. defamation) if the actions are done in a judicial capacity. They would not be immune if they spoke to the media.

What is the purpose of judicial review?

1. Prevent abuse of power by the executive

2. Uphold individual rights

What if the executive reaches a decision which is wrong in law?

Decision may be quashed by the Administrative Court

What does judicial review examine?

Legality of decision - not its merits

When can judges scutinise proceedings in Parliament?

1. Act was inconsistent with EU law or is with retained EU law

If Act of Parliament is incomptabile with the ECHR the court may make a declaration of incompatibility

What is judicial respect for executive decisions?

Court generally does not trespass into matters of government policy - particularly on national security.

How has judicial review developed?

no power - whether statutory, common law or under the prerogative, is any longer inherently unreviewable

When may the courts intervene on executive decisions?

Courts hold back on imposing on the substance of policy decisions, but may intervene if the decision is without reason and not properly justified.

What is a devolved matter?

areas of government where decision-making has been delegated by the UK Parliament to a devolved administration

Who are all devolved laws subject to review by?

the Supreme Court

What is a reserved matter?

decisions still taken by Parliament in Westminster, even though they have effect in Scotland, Wales and Northern Ireland e.g. immigration, foreign policy

Who is responsible for fiscal policy and public expenditure across the UK?

HM Treasury

Once budgets have been allocated who decides how it is spent?

Devolved administrations are free to allocate spending

What is the Memorandum of Understanding 2012?

Series of non-legally binding principles which underlie relations between the administrations

Can the UK Parliament legislate on devolved matters?

Not normally without consent of the devolved governments but they can. Consent is via a Legislative Consent Motion. Sewel Convention applies.

What are the questions to consider regarding reserved matters?

1. Which of the devolved administrations is in issue?

2. What matter or area does the legislation concern?

3. Is the matter listed as a 'reserved matter' in the relevant Act?

4. If so, then legislation passed by the UK parliament will have legal effect in the devolved administration

If the matter is not deemed a 'reserved matter' legislation passed by the UK Parliament will still have legal effect in the devolved administration.

When can the state interfere with a person's qualified rights?

If it is prescribed by law, in pursuit of a legitimate aim and proportionate.

When 3 purposes require written notice to be given to hold a public procession?

1. to demonstrate support for or opposition to the views or actions of any person or body of person

2. to publicise a cause or campaign

3. to mark or commemorate an event

What is the minimum amount of notice that must be given?

6 clear days

When is a procession exempt from giving advance notice?

If it is procession held commonly or customarily or is a funeral procession.

When can the police impose conditions on a public procession?

If a senior police officer reasonably believes that:

- it may result in serious public disorder, serious damage to property or serious disruption to the life of the community

- noise generated may cause serious disruption

- purpose of the organisers it to intimidate others with a view of compelling them to do something/not do something

What can the senior police officer do?

Give directions imposing conditions on the organiser that appear to him necessary to prevent disorder

What are the requirements if a condition is imposed in advance of a procession?

Must be in writing and the senior police officer must give sufficient reasons for imposing conditions.

What if a person organises a public procession and fails to comply with a condition imposed?

Is guilty of an offence, but it is a defence for the person to prove that the failure arose from circumstances beyond his control. Can be imprisoned for up to 51 weeks or a fine not exceeding level 4.

What is a person takes part in a public procession and fails to comply with a condition imposed?

Is guilty of an offence, but it is a defence for the person to prove that the failure arose from circumstances beyond his control. Can get a fine up to level 4.

What is a person incites another to commit an offence?

Guilty of an offence. Can be imprisoned for up to 51 weeks or a fine not exceeding level 4.

What is the power to prohibit processions?

If a chief police officers reasonable believes that because of certain circumstances, the powers under s12 are not sufficient to prevent the public processions from resulting in serious public disorder.

How long can the order to prohibit processions be?

Not longer than 3 months and local authority needs consent from the Home Secretary. Local authority cannot themselves initiate a prohibition.

Does s13 apply to procession in London?

No. Instead a prohibition order can be made by the Commissioner of Police if they reasonably believe order under s.12 will not be enough to address concerns over serious public disorder

Can prohibition orders be challenged by applying for judicial review?

Yes but there is an unwillingness of the court to disturb operational decisions.

What is a public assembly?

A meeting of two or more persons in a public place that is wholly or partly open to the air. (Although there now is a one-person protest)

What are the requirements for a public assembly?

1. Purpose of the assembly is irrelevant

2. No obligation to give advance notice to the police

What are the conditions on assemblies?

If a senior police officer reasonably believes that:

- it may result in serious public disorder, serious damage to property or serious disruption to the life of the community

- noise generated may cause serious disruption

- purpose of the organisers it to intimidate others with a view of compelling them to do something/not do something

When can the police impose conditions on a public assembly?

If senior police officer believes it is necessary to prevent the risk of disorder, damage etc. It must be in writing. Police cannot make a prohibition order banning assemblies.

What about if there is intimidation?

Police can impose conditions on an assembly if the senior police office has reasonable belief that the organisers are intending to intimidate others. Intimidatory behaviour must be sufficient to compel.

What is a trespassory assembly?

consist of 20 or more people and is held at a place or land where the public has no right of access or only a limited right of access.

Do police have the power to prohibit trespassory assemblies?

YES

How can a trespassory assembly be prohibited?

If a chief police office reasonably believes the assembly

o Is likely to be held without the permission of the occupier of the land or to conduct itself in a way as to exceeds the limits of any permission of his or the limits of the public's right of access and

o May result

- In serious disruption to the life of the community or

- Where the land has historical, architectural, archaeological or scientific importance, in significant damage to the land, building or monument

What is a breach of the peace?

whenever harm is done or likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.

Is breach of the peace a criminal offence?

No but it generates police powers:

- arrest

-detention

- person bound over to maintain good behaviour and keep peace

- entering meeting to prevent anticipated breach of peace asking participants to disperse

Can the police use their common law powers to stop a public meeting?

Yes if it is feared a breach of peace was likely

What if there is no indiation of an imminent breach of the peace?

The police likely should not intervent as preventative actions must be proportionate.