Political Background and separation of Powers Katarzyna Gromek

Political Background and separation of Powers Katarzyna Gromek Broc

A) Political background and separation of powers B) Role of the courts and judges C) Tension between Parliament and the courts

A: Political background Ca you give examples of forms of governance? … and in the UK?

Political background What does it mean to be democratic? democracy

Political background What forms of governance do you know? democracy Representative democracy

Political background What forms of governance do you know? Representative democracy Legislative and executive bodies are expression of the will of the people through free election and elected government represents the interests of all people through elected representatives

Political Background Ø Any problems with representative democracy within the UK system? Any limitations? Representative democracy in the UK

Political Background Ø Any problems with representative democracy within the UK system? Any limitations? Representative democracy in the UK Monarch, the House of Lords and Judiciary are unelected Government lacks of transparency, disposes Powers coming from the Monarch that do not Necessitate parliamentary approval (Royal Prerogative) Undue influence of the civil service on the Government decision-making

The separation of powers Ø What is its purpose?

The separation of powers Ø What is its purpose? It protects democracy, liberty avoiding tyranny ● Indispensable for the organisation of the State, and the Constitution ● It prescribes the appropriate allocation of powers, the limits of those powers to differing Institutions ●Ideally, there should be a clear demarcation line between the legislative, the executive and the judiciary ● none of them should have excessive power and there should be a system of checking if a correct balance is maintained between those three bodies

The separation of powers The idea was designed to ensure that functions, personnel and powers are not concentrated in one body in order to avoid abuse of power to protect the rights and liberties of the citizens.

The separation of powers Montesquieu argued that, ‘there can be no liberty and there would be an end of everything ‘if the legislative, executive and judicial powers of government were to be exercised by the same person or authority’

The separation of powers Ø Problem with Parliamentary democracies: It is hard to say that they have distinct separation of powers. (weak, limited, or fusion of powers) Ø The executive (often a prime minister) and the Cabinet ("government") are drawn from the legislature (parliament). Ø UK: a system of checks and balances which ensures that powers are not abused.

The separation of powers Ø The executive formulates policy and it is responsible for its execution. Crown Government Civil service, Armed forces And police

The separation of powers Ø The legislature Ø Parliament comprises the Queen, House of Lords and House of Commons. All Bills must be passed by each House and receive the royal assent. Ø The House of Lords not elected and not accountable to the electorate. Ø In contrast House of Commons is directly elected

The separation of powers Ø The judiciary Ø The judicial independence is of crucial importance in relation to government according the law and in protection of citizens’ liberty against the executive. Ø Constitutionally judges are subordinate to Parliament and have no power to challenge the validity of Act of Parliament.

Separation of Powers The executive overlaps with the legislature, (the Prime Minister, the chief executive, must by convention be a Member of the House of Commons. Judiciary also overlapped with legislature till 2009: the Law Lords, final arbiters of judicial disputes, sit simultaneously in the House of Lords, the upper house of the legislature, The head of the judiciary till 2009 (the Lord Chancellor was a member of all three branches of government (was Cabinet Minister): he is a member of the House of Lords This ceased in 2009 when the Supreme Court of the United Kingdom came into existence.

Principal overlaps Ø Personnel: Ø Government ministers sit in House of Commons (95), others in House of Lords Ø Functions: Ø Government ministers direct the activities of central government, exert control over timetable, business and legislative output, the government legislates in form of regulations (Order in Council)

Checks and balances Ø Limitation on the executive Ø - ministers by convention are forced to resign Ø - control over government ministers: review of the delegated legislation by the courts vie ultra vires Ø Ministers respond to electorate Ø The House of Lords retains the power to veto any Bill purporting to extend the life of Parliament

Checks and Balances Ø Limitations on Parliament Ø Parliament is not a unified body: cooperation and compromise between political parties Ø The Composition of House of Commons is determined by electorate Ø Acts of Parliament are subject to judicial interpretation

Checks and balances Ø Judiciary Ø Judicial decisions may be modified and rendered ineffective by legislation Ø Potential dismissal of a judge resides in Parliament (both Houses) Ø Magistrates, circuit judges, High Court and Court of Appeal are disqualified from the membership in the House of Commons Ø By convention, House of Commons does not criticise judges.

Checks and Balances Ø Judiciary: Ø Judges are immune from all civil liability in respect of what was said in the Court Ø By convention judges do not participate in political activities and do not express publicly their views

The Judiciary: Judges as legislators Ø One of the most debatable question related to the relationship between the legislature and the judges is: ‘Do judges make law? ’

The Judiciary: Judges as legislators Ø Constitutional Law: the question is whether by creating the law either by interpretation of statutes or through the doctrine of precedence, the judges are appropriating the legislative function, violating the separation of powers?

The Judiciary: Judges as legislators Judges’ function is to interpret legislation in line with the intention of Parliament and to contribute to the development of the common law (judge made law). Ø The previous cases (precedence) should guide judges in making their decisions. Law that has been developed by judges in this way is called Common Law as opposed to Statute Law (laws passed by Act of Parliament) Ø

C: Tension between Parliament and the courts Ø In the centre of the supremacy debate is the Relationship between courts and Parliament. Ø Supremacy of parliament excludes judicial review of primary legislation.

C: Tension Parliament/ Courts Parliament’s view: Ø Judges should be wary of substituting their own judgements of morality for those of ministers or officials who enjoy discretionary powers conferred by the elected majority. Ø Judges’ view : rights based approach Ø The common law is not totally subservient to the will of Parliament but there are higher constitutional values and rights which require the protection by the courts. Ø

Conclusion Role of the judiciary has expanded Ø Judges have great scope to develop principles of democracy, good governance Ø Increasing powers granted by Parliament which confirmed the constitutional role of the courts Ø Judges are subtly altering the constitutional balance becoming co-equal with Parliament. Ø

Ø Follow-up task Ø Can you read a note on Magor and St Mellons RDC [1952] case?