02, Separation of Powers PDF

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Sep of powers...

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Separation of Powers

‘When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty…. There is no liberty if the powers of judging is not separated from the legislature and the executive… there would be an end to everything if the same man or the same body were to exercise those three powers.’ Montesquieu (1748) ‘It is highly necessary for preserving the balance of the constitution, that the executive power should be a branch, though not be whole, of the legislature. The total union of them, we have seen, would be productive of tyranny; the total disjunction of them for the present, would in the end produce the same effects, by causing that union, against which it seems to provide. The legislature would soon become tyrannical, by making continual encroachments, and gradually assuming to itself the rights of the executive power.’ Blackstone (1765) ‘Whatever overlap there may be under constitutions on the Westminster Model between the exercise of executive and legislative powers, the separation between the exercise of judicial powers on the one hand and legislation and executive powers on the other is total or effectively so. Such separation based on the rule of law, was recently described by Lord Steyn as ‘a characteristic feature of democracies’ Per Bingham LJ in DPP of Jamaica v Mollison [2003] UKPC 6

Parliament (i)

What is Parliament?

Parliament is the forum where the exercise of government is publicly displayed and is open to scrutiny and criticism. Michael Ryle in ‘The Commons Today’ 1981 -

(ii)

Makes new laws Provides personnel for government Legitimises government actions Subjects matters of public policy to scrutiny and influence

Bicameral Parliament

House of Commons -

650 MPs Including the Speaker of the House (Sir Lindsay Hoyle)

House of Lords -

797 Lords 87 hereditary peers 684 life peers 26 bishops

Relationship- House of Commons and House of Lords -

House of Commons (elected House) House of Lords (appointed, with some hereditary peers) Primacy of the Commons recognised in 1. Statute (Parliament Acts 1911 and 1949) 2. Constitutional Convention Salisbury Convention Financial Privilege of the Commons Lords do not usually reject or object to secondary legislation

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The relationship is important in scrutiny of government action and as such the composition of the Lords is important Life Peers- is the main membership from the House of Lords Reform Act 1999 Reflecting society? House of Lords Reform Act 2014 Provides for formal resignation from the Lords Removal in respect of non-attendance or if a serious criminal conviction Peers receive no salary but do receive a ‘daily allowance’ for the days on which the house sits. Should the House of Lords be reformed? Did reform change the political balance in the Lords Initially post 1999 ‘conservative and Labour peers have held broadly similar number of seats No longer dominated by a single party Balance held by cross benchers Number of crossbenchers similar to party peers

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Functions- can be grouped as -

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Legislative (main functions) Taxation, finance (Commons only) EU Law scrutiny Protection of Human Rights Scrutiny of executive action, policy and administration

No judicial function- narrow quasi-judicial function- exception. The commons enforces Parliamentary Privilege.

Parliament- Rules, Privileges and Accountability (i)

Statutes informing the working of Parliament Bill of Rights 1689 Parliament Acts 1911 and 1949 Human Rights Act 1998 Fixed Term Parliament Act 2011

Parliamentary Rules and Procedures

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Standing Orders (written rules) Written guidance Tradition and Custom Constitutional conventions

Holding Parliament to account: Democracy Representative -

Fixed Term Parliaments Act 2011 Elections every 5 years Elections can be held early if a motion is agreed by two thirds of the house or if a motion of no confidence is passed and there is no alternative government within 14 days. To what extent is Parliament representative of the population?

Participatory -

Elections- the extent to which citizens engage Prior to 1832 the right to vote was limited (based on property owners) 1928- women receive the right to vote on the same basis as men Representation of the People Act 1983 (amended 1985 and 2000) Referendums E-Petitions

Holding Parliamentarians to account -

Elections Select Committee on the Standards and Privileges Parliamentary Commission for Standards Code of Conduct for MPs (Lords and Commons have their own) Parliamentary Standards Act 2009 Same seven principles of behaviour as for ministers Selflessness, integrity, objectivity, accountability, openness, honesty, leadership

Limitations on accountability to ensure functioning of Parliament Parliamentary privileges -

Freedom of Speech within Parliament Article 9 Bill of Rights 1689 A v UK (2003) 36 EHRR 51 Pepper v Hart (1993) 1 All ER 42 Freedom from arrest within parliament (call for removal) Parliament provides for its own composition Regulates its own proceedings.

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R v Chaytor (2010) UKSC 52

If a matter falls within the parliamentary privilege then the courts have no jurisdiction. There was a determination of whether a matter falls within parliamentary privilege is based upon the question of whether it is an area which is necessary to allow parliament to function. This is a necessity and functionality test. Parliamentary privilege in this case did not prevent a review of members expenses. Prosecutions were possible

Parliament in the constitution -

Parliament and the Executive The Executive is drawn from Parliament Executive is drawn from the majority party in the commons Some members of the House of Lords may also be in the cabinet

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Parliament is not subject to external judicial control Parliamentary privilege Prevents interference from outside bodies Parliament is responsible for regulating its own proceedings

Debates Advantages -

Ministers must explain and justify policies of departments Opposition have the opportunity to question policies Mechanism for a variety of views to be expressed and publicised Mechanism for local/constituency based issues to be raised...