Transcript Judiciary

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
 Any
problems with representative
democracy within the UK system? Any
limitations?
Representative democracy in the UK
Political Background
 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
 What
is its purpose?
The separation of powers
 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
 Problem
with Parliamentary
democracies: It is hard to say that they
have distinct separation of powers. (weak,
limited, or fusion of powers)
 The executive (often a prime minister)
and the Cabinet ("government") are
drawn from the legislature (parliament).
 UK: a system of checks and balances
which ensures that powers are not abused.
The separation of powers
 The
executive formulates policy and it is
responsible for its execution.
Crown
Government
Civil service,
Armed forces
And police
The separation of powers
 The
legislature
 Parliament comprises the Queen, House
of Lords and House of Commons. All
Bills must be passed by each House and
receive the royal assent.
 The House of Lords not elected and not
accountable to the electorate.
 In contrast House of Commons is directly
elected
The separation of powers
 The
 The
judiciary
judicial independence is of crucial
importance in relation to government
according the law and in protection of
citizens’ liberty against the executive.
 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
 Personnel:
 Government
ministers sit in House of
Commons (95), others in House of Lords
 Functions:
 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
 Limitation
on the executive
 - ministers by convention are forced to
resign
 - control over government ministers:review
of the delegated legislation by the courts
vie ultra vires
 Ministers respond to electorate
 The House of Lords retains the power to
veto any Bill purporting to extend the life of
Parliament
Checks and Balances
 Limitations
on Parliament
 Parliament is not a unified body:
cooperation and compromise between
political parties
 The Composition of House of Commons
is determined by electorate
 Acts of Parliament are subject to judicial
interpretation
Checks and balances
 Judiciary
 Judicial
decisions may be modified and
rendered ineffective by legislation
 Potential dismissal of a judge resides in
Parliament (both Houses)
 Magistrates, circuit judges, High Court and
Court of Appeal are disqualified from the
membership in the House of Commons
 By convention, House of Commons does
not criticise judges.
Checks and Balances
 Judiciary:
 Judges
are immune from all civil liability in
respect of what was said in the Court
 By convention judges do not participate in
political activities and do not express
publicly their views
The Judiciary: Judges as
legislators
 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
 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).
 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)

C: Tension between Parliament
and the courts

In the centre of the
supremacy debate is
the Relationship
between courts and
Parliament.

Supremacy of
parliament excludes
judicial review of
primary legislation.
C: Tension Parliament/ Courts
Parliament’s view:
 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.
 Judges’ view : rights based approach
 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.

Conclusion

Role of the judiciary has expanded
 Judges have great scope to develop principles
of democracy, good governance
 Increasing powers granted by Parliament which
confirmed the constitutional role of the courts
 Judges are subtly altering the constitutional
balance becoming co-equal with Parliament.
 Follow-up
task
 Can you read a note on Magor and St
Mellons RDC [1952] case?