Monday, October 23, 2006

Separation of Power (note) - Public Law

Separation of Power – Examination tips

Introduction

Many examination answers fall down because candidates simply recite the doctrine of separation of powers and proceed to give examples of how the British constitution observes the separation of powers or disregards it. Hence the role of the Lord Chancellor as a member of all three branches of government is cited as evidence that the British constitution pays only lip service to the doctrine. Similarly candidates cite the fact that ministers are members of the legislature that the Law Lords sit as members of the legislature in the House of Lords and that tribunals being part of the executive determine disputes as to the law.

Such an analysis is hopelessly unsophisticated as it fails to address the key underlying issues. First, it has to be stressed that breaches of the doctrine may not be important if there are effective checks and balances in place. Hence, a key aspect of the doctrine of the separation of powers is the application of judicial reviews, whereby the courts can rule on the legality of executive action. A more reflective analysis will be to reveal that some breaches of the separation of powers have a positive virtue. Ministers who are members of the legislature are more easily accountable to MPs; Law Lords sitting in the legislature can contribute to law reform measures; tribunals may be more effective, quicker and cheaper than courts of law in determining disputes in specialist area.

Similarly, in Royal prerogatives, Judicial reviews serves as the check and balances to ensure that executives (ministers do not abuse their powers.

(Read chapter 6.9 on Judicial Review in ELS Gary Slapper (page 236-257; 6th. Edition) and use the illustrations and cases cited there to illustrate the way courts had kept the check and balance to mitigate on executive abuses.

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