CONSTITUTIONAL AND ADMINISTRATIVE LAW - LAW LLB (Full Notes for All Topics)
Full notes on Chapter 19: Human Rights & the UK Constitution, Public Law (Elliot & Thomas, Oxford, 2020)
Full notes on 'Chapter 6: The UK Parliament', Elliott & Thomas, Public Law textbook (4th ed, 2020, Oxford
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Constitution And Administrative Law (LAW1220)
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20/10/21
Elliott & Thomas, Public Law (4th ed, 2020, Oxford) chapter 4 (separation of powers)
Three branches of government
Legislative branch = represents the view of the people and make legislation; body is Westminster
with devolved assemblies in SCO, WAL and NIR; holds the executive into account; adversarial party
politics; customs and practices of Parliament; doctrine of parl. sov.
Judicial branch = courts, tribunals; system of law interpretation; adjudicates upon legal disputes;
appointed judges; judicial independence; rule of law; reviewing legality of government decisions;
precedent; statutory interpretation; sometimes considered as the weakest branch
Executive and administrative branch = government; makes and implements public policies; right of
initiative; raising and spending public money; public safety; cons. conv.; ‘elective dictatorship?’ (a
dictator would adapt the system in a way to enable him to act without interference)
3 branches not confined entirely to UK level => devolution and sub-levels
Basic idea of separation of powers
Separation of powers doctrine = distinction of 3 separate branches; no branch should be able to
exercise the powers of another and that no individual person should be a member of more than one
branch; this is an idea/model/template
View that government should be organised in line with the separation of powers doctrine is not one
that is universally held; failure of a country to fully implement the doctrine is not necessarily a bad
thing
Why separation of powers?
If all three branches were merged => Ministers (executive) were to desire legal powers to do certain
things => ask legislature to confer such powers (accept/decline/provide them on leg’s terms);
inevitable risk of power abuse; ‘Power tends to corrupt and absolute power corrupts absolutely’
(Lord Acton)
No safeguard against abuse of power = all 3 branches may be prepared to collude in abusing it;
system of checks and balances; assumption that the liberty of the individual against inappropriate
governmental interference must be preserved
Primary purpose = not preventing the govt from doing bad things, but helping it to do beneficial
things (e.g. securing communal and individual liberty by ensuring that any given function is allocated
to the institution best capable of discharging it
Objectives = prevention of tyranny and facilitation of socially useful conduct by government =
mutually exclusive
Democratic bolster = significant changes to law and policy can be made only with the approval of
the branch that is the most representative of the people
Different conceptions of the separation of powers
The dividing lines between the legislature, executive and judiciary must be crystal clear and must
not be crossed in any circumstances (pure version of doctrine of parliamentary sovereignty)
Partial version of doctrine = arrangements that would be regarded as breaches of the pure version
are not regarded as either inherently problematic or illegitimate; rather, the acceptability of any
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