Lecture notes
Answering problem style question on separation of powers
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- Aston University, Birmingham (Aston)
Answering problem style question on separation of powers
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Sop problem question structureIntro
Sop is unique, equal, separate and political doctrine
Montesquieu believed the SoP was to preserve liberty and prevent the abuse of
state power by distributing it amongst the different branches of government.
Uk unwritten constitution- soft v Us written constitution- rigid
Historically all power was in the hands of the Monarch which allowed them to abuse
their power. But now it’s now largely symbolic so doesn’t impact on the overall
division of power within the state.
Now power has been divided between a number of key ‘organs of state’. They
oversee each other and have to work together to achieve their objectives. This
serves to stop abuse of power by any member of the state.
Main body
◐ E and L
- Bagehot (1876)- ‘nearly complete fusion’ of the legislature and executive. So
there’s least SOP as there is large overlap.
-Our electoral system is the main reason why the executive dominate the legislature.
Causes an imbalance between powers because it creates an ‘in-built’ majority for the
party which wins and forms the government in Parliament.
-Delegated legislation- the executive can pass whatever legislation they want
without going through Parliament (BREXIT!!!- R v Miller). E thinks they don’t need to
obey the law because they are dominant but they forget RoL applies to them too
(nobody is above the law)
-The E had an old power to dissolve Parliament (now gone Fixed-Term Parliaments
Act (2011))
-Votes of no confidence- As a parliamentary motion, it demonstrates to the head of
state that the elected parliament no longer has confidence in the appointed
government. If a no confidence motion is passed against an individual minister they
have to give their resignation along with the entire council of ministers (1979 Labour
Government)
-Limiting the number of ministers in HoC to 95 (s.2 House of Commons
Disqualification Act (1975))
-Fire Brigades Union (1995)- This case prevented the executive acting contrary to
the legislature. The Home Secretary acted unlawfully and ignored the act altogether.
-Congreve v Home Office (1976) (the powers of the executive)
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