Chapter 5 Self-test questions

The separation of powers is a theory that describes that way in which a state organises the ____________ of power and function between its different branches.

Different theorists have different views on what constitutes an effective separation of powers. Many traditional separation of powers scholars would agree on some but not all of the following propositions. Please select those that you consider to fall within the traditional view of the separation of powers.

The power to legislate, to govern and to judge whether the law has been broken should not be held by the same people.

The power to legislate, to govern and to judge whether the law has been broken should not be held by the same body or bodies.

The power to legislate, to govern and to judge whether the law has been broken should all be held by people who have been elected to perform those functions.

The power to legislate, to govern and to judge whether the law has been broken should not be held by bodies that are housed in the same buildings as each other.

Magna Carta 1215 is considered to be a landmark document as regards the doctrine of the separation of powers because it provides for an early forerunner of a Parliament to share all the powers in common with the King.

True

False

The Petition of Right 1628 is evidence for which of the following separation of powers propositions?

The courts must be independent of the executive branch of the state.

Parliament must no longer trespass on the King's power.

Parliament must become accountable to the people.

Parliament must give funds to the King so that he could run the country.

Please match the appropriate theories to the appropriate separation of powers schools of thought.

The need for a complete separation of the three branches of the state in relation to functions, bodies and personnel.

Some overlap of functions between the bodies so as to create checks and balances powers within the constitution. The theory suggests that this will reduce the ability of one body to have total freedom to operate without reference to another body.

Please match the theories to the appropriate schools of thought and theorists.

'The threefold division of labour between a legislator, an administrative official, and an independent judge, is a necessary condition for the rule of law in modern society and therefore for democratic government itself.'

'The essence, though not the whole, of separation of powers lies in the meeting of form and function; the matching of tasks to those bodies best suited to execute them. The core of the doctrine is not liberty, as many writers have assumed, but efficiency...'

Bagehot was of the view that the separation of powers demanded that the executive and the legislature be kept separate so as to allow for efficient government.

True

False

Which of the following are features of the Constitutional Reform Act 2005, and which it is argued strengthen the separation of powers in the UK? Please select all that apply.

Statutory recognition of the independence of the judiciary.

Reform of the office of Lord Chancellor.

Creation of the Supreme Court through a reform of the Appellate Committee of the House of Lords.

Removal of the majority of hereditary peers from the House of Lords.

In relation to the doctrine of separation of powers, cases such as Davis v Johnson and Pepper v Hart are often used as evidence that the courts do not have the power to question Parliament's self governing status or its legislative supremacy. But, what do the cases of M v Home Office and Bapio Action Ltd evidence in this context?

That the executive exercises control over Parliament even though the courts do not.

That Parliament exercises control over the executive, as MPs act as the electorate's representatives.

That in some limited circumstances, the executive is permitted to override a court ruling so as to ensure its ability to govern the country effectively.

That the courts will respect the executive's exercise of power as long as the power is exercised within the limits of the law; but court decisions are binding on the executive.

The development and use by judges of super-injunctions have been criticised in the context of the theory of the separation of powers. Please identify those key criticisms from the list below.

The independence of the judiciary cannot be guaranteed if we cannot know what decisions judges have made and the evidence that they have used to make them.

Parliament may not be able to call the executive to account if MPs and Peers are not able to discuss the content of injunctions taken out by the elements of the executive.

Privacy law is inconsistent with the separation of powers.

MPs may be undermining parliamentary privilege and the status of the independent judiciary by flouting super-injunctions and naming those who have taken out a super-injunction.

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