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Explain Montesquieu's Doctrine of the Separation of Powers.
- Montesquieu divided government into three branches, these are 1.) Legislature 2.) Executive and 3.) Judiciary. The legislature makes the laws, the judiciary settles disputes and imposes sanctions for breaking the law, the executive enforces and puts the law into effect. Montesquieu's idea of limits on power were what he called 'Dissonant Harmony', and he believed that 'power must be checked by power'.
- Montesquieu also insisted on a separation between class interest as another kind of check and balance. This reflects the idea of Aristotle's 'mixed constitution'. Montesquieu also believed that all three elements of the mixed constitution should be represented in the legislature since this was the supreme body.
What was Blackstone's idea of the 'mixed constitution'?
- This concerned the separation between class interests. The three groups were the crown, the aristocracy (an educated and independent class who would protect freedom and curb the democratic element) and the people. Blackstone said that 'in the legislature the people are a check on the nobility and the nobility a check upon the people, while the King is a check on both.' Nowadays however, the crown and the aristocracy (as represented by the House of Lords) are relatively impotent.
- Instead of having rigid distinctions, it would be better to have a system of checks and balances.
What are the key components of the Executive?
- These are;
- 1.) Cabinet
- 2.) Prime Minister
- 3.) Lord Chancellor
What are the key components of the Judiciary?
- These are;
- 1.) The Law Lords (now the Supreme Court)
- 2.) The High Court
- 3.) The Court of Appeal
- 4.) Magistrates Court.
What do Ewing and Bradley argue is the critical aspects of the Separation of Powers doctrine in the UK's constitution?
- They say the characteristics of the doctrine are that;
- 1.) The same person should not form part of more than one of the three organs of government. (Although this does not hold true in our system)
- 2.) One organ of government should not interfere in the work of another.
- 3.) One organ should not exercise the functions of another.
What is the importance of the M v Home Office (1994) case?
The decision of the court was to examine the process by which judges review ministers.
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