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Anastasia Rendle

on 15 October 2012

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Transcript of SoP

Pepper v Hart - "the purposive approach" Separation of Powers Requires separation of the 3 branches of government:
Legislature, Executive, Judiciary

Montesquieu: SoP to promote liberty; provide a check on power SoP The extent of SoP in UK Kavanagh's arguments against:
- Effectively gives executive power to make law - const. prohibited
Judiciary accepts ministerial statements as a proxy for the intention of Parliament. Allows Ministers to specify the details of statutory meaning not incorporated into the act. Case Study: Pepper v Hart Pure or partial conception?
Partial - providing checks, balances and restrictions upon power

Purposive approach seeks the true meaning of what Parliament said. A clarification mechanism, not an intervention upon powers of each branch. Is she right to be concerned? Hilaire Barnett:
"The doctrine of the separation of powers 'runs like a thread throughout the constitution of the UK." Is the UK constitution compatible enough with the separation of powers doctrine? "When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty...there is no liberty if the powers of judging is not separated from the legislative and executive...there would be an end to everything, if the same man or the same body...were to exercise those 3 powers" Executive & Legislature: "a close union, a nearly complete fusion" Bagehot
Delegated legislation by executive
Government's (executive) power within Parliament (legislature)

Judiciary & Legislative
Applying or interpreting and creating "new" law?
Policy decisions & judge-made law
R v R martial rape
S3(1) HRA - courts modifying legislation so it promotes convention rights
Ghaidan v Godin Mendoza Overlaps of Personnel
Cabinet/PM/Parliament fused 'Pepper v Hart and matters of constitutional principle'
- Aileen Kavanagh - Weakens judicial function & independence
Constitutional choice that Parliament may only construe their laws via enactment of legislation. Legislature role should end with enactment.
Should not make AND interpret (by delegating this to the executive.)
Interferes with interpreting role of the judiciary.

- Uses Parliamentary material as authoritative, not just contextual information. Montesquieu Case Study: Pepper v Hart Executive Judiciary Legislative (cc) photo by medhead on Flickr Case Study: Pepper v Hart Consequences of Pepper v Hart:

Enables judiciary to use Hansard and rely on statements made by ministers or promoters of the bill to assist with their interpretation. Sir Ivor Jennings:
SoP suggests that neither branch should execute the powers of the other, not that the three branches should not have any influence over each other. Recent interest & improvements regarding SOP

Constitutional Reform Act 2005 and HRA 1998

Removal of Law Lords from sitting in both House of Lords in Parliament and in the judiciary. Creation of the Supreme Court.

Changed role of Lord Chancellor, once present in each branch

Reduced role of the Secretary of State (executive) regarding determining tariff of life sentences The extent of SOP in UK 2
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