Democracy, tyranny, convention, checks and balances, separation of powers

b) Use the above words and word combinations in the following sentences; translate the sentences:

1. The dispersal of power has another dimension, in the shift from representative to direct and deliberative … , with more petitions and citizens’ juries; referendums on constitutional issues such as Lords reform and the British bill of rights; and the use of constitutional … or citizens’ assemblies to draft a bill of rights or written constitution.

2. There is a greater … , and the judiciary constrains legislative and executive freedom by means of interpreting the statutes.

3. In the space of ten years the Westminster Model, formerly held up as the ideal type of unfettered majoritarian government, has seen the introduction of a whole series of new … to reduce the power and discretion of the executive.

4. Westminster Model represents the ‘old’ constitution as it was 10 or 20 years ago, with a highly centralised system of government, little or no devolution and very few … on the unfettered executive.

5. Members and supporters of governments, who naturally feared rebellion more than … , claimed that Parliament's authority was legally unlimited, while their opponents, who were more fearful of … , denied that claim in order to emphasize Parliament's subjection to higher principles.

6. Like inquiries or royal commissions, watchdogs do not fit neatly within a traditional executive-legislative-judicial “ … ” model, though they have complex operational and institutional relationships with, and across, these three branches.

7. It would be impossible to construct a workable system of “ … ” in which every institution was subject to limits that were fully enforceable by some other institution.

8. Not only was local government virtually ignored in the national press, but there was virtually no coverage of the debates in Scotland which led to the Constitutional … of the late 1980s.

9. Good books have argued that the post-war role of the civil service was a fluke – a particular, temporary, British way to combine oligarchy with … by delegating the powers of elected governments to unelected groups of elites.

10. The horrors of the Civil War seemed to confirm the sixteenth century teaching that … was preferable to anarchy.

11. Representative … is now under pressure from direct … , at the same time as the conventional broadcast and print media are being challenged by the internet and other forms of new media.

12. There is no agreement on when a referendum should be held. Britain has only had one nationwide referendum, in 1975, on whether to remain in the then European Community, but, just as with subsequent pledges to hold one, the decision was determined by political circumstance and expediency, not by clear-cut principles or a constitutional ….

13. The distinction between legality and constitutionality was perpetuated by Austin and Dicey, and survives today in the language of constitutional “ … ”.

14. Greater constitutionalism is evidenced in greater … and in the growing transfer of functions from elected politicians to unelected bodies.

15. Greater … is clearly visible in the much sharper separation of the judiciary from the other branches of government, through creation of the new Supreme Court, and replacement of the Lord Chancellor by the Lord Chief Justice as head of the judiciary.

16. It would be surprising if a bill in the Governance of Britain package did not adopt the basic formula of trying to restore faith in … by promoting independent regulators and transparency.

17. According to Franklin, those who defended a right of popular rebellion against … almost always meant a collective right of the community as a whole, exercisable only by its representative institutions.

18. In Britain, senior legal officials have long denied that the judges have authority to enforce the moral principles and constitutional … that are thought to bind Parliament.

19. The ‘‘nonjusticiability of a political question is primarily a function of the … .

 

TASK V    Use the text to explain what the following phrases mean:

1. …. If any two of these fall into the same hands there is a risk of tyranny.

2. … conventions were beginning to blur the distinction between legislature and executive.

3. …executive decisions can be challenged in the courts on the ground that the government has exceeded or abused its powers.

4. The checks and balances principle features strongly in the USA.

 

TASK VI  Explain the separation of powers principle as it was understood by:

a) Aristotle;

b) Montesquieu;

c) The authors of the US Constitution.

TASK VII a) Describe how the system of “checks and balances” operates in:

1) the USA

2) the UK

3) your country

TEXT 6 THE SEPARATION OF POWERS IN THE UNITED KINGDOM.

The separation of powers has influenced the development of the UK constitution in a pragmatic, unsystematic way, although its high watermark may have been the eighteenth century when Blackstone wrote:

“herein indeed consists the true excellence of the English government that all the parts of it form a mutual check upon each other. 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 upon both which preserves the executive power from encroachments. And this very executive power is again checked and kept within due bounds by the two Houses ... For the two Houses naturally drawing in two directions of opposite interest, and the prerogative in another still different from them both, they mutually keep each other from exceeding their proper limits ... like three distinct powers in mechanics, they jointly compel the machine of government in a direction different from what either acting by itself would have done ... a direction which constitutes the true line of the liberty and happiness of the country.”

Blackstone considered that Parliament was legally unlimited but believed that the common law as representing principles of reason restrained Parliament in practice. In the eighteenth century this seemed plausible since Parliament and the legal profession found common ground in the support of property rights.

Even in the eighteenth century the ideal was diluted by the realities of politics. There was considerably less tension between the Lords and the Commons than Blackstone suggested. The ethos of both was aristocratic. A different balance was produced by the extension of the franchise during the nineteenth century. This led to the collapse of the monarchy as a political force, the weakening of the House of Lords and the emergence of a governmental system based on a powerful party political executive supported by the machinery of a professional civil service. Some modern commentators have therefore concluded that the separation of powers has little meaning today because the legislature is dominated by the executive.

 Dicey did not deal specifically with the separation of powers but implicit in his notion of the rule of law is the concept of an independent judiciary as a safeguard against both Parliament and the executive. Dicey regarded the strict separation of powers as applied in France, where government action is reviewed by a special administrative court rather than by the ordinary courts, as contrary to the rule of law. However the rule of law does not require any particular kind of court. The French Conseil detat has been widely admired as a check on government and has been copied in many countries.

 

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