4 - Legitimacy Seperation of Powers, and the Rule of Law

Question 1

The Rule of Law, Dicey

Answer 1

1. No man is punishable excpet for a distinct breach of the law
2. no man is above the law
3. The general principles of the constitution are a result of judical decisions

Question 2

Why the Rule of Law?

Answer 2

1. Government is prevented from exercising arbitary power
2. the Govt can be held accountable for its actions through judicial review
3. The law is clearly set out for all and is made properly
4. Equality before the law
5. Equal Access to the law
6. Citizens have means of a legal redress
7. Judicial Independence

Question 3

Rule of Law - Lord Bingham

Answer 3

1. Law must be acessible, clear and predictable
2. Legal right and liability should be resolved by applying the law
3. Laws of the land should apply equally to all
4. adequate protection of Human Rights
5. Means must be provided for resolving civil disputes
6. Ministers must exercise the powers conferred on them reasonably
7. The state should provide fair procedures
8. The state must comply with international law

Question 4

Case: R (UNISON) v. Lord Chancellor (2017)

Answer 4

facts - (judicial review) the trade union challenged Fees Order on their access to justice

Held, Lord Reid - the right of access to the courts is inherent in the rule of law - ensures that the courts are able to apply and enforce the laws created by Parliament and the common law by the Courts. the people must have unimpeded access to the law

Question 5

Case: R v. Secretary of State for the Home Dept, ex p. Simms (1999)

Answer 5

Lord Steyn affirmed parliamentary sovereignty by stating that Parliament can, if it chooses to do so, legislate contrary to fundamental principles of human rights.
The legality principle requires Parli to confront what it is doing and accept the political cost

Question 6

Case: R (Corner House Research and Another) v. Director of Serious Fraud Office (2008)

Answer 6

Facts - SFO halted an investigation into the corryption of a company engaged in Arms trading with S.A. after a trheat to end coop in counter terrorism initatives

Held - on appeal, the HoL stated that the Director acted lawfully in deciding the public interest in pursuing an important investigation into alleged brigery was outweighed by the public interest in protecting the lives of British citizens.

Question 7

Seperation of Powers

Answer 7

There is NO formal seperation of powers under the UK constitution

• legislature (parliament) –> makes the law
• executive (government) –> implements or administers the law
• judiciary (courts) resolves disputes about the law

Question 8

Checks and Balances

Answer 8

one branch can be kept in check by other branches, resulting in a ‘balance of power’ between the different branches

“a clear demarcation of personnel and functions”

Question 9

US Case - Marbury v. Madison

Answer 9

Held - The S.C. affirmed the doctrine of judical review, establishing the courts’ authority to declare unconstitutional acts (can strike down statutes)

Question 10

The UK has…

Answer 10

an INFORMAL system of checks and balances and a PARTIAL seperation of powers

Question 11

Executive branch personnel…

Answer 11

Monarch, PM, and other government ministers, civil service, police and armed forces

central government - monarch, governmet ministers, and members of the civil service

Question 12

Legislative personnel…

Answer 12

Monarch, HoL and HoC

Question 13

Judicial Branch…

Answer 13

monarch, all legally qualified judges, magistrates

Question 14

Executive and legislature relationship

Answer 14

• crit. as being a elective dictatorship because when elected, the government can act as it pleases

It’s because…
- inbuilt one party majority in HoC most MPs in HoC are members of the political party that forms the govt.
- Bills are usually introduced by government ministers, and passed because majority are one the governing party
- high pressure on MPs to support bills
- Henry VIII powers - Govt can amend or repeal primary legislation by way of delegated legislation
- HoL is weak compared to HoC - no keep in check

Question 15

Parliament scrutnizing executive

Answer 15

• debates
• questions
• general and select committees
• MPs may reject govt bills

Question 15

Individual Ministerial responsibility

Answer 15

Ministers are responsible to Parliament both for the running and proper administration of their respective departments and their personal conductCo

Question 16

Collective Cabinet Responsibility

Answer 16

Cabinet is respinsible to Parliament for the actions of the Govt as a whole and must retain confidence of the HoC

Question 17

Relationship between Executive and Judiciary

Answer 17

Judicial Independence
- Appointment by Judicial Appointments Commission - politically impartial and free from executive control
- tenure - dismissed after a vote of both HoP
- Immunity from Civil action
- Constitutional Convention - executive does not criticise judicial decisions
- sub-judice rule - parliament refrains from dsicssing matters currently being heard or waiting to be heard by the courts

Question 18

Constitutional Reform Act

Answer 18

• Lord Chief Justice now head of the Judiciary
• created impartial judical appointments commission
• created the Supreme Court to replace the Judicial Committee of the HoL

Question 19

Judiciary holds the Executive to account…

Answer 19

• using judicial review
• executive derives its power from statute and the royal prerogative.

Question 20

Case: R(Miller) v. The Prime Minister, Cherry v. AG for Scotland (2019)

Answer 20

courts willing to take a wide approach in analysing the extent of prerogative powers.

about the extent of the prerogative power - the power to porogue was limited by the constitutional principles with which it would otherwise conflict

The exercise of the power was unlawful as, without reasonable justification, it frustrated or prevented Parliament’s ability to carry out its constitutional functions.

Question 21

Case: CCSU v. Minister for Civil Service (1984)

Answer 21

facts - CCSU asked the courts to review the decision of the minister for the civil service to prhibit staff from being members of a trade union.

held - the minister’s decision had been prompted tby concerns about national security and the minister had been entitled to act as she did.
**the exercise of prerogative powers was not automatically immune from the judicial review process

Question 22

Non Justiciable Prerogative Powers

Answer 22

• making intl treaties
• control of armed forces
• defence of the realm
• dissolution of parliament
• mercy
• publich honors

Question 23

R v. Secretary of State for the Home Dept ex p Bentley (1993)

Answer 23

there are some royal prerogative powers that remain non-justiciable and therefore beyond the scope of the courts

Question 24

Legislature and Judiciary Seperate…

Answer 24

• HoC disqualifications act
• Impact of Convnetionm - not to criticise a particalr judge
• ‘sub-judice’ rule
• Bill of Rights 1689 art 9 - freedom of speech in parliament by no legal sanction of what is said in Parliament.

Question 25

Burmah Oil Company v. Lord Advocate (1965)

Answer 25

Parliament enacted the War Damage Act 1965, which overruled the HoL’s decision and provided that comesnation was not payable. Applied the act retroactively

example of statute taking precedence over the common law, parliament can overturn the common law

Question 26

Courts Check on Primary Legislation

Answer 26

The Courts can suspend the legislation that was incompatible with EU law.

In relation to EU law - The courts can disapply the statute in favour of the Withdrawal agreement unless parliament explicitly instructed them to give priority to the UK act of Parliament.