Ch 7: Rule Of Law

Question 1

What are Dicey’s 3 principles for Rule of Law?

Answer 1

1) No man can be made to suffer except for a distinct breach of the law properly established

2) No man is above the law

3) The general principles of the constitution are a result of judicial decisions

Question 2

What are some of the key benefits to the Rule of Law?

Answer 2

• the Government cannot exercise arbitrary power
• the Government can be held to account
• the law is set out clearly for all
• the law does not act retrospectively
• there is equality in law
• there is equal access to law
• citizens have a means of redress
• the independence of the judiciary

Question 3

What is Joseph Raz’s principles of Rule of Law?

Answer 3

The law should be:
- openly and clearly stated
- not have retrospective effect
- be made by proper procedure
- be relatively stable
- provide for open and fair hearings
- be administered by independent judiciary

Question 4

What is Lord Bingham’s principle of Rule of Law?

Answer 4

All persons and authorities within the state wether public or private should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered by the courts

Question 5

What is an example of the Courts protecting the Right to Liberty?

Answer 5

The Belmarsh Case - striking down antiterrorism detention rules

Question 6

What is an example of the courts protecting the right to a fair hearing?

Answer 6

Anderson v Secretary of State (2002) - the Home Secretary overruled a judge in setting a higher sentence than the judge reccomended. The defendant sued and won.

Question 8

What are the 3 branches of state?

Answer 8

• Executive - Implements the Law
• Legislature - Makes the law
• Judiciary - resolves disputes in law

Question 9

What are the two principles of the doctrine of separation of powers?

Answer 9

• there should be no overlap in functions or personnel between the. branches
• as full separation is impossible, checks and balances are required to ensure each branch is kept in check by the other

Question 10

Which branch does the Monarch sit within?

Answer 10

All 3

• they are part of the executive
• they must give royal assent to the legislature
• they are head of the judiciary

In reality though the role is ceremonial

Question 11

What steps in the House of Commons Disqualification Act 1975 support a limited separation of powers between the executive and legislature?

Answer 11

1) Disqualifies certain members of the executive (Civil Servants, armed forces etc) from being MPs

2) Limits the number of Govt Ministers who can sit in House of Commons (to 95!!!!)

Question 12

Why did Lord Hailsham describe the UK system as an “elective dictatorship”?

Answer 12

Because once a Govt is elected under the “first past the post” system, a Govt has an in-built legislative majority and can largely act and pass laws as it wishes, without effective challenge from Parliament

Question 13

What are some ways Parliament exerts scrutiny over the Executive?

Answer 13

• Question Time
• Debates on bills (2nd reading)
• General committees
• Select committees (for individual departments)
• Parliamentary Ombudsman

Question 14

Does Parliament have any oversight over decisions taken under Royal Perogative?

Answer 14

Not formally - but can challenge and debate.

2011 established a convention for example that deployment of troops must be debated by Parliament first (though unclear if it needs approval)

Question 16

How is Judicial Independence from the executive assured?

Answer 16

A) Appointment - by the Judicial Appointments Commission

B) Tenure - security of tenure for Judges was established in 1981. senior judges can only be dismissed by a vote in both Houses

C) Salary - Judges are paid from the Consolidated Fund which does not require annual approval. And set by the Senior Salaries Review Board

D) Immunity from Civil Actuo in respect of their judicial actions

E) constitutional conventions prevent ministers from commenting on judicial decisions

F) Contempt of Court laws ensure no outside interference

Question 17

What was the impact of the Constitutional Reform Act 2005?

Answer 17

Change the role of Lord Chancellor to the Lord Chief Justice to move it out of the Executive

Creation of the Judicial Appointments Commission to ensure appointments purely on merit and not political considerations.

Question 18

What judicial functions does the Executive retain?

Answer 18

Compulsory purchase orders are quasi judicial decisions made by Govt Ministers

Question 19

How does the Judiciary hold the Executive to account?

Answer 19

Via Judicial Review

Given no written constitution, the judiciary cannot declare the Govts acts unconstitutional