Chapter 7 - The Rule of Law & the Separation of Powers

Question 1

What are the two key constitutional principles that support the legitimacy of the UK’s constitution?

Answer 1

The rule of law and the separation of powers. These help ensure the legitimacy of laws to which British citizens and residents are subject.

Question 2

Who is credited with providing a traditional definition of the rule of law?

Answer 2

AV Dicey, in his 1885 work, ‘An Introduction to the Study of the Law of the Constitution,’ outlined three key points about the rule of law.

Question 3

Summarize Dicey’s three points about the rule of law.

Answer 3

1. No punishment without a breach of law established in court. 2. No one is above the law regardless of their rank. 3. General principles of the constitution, like liberty and public meeting, are established by judicial decisions.

Question 4

Why is Dicey’s view of the rule of law considered dated?

Answer 4

Dicey’s account failed to anticipate the developments in administrative law, specifically concerning the control of power exercised by public officials and bodies.

Question 5

What is one benefit of the rule of law, according to the source?

Answer 5

The government is prevented from exercising arbitrary power because ‘regular’ law is considered supreme.

Question 6

What does ‘equality before the law’ mean in the context of Dicey’s second point about the rule of law?

Answer 6

It means that not only should citizens be treated equally but that public officials should also be subject to the same laws as citizens. This is illustrated by Entick v. Carrington, which established that state officials do not have exemption from legal control.

Question 7

Who provided a prominent modern interpretation of the rule of law?

Answer 7

Joseph Raz, in his work ‘The Authority of the Law’ (1979), argues that the rule of law’s primary function is guiding action. He outlines several qualities that the law should have to meet this function.

Question 8

What are some qualities of law according to Joseph Raz?

Answer 8

The law should be publicly accessible, should not have retrospective effect, be created through proper procedures, be relatively stable, have open and fair hearings, and be administered by an independent judiciary.

Question 9

What was Lord Bingham’s core argument regarding the rule of law?

Answer 9

Lord Bingham, a prominent British judge, stated that all persons and authorities within a state should be subject to and benefit from laws that are publicly made and administered in court. He broke this down into eight sub-rules.

Question 10

List three of Lord Bingham’s eight sub-rules for the rule of law.

Answer 10

Any three of the following: 1. The law must be accessible, intelligible, clear and predictable. 2. Questions of legal right and liability should be decided by law, not discretion. 3. The laws should apply equally to all except when objective differences require differentiation. 4. The law must protect human rights. 5. Means must be available for resolving civil disputes. 6. Ministers and public officers must exercise their powers reasonably, in good faith, for their intended purpose, and within their limits. 7. Adjudicative procedures should be fair. 8. The state must comply with international law.

Question 11

What is the distinction between ‘formal’ and ‘substantive’ concepts of the rule of law?

Answer 11

Formal conceptions focus on the form and procedure of law-making. Substantive conceptions go further to include ideas like justice, human rights, and non-discrimination.

Question 12

Give an example from the source that illustrates a potential conflict between formal adherence to the rule of law and substantive issues of justice.

Answer 12

The South African apartheid regime is an example. While laws were enacted according to proper procedures, their racially discriminatory content violated substantive principles of justice and equality.

Question 13

Provide one example of the contemporary relevance of the rule of law in the UK.

Answer 13

Section 1 of the Constitutional Reform Act (CRA) 2005 acknowledges the importance of the constitutional principle of the rule of law, demonstrating its continued relevance.

Question 14

Which case highlights the importance of the rule of law in protecting the right to liberty?

Answer 14

A and others v Secretary of State for the Home Department (the Belmarsh case) challenged the indefinite detention of foreign terror suspects without trial. The House of Lords ruled this breached the right to liberty and security, illustrating the rule of law’s protection against arbitrary detention.

Question 15

What was the main issue in the case of R (Anderson) v Secretary of State for the Home Department?

Answer 15

The case challenged the Home Secretary’s power to set the minimum term for a mandatory life sentence, arguing it breached the right to a fair trial. The House of Lords issued a declaration of incompatibility, emphasizing the rule of law’s importance in ensuring fair trial procedures.

Question 16

How did the R (UNISON) v Lord Chancellor case demonstrate the connection between the rule of law and access to justice?

Answer 16

The Supreme Court ruled that employment tribunal fees that hindered access to justice were unlawful. The ruling emphasized that unimpeded access to courts is essential for the rule of law to function effectively.

Question 17

What key principle of the rule of law did the M v Home Office case illustrate?

Answer 17

The case, in which the Home Secretary was found in contempt of court for ignoring a judge’s order, demonstrated that no one, including government officials, is above the law.

Question 18

What potential tension exists between parliamentary sovereignty and the rule of law?

Answer 18

While Parliament is sovereign and can technically pass any law, even an oppressive one, this could contradict the rule of law’s principles.

Question 19

What is the ‘principle of legality,’ and how does it address the tension between parliamentary sovereignty and the rule of law?

Answer 19

The principle of legality requires Parliament to be explicit when enacting laws that conflict with fundamental rights, making it politically accountable for such actions. It acknowledges Parliament’s sovereignty while upholding the rule of law by preventing the erosion of rights through vague legislation.

Question 20

Which contemporary bill has raised concerns about potential breaches of the rule of law?

Answer 20

The Illegal Migration Bill, which restricts the rights of asylum seekers, has been criticized for potentially violating the rule of law and the UK’s international obligations.

Question 21

What was the outcome of the R (Corner House Research and Another) v Director of Serious Fraud Office case, and what does it suggest about the limits of the rule of law?

Answer 21

The court upheld the Director’s decision to halt a corruption investigation due to national security threats. This highlights that while the rule of law is crucial, it might be balanced against other compelling public interests, suggesting limits to its absolute application.

Question 22

How is the separation of powers linked to the rule of law?

Answer 22

An independent judiciary is crucial to the rule of law, and the separation of powers helps safeguard this independence. Checks and balances on government power further prevent arbitrary rule, reinforcing the rule of law’s principles.

Question 23

Identify and define the three branches of state according to the doctrine of separation of powers.

Answer 23

1. Legislature: Creates laws. 2. Executive: Implements and administers laws. 3. Judiciary: Resolves legal disputes.

Question 24

Why is a system of ‘checks and balances’ important in the context of the separation of powers?

Answer 24

Although the three branches can’t operate in complete isolation, checks and balances prevent any single branch from becoming too powerful, ensuring a balance of power and safeguarding against tyranny.

Question 25

Which country’s constitution is often cited as a model for the separation of powers? Why?

Answer 25

The US Constitution. It was designed specifically to prevent executive dominance, a perceived weakness in the UK system at the time. It includes a clear division of powers and a system of checks and balances.

Question 26

Provide one example of how the US Constitution ensures separation of powers between the executive and legislative branches.

Answer 26

Members of the US executive branch, including the President and Cabinet members, are prohibited from simultaneously serving in Congress. This prevents personnel overlap and ensures distinct roles.

Question 27

What are some of the ‘checks’ the US legislative branch (Congress) has on the executive branch (President)?

Answer 27

Congress can override a presidential veto with a two-thirds majority, has the power to impeach the President, and must approve presidential nominations for key positions like Supreme Court justices.

Question 28

How does the US judicial branch (Supreme Court) exercise checks on the other branches?

Answer 28

The Supreme Court can strike down laws passed by Congress or actions taken by the executive branch if deemed unconstitutional, ensuring adherence to the Constitution’s principles and limiting the power of the other branches.

Question 29

Does the UK have a formal separation of powers? Explain.

Answer 29

No. The UK’s unwritten constitution, developed gradually over time, lacks a formalized system for separating powers. Instead, a partial separation exists alongside informal checks and balances.

Question 30

Although the Monarch is technically part of all three branches of the UK government, what is their role in reality?

Answer 30

The Monarch’s role is largely ceremonial. The government exercises most of the Monarch’s powers by convention, illustrating the practical distinctions between the branches despite the Monarch’s formal inclusion.

Question 31

What is the purpose of the House of Commons Disqualification Act 1975 in relation to the separation of powers?

Answer 31

The Act limits executive influence in the legislature by disqualifying civil servants, members of the armed forces, and police from serving as MPs. It also restricts the number of government ministers allowed to sit in the House of Commons.

Question 32

What does the term ‘elective dictatorship’ mean in the context of the UK system?

Answer 32

Coined by Lord Hailsham, it describes the potential for a government with a parliamentary majority to dominate law-making, effectively acting as a ‘dictatorship’ despite being elected. It raises concerns about the legislature’s ability to genuinely scrutinize and challenge the executive.

Question 33

Give two reasons why the UK system may be vulnerable to becoming an ‘elective dictatorship.’

Answer 33

Any two of the following: 1. The ‘first past the post’ electoral system often results in the governing party having a majority of MPs. 2. The government controls the parliamentary timetable, prioritizing its own legislative agenda. 3. Government-introduced bills are likely to pass due to the governing party’s majority. 4. Constitutional conventions pressure MPs to support government legislation. 5. The use of delegated legislation allows the government to make laws with limited parliamentary scrutiny. 6. ‘Henry VIII’ powers enable the government to amend primary legislation without full parliamentary involvement. 7. The House of Lords, while able to scrutinize, is weaker than the Commons and constrained by conventions.

Question 34

Name three ways in which Parliament scrutinizes the executive.

Answer 34

Any three of the following: Questions to ministers, debates, general committees (including public bill committees), select committees, the Parliamentary and Health Service Ombudsman, and the ability to reject government bills.

Question 35

Describe the convention of individual ministerial responsibility.

Answer 35

Ministers are accountable to Parliament for their department’s administration and personal conduct. They are expected to resign if they breach this convention. Examples include resignations over failures to foresee events, conflicts of interest, and misleading Parliament.

Question 36

Explain the convention of collective cabinet responsibility.

Answer 36

The cabinet is collectively responsible to Parliament for the government’s actions and must maintain the confidence of the House of Commons. Ministers who disagree with government policy are expected to resign.

Question 37

What are some examples of royal prerogative powers historically subject to limited parliamentary scrutiny?

Answer 37

Powers related to national security, defense of the realm, and deployment of armed forces. Parliament historically had little role in these areas, raising concerns about accountability.

Question 38

How has Parliament’s role in scrutinizing the use of military force evolved?

Answer 38

A convention is emerging that the House of Commons should debate the deployment of troops before it happens, although the exact scope of this convention remains unclear. The government’s decision to authorize airstrikes against Syria in 2018 without prior parliamentary approval, despite claiming an emergency situation, generated controversy and debate on this evolving convention.

Question 39

How does the Constitutional Reform and Governance Act 2010 affect Parliament’s scrutiny of treaties?

Answer 39

The Act grants the House of Commons the power to prevent treaty ratification through a vote. This provides a statutory basis for parliamentary scrutiny of treaties, which were previously solely under the royal prerogative.

Question 40

How is judicial independence from the executive supported by the Constitutional Reform Act 2005?

Answer 40

Section 3 of the Act places a duty on the government to uphold judicial independence and prohibits ministers from influencing judicial decisions. This underscores the importance of a judiciary free from executive interference.

Question 41

List three ways in which judicial independence from the executive is ensured in the UK.

Answer 41

Any three of the following: Appointment by an independent Judicial Appointments Commission, security of tenure for senior judges, salary determination by an independent body, immunity from civil action for judicial actions, conventions against executive criticism of judges, the ‘sub-judice’ rule preventing parliamentary discussion of active cases, and contempt of court laws preventing interference with the judicial process.

Question 42

What were the main concerns about the Lord Chancellor’s role prior to the Constitutional Reform Act 2005?

Answer 42

The Lord Chancellor’s combined roles as a government minister, head of the judiciary, and member of the highest court raised concerns about executive influence over the judiciary and a lack of impartiality in the system.

Question 43

How did the Constitutional Reform Act 2005 address concerns about the Lord Chancellor’s role?

Answer 43

The Act transferred the Lord Chancellor’s judicial functions to the judiciary and established a new Supreme Court, enhancing the separation of powers and judicial independence.

Question 44

How did the Constitutional Reform Act 2005 address concerns about the Lord Chancellor’s role?

Answer 44

The Act transferred the Lord Chancellor’s judicial responsibilities to the Lord Chief Justice and established the independent Judicial Appointments Commission to handle judicial appointments, reducing the Lord Chancellor’s influence and promoting impartiality.

Question 45

Despite the Constitutional Reform Act 2005, how do members of the executive still perform quasi-judicial functions? Provide an example.

Answer 45

In certain areas, like issuing compulsory purchase orders (CPOs), government ministers make decisions that are quasi-judicial in nature, involving an assessment of facts and legal issues.

Question 46

How does the judiciary hold the executive accountable through judicial review?

Answer 46

Judicial review allows courts to scrutinize executive actions and ensure they are lawful, rational, and follow proper procedures. This check on executive power prevents abuse of authority and upholds the rule of law.

Question 47

Explain the difference between reviewing the ‘extent’ and the ‘exercise’ of royal prerogative powers.

Answer 47

Reviewing the ‘extent’ involves determining whether a particular prerogative power actually exists, while reviewing the ‘exercise’ focuses on whether the power, if it exists, has been used lawfully and appropriately.

Question 48

What did the Case of Proclamations (1611) establish regarding the royal prerogative?

Answer 48

The case established that the monarch (King, in this instance) cannot create new prerogative powers. Only powers allowed by law can be exercised, limiting the monarch’s ability to expand their authority unilaterally.

Question 49

How did the Supreme Court’s judgment in R (Miller) v The Prime Minister, Cherry v Advocate General for Scotland (Miller (No 2)/Cherry) relate to the extent of the royal prerogative?

Answer 49

The court ruled that the Prime Minister’s advice to prorogue Parliament for an extended period, a prerogative power, was unlawful as it hindered Parliament’s ability to fulfill its constitutional functions. This demonstrates the courts’ willingness to analyze and limit the extent of prerogative powers when they conflict with fundamental constitutional principles.

Question 50

Why are certain prerogative powers considered ‘non-justiciable’?

Answer 50

Powers related to ‘high politics,’ national security, and defense are often deemed unsuitable for judicial review. Courts are hesitant to intervene in these politically sensitive areas where they may lack expertise or risk undermining their independence.

Question 51

What potential concern arises from the existence of non-justiciable prerogative powers?

Answer 51

These powers may escape effective scrutiny from both the legislature and the judiciary. This raises questions about accountability and the potential for executive overreach in sensitive areas.

Question 52

What is the ‘sub- judice’ rule, and how does it relate to the separation of powers?

Answer 52

The ‘sub- judice’ rule prevents Parliament from discussing active court cases. This protects judicial independence by preventing legislative interference or influence on ongoing legal proceedings.

Question 53

What does Article 9 of the Bill of Rights 1689 guarantee, and how does it relate to the relationship between the legislature and judiciary?

Answer 53

It guarantees freedom of speech in Parliament, protecting MPs from legal action for comments made during parliamentary proceedings. This establishes ‘parliamentary privilege’ and ensures a degree of separation between the legislature and judiciary by preventing courts from sanctioning parliamentary speech.

Question 54

How did the Constitutional Reform Act 2005 address the overlap between the legislature and judiciary that existed in the Appellate Committee of the House of Lords?

Answer 54

The Act created the Supreme Court as a separate entity from Parliament, replacing the Appellate Committee. This physical and institutional separation reduced the overlap between the legislature and judiciary by removing the highest court from direct parliamentary involvement.

Question 55

Briefly explain the ‘declaratory theory’ and the ‘legislative theory’ regarding the judiciary’s role in law-making.

Answer 55

The ‘declaratory theory’ claims judges merely declare existing law, while the ‘legislative theory’ argues judges actively make law through interpretation and common law development.

Question 56

What are some limitations on judicial law-making?

Answer 56

The theory of ‘judicial restraint’ suggests judges should avoid making law in areas where Parliament intends to legislate or has chosen not to. Parliament’s sovereignty allows it to overturn common law it dislikes, as exemplified by the War Damage Act 1965.

Question 57

Does the judiciary in the UK have the power to strike down an Act of Parliament? Why or why not?

Answer 57

No. Due to the UK’s unwritten constitution and parliamentary sovereignty, no higher law exists against which an Act of Parliament can be judged. The courts cannot declare an Act unconstitutional or strike it down.

Question 58

What power did the courts have in relation to EU law during the UK’s EU membership? Does any form of EU law supremacy remain after Brexit?

Answer 58

Courts could suspend UK legislation conflicting with EU law. After Brexit, a limited form of supremacy persists for retained EU law, and the Withdrawal Agreement likely holds supremacy unless explicitly overridden by Parliament.

Question 59

What power does Section 4 of the Human Rights Act 1998 grant to the judiciary in relation to primary legislation?

Answer 59

Courts can issue a ‘declaration of incompatibility’ if an Act of Parliament conflicts with the European Convention on Human Rights (ECHR). While not invalidating the Act, it pressures the government to amend the law.

Question 60

What potential concern has been raised regarding the judiciary’s increasing involvement in politically sensitive cases?

Answer 60

It raises the risk of politicization of the judiciary, potentially undermining its independence and impartiality. Public inquiries into contentious issues and judgments on human rights and Brexit have fueled this debate.

Question 61

Briefly explain the controversy surrounding the Safety of Rwanda (Asylum and Immigration) Act 2024 and its implications for the separation of powers and the rule of law.

Answer 61

The Act seeks to prevent judicial review of the UK’s policy to remove asylum seekers to Rwanda, raising concerns that it undermines judicial independence and the principle of legal accountability. It also raises concerns about the UK’s compliance with international law, particularly regarding the principle of non-refoulement, despite domestic legal changes. Critics view it as an overreach of parliamentary power and a threat to the separation of powers, while supporters argue it reflects legitimate parliamentary authority and acknowledges the political sensitivity of foreign relations.