Constitutional Principles Flashcards
What is the rule of law?
The principle that all individuals, institutions, and government entities are accountable to the law
Why is the rule of law considered a contested concept?
There is no single definition; some view it as procedural fairness, while others argue it should include justice and equality
What is the difference between the formal and substantive rule of law?
- Formal rule of law: Focuses on legal structure, clarity, and predictability
- Substantive rule of law: Includes justice, human rights, and broader moral values
What are Dicey’s three key principles of the rule of law?
1) No arbitrary power – Government actions must be legally authorised
2) Equality before the law – Laws apply to everyone equally
3) Legal rights and judicial decisions – The rule of law is upheld by courts rather than a written constitution
What are criticisms of Dicey’s view on the rule of law?
- Too focused on procedure rather than justice
- Ignores social and economic inequalities that limit access to justice
What are the 3 key features of the core rule of law?
- Clarity – Laws must be clear and accessible
- Certainty – Laws should be stable and predictable
- Procedural fairness – Legal processes must be impartial and follow due process
How does the extended rule of law differ from the core rule of law?
It includes broader societal goals, such as justice, human rights, and accountability
What is the criticism on the extended rule of law?
Risks making it overly vague and political, potentially undermining its core procedural focus
What is the substantive rule of law?
The idea that laws must not only be applied fairly but also be just, protecting fundamental rights
Why is the rule of law sometimes considered an imperial concept?
It is seen as reflecting Western legal traditions, which may not align with other cultural or legal systems
What are 2 criticisms of the rule of law as an imperial concept?
- Imposing Western values can undermine local governance
- It may overlook cultural diversity and indigenous legal traditions
What is the separation of powers?
A constitutional principle dividing government into three branches: executive, legislature, and judiciary
Why is the separation of powers important (3 reasons)?
- Prevents abuse of power – No single branch has absolute authority
- Ensures accountability – Each branch checks the others
- Protects individual rights – Laws are fairly created, enforced, and judged
Who are two key theorists of the separation of powers?
- Montesquieu – Advocated separation to protect liberty
- John Locke – Stressed the need for legislative and executive separation
What are the three branches of government and their functions?
- Legislative – Makes and amends laws (Parliament in the UK)
- Executive – Enforces laws (Prime Minister and Cabinet)
- Judiciary – Interprets and applies laws (Courts and judges)
Does the UK have a complete separation of powers?
No, there are overlaps, making it a “partial” separation
How does the monarchy fit within the separation of powers?
The monarch’s role is largely symbolic but extends across all three branches
- executive (government functions)
- legislative (royal assent)
- judicial (historically as the “Fount of Justice”)
How did the role of the Lord Chancellor historically violate the separation of powers?
The Lord Chancellor had powers in all three branches, acting as a government minister, MP, and judge
How did the Constitutional Reform Act 2005 change the Lord Chancellor’s role?
It reduced their influence, making them primarily a government minister responsible for judicial independence
How did the creation of the UK Supreme Court in 2009 impact the separation of powers?
It removed judicial powers from Parliament, strengthening judicial independence
Why is judicial independence important?
It ensures fair, impartial decision-making and prevents government interference in legal rulings
What 1 safeguards exist to protect judicial independence?
- Security of tenure – Judges cannot be arbitrarily removed
- Financial independence – Salaries are protected from political influence
- Judicial Appointments Commission – Ensures merit-based judge selection
How does Parliament control the executive?
- Passing laws = The executive must follow laws made by Parliament
- Scrutiny mechanisms = Parliament monitors government actions
What are 3 key mechanisms Parliament uses to hold the government accountable?
- Prime Minister’s Questions (PMQs) – Weekly questioning of the PM
- Select Committees – Investigate government departments
- Votes of confidence – The government must maintain Parliament’s support
