Legitimacy, Separation of Powers and the Rule of Law

Question 1

Legitimacy

Answer 1

The rules that determine whether a particular law has been legally enacted.

Justification.
The rule of law.
Separation of powers.

Question 2

The rule of law - Modern interpretation

Answer 2

Lord Bingham:

1) The law must be accessible, intelligible, clear and predictable
2) Questions of legal rights and liability should ordinarily be resolved by application of the law and not the exercise of discretion
3) The laws of the land should apply equally to all
4) The law must afford adequate protection of HRs
5) Means must be provided for resolving, without excessive cost or delay civil disputes
6) Ministers and public officers must exercise the powers conferred on them reasonable, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers
7) The adjudicative procedures provided by the state should be fair
8) The state must comply with its obligations in international law

Question 3

The separation of powers

Answer 3

Underpins the constitution in the UK.

Should be no overlap between the branches either in terms of their functions or in terms of their personnel.

As each branch of state cannot in reality operate in isolation from the other branches, there should be a system of ‘checks and balances’ in place so that
one branch can be kept ‘in check’ by the other branches, resulting in a ‘balance of power’ between the different branches.

Question 4

Is there a SoP within the UK?

Answer 4

Unlike USA, no formal separation of powers.

As no written constitution - partial separation of powers between the three branches of state exists, together with a largely informal system of checks and balances.

Question 5

Relationship between the executive and the legislature - No overlap

Answer 5

Statutory limitation on members of the executive also being members of the legislature e.g police officers not permitted to hold parliamentary office.

Question 6

Relationship between the executive and the legislature - overlap

Answer 6

Government ministers can also be MPs.

Elected dictatorship - gov. effectively controls parliament.
The Salisbury convention means that the Lords will not reject a bill giving effect to a significant manifesto commitment of the democratically elected gov. Henry VIII powers - enable the amendment or repeal of legislations by the gov. without reference back to parliament.

Question 7

Relationship between the executive and the legislature - Parliamentary scrutiny of the executive

Answer 7

• Questions.
  Time is set aside each day for MPs to put questions to ministers.
  PM answers questions for 30 minutes each
  Wednesday.
• Debates
• General committees (including public bill committees).
• Select committees.
  Appointed for the life of a Parliament to examine the ‘expenditure, administration and policy’ of the main government
  departments.
• Parliamentary and Health Service Ombudsman (‘the Ombudsman’).
• MPs may reject government bills.

Question 8

Relationship between the executive and the legislature - Parliament and the royal prerogative

Answer 8

There are some areas of gov. activity over which parliament has historically been unable to exercise scrutiny.
These are powers which the gov. exercises under the royal prerogative e.g. matters of national security, the defence of the realm and the deployment of the armed forces.
However there are indications that parliament is taking on a greater role in these areas e.g gov. obtained parliamentary approval before sending troops to Iraq.

Question 9

Relationship between the executive and the judiciary - importance of judicial independence

Answer 9

Government is under a duty to uphold the independence of the judiciary and that individual ministers should not seek to influence particular decisions through any special access to the judiciary.

Question 10

Relationship between the executive and the judiciary - How is judicial independence secured?

Answer 10

(a) Appointment.
Dealt with by the Judicial Appointments
Commission, which is politically impartial and free from executive control.

(b) Security of tenure (ie job security) was given to judges of the senior courts during good behaviour and
may be dismissed by the Monarch only following a vote of both Houses of Parliament.

(c) Salary.
Determined by an independent body (the Senior Salaries
Review Board) and are paid from the Consolidated Fund - does not require annual approval.

(d) Immunity from civil action.

(e) Constitutional conventions. Members of the executive do not criticise
judicial decisions, and members of the judiciary do not engage in party political activity.

(f) The ‘sub- judice’ rule. Under this rule, Parliament (and therefore government ministers)
refrains from discussing matters currently being heard or waiting to be heard by the courts.

(g) Contempt of court laws. Ensure that there is no outside interference with the
administration of justice.

Question 11

Relationship between the executive and judiciary - The constitutional reform act

Answer 11

Prior to this act the Lord chancellor was a member of both the executive and the judiciary. Following the act, the role as head of judiciary has been transferred to the Lord Chief Justice.

Question 12

Relationship between the executive and judiciary - How does the judiciary hold the executive to account for its actions?

Answer 12

Judicial review:

If Parliament has granted statutory powers to the executive, courts can
ensure that those powers are exercised in accordance with the purpose of the statute and
are not exceeded or abused.

Question 13

Relationship between the executive and judiciary - Judiciary control of the exercise of royal prerogative powers

Answer 13

The judiciary is responsible for deciding the extent of the royal prerogative.

Through case law the courts have established that new prerogative powers cannot be created or the scope of existing powers extended.

Question 14

Relationship between the executive and judiciary - Royal prerogative powers which are non-justiciable

Answer 14

Courts regard treaty making as a political issue for the gov. to decide upon and so is not subject to review by the courts E.g national security and treaty making.

Question 15

Relationship between the legislature and the judiciary - Keeping the legislature and judiciary separate

Answer 15

(a) Judicial
office are disqualified from membership of the House of Commons.

(b) There is a constitutional convention that Members of Parliament will not make a criticism of a particular judge, and a further convention that members of the judiciary will not become involved in political activities.

(c) The ‘sub- judice’ rule.
Parliament will refrain from discussing details of
cases before the courts or waiting to come before the courts.

(d) Freedom of speech in Parliament by stating that Members of Parliament cannot be made subject to legal sanction by the
courts for comments made in Parliament.

Question 16

Relationship between the legislature and the judiciary - Does the judiciary perform a legislative function?

Answer 16

Some people say that in interpreting statute and developing the common law the judiciary performs a legislative function.

Can declare that an Act of
Parliament is incompatible with the ECHR.

Question 17

Relationship between the legislature and the judiciary - politicisation of the judiciary

Answer 17

Senior members of the judiciary have been appointed to chair public inquiries.
These inquiries have often involved issues that are politically sensitive.

Government ministers and
backbench MPs have breached the constitutional convention that politicians should not engage in criticism of individual members of the judiciary e.g. saying too lenient.