Legitimacy, Separation of Powers & Rule of Law Flashcards
What buttresses the legitimacy of the UK constitution? Why are they important?
The rule of law and separation of powers are two key constitutional principles that buttress the legitimacy of the UK’s constitution and prevent the arbitrary exercise of power
What is the definition of the rule of law?
every person should be governed by and benefit from the laws of the land. These laws should be clearly stated, understood and administered
What is the doctrine of the separation of powers?
Each branch of the state has a different role to play within the constitution and there shouldn’t be any overlaps as this could lead to a concentration of power and an arbitrary and oppressive government
What is in place to deal with overlaps in the branches of the state?
Due to the complex way modern states work, it would be unrealistic for each branch to be completely separate so most constitutions have developed the concept of checks and balances
How is there a separation of powers between the executive and legislature?
Statute provides:
1. certain members of the executive (i.e. civil servants, police and armed forces) cannot be MPs
2. there are limits on the number of government ministers that can sit in the HoC
How is there an overlap between the executive and legislature?
- Government ministers can be MPs
- There are arguments the government effectively controls the legislature, i.e:
o Most bills are introduced by government ministers
o Delegated legislation is implemented by ministers
o Henry VIII powers
What checks and balances are in place to deal with the overlap between the executive and legislature?
o Time is set aside each day for MPs to put oral questions to ministers
o Prime Minister’s Question Time
o All government bills are referred to a public bill committee of MPs who review the detailed clauses in the bill in the Second Reading
o Parliamentary Ombudsman - their job is to investigate complaints by people who have suffered injustice by maladministration by government departments
o Ministers are accountable through conventions, particularly conventions of individual and collective responsibility
What does s3 of the Constitutional Reform Act 2005 provide?
The government is under a duty to uphold the independence of the judiciary and individual ministers should not seek to influence decisions through special access to the judiciary
In the UK, how is judiciary independence from the executive secured?
o Appointment - judges are appointed by the Judicial Appointment Committee which is politically impartial and free from executive control.
o Judges can only be dismissed following a vote of both Houses of Parliament, not because they give a bad judgement the government disagrees with.
o Judges’ salaries are determined by an independent body.
o Constitutional conventions i.e. the government cannot criticise judicial decisions and the judiciary do not engage in party political activity.
o The sub-judice rule
o The introduction of the Constitutional Reform Act 2005
What is the sub-judice rule?
Parliament refrains from discussing matters in court or waiting to be heard by the court
In which areas have the legislature and judiciary been unable to exercise effective scrutiny over the executive?
When the government exercises powers under the Royal Prerogative. This is because they are set of legal powers that the monarch or government ministers can use without parliamentary consent
In addition, the judiciary consider these areas to be ‘non-justiciable’
What constitutional convention attempts to provide some scrutiny by the legislature over the government?
In 2011, the Government acknowledged that a convention had developed in Parliament that before troops were committed the House of Commons should have an opportunity to debate the matter and said that it proposed to observe that Convention except where there was an emergency and such action would not be appropriate.
What was the role of the Lord Chancellor pre-2005?
The Lord Chancellor was a government minister and head of the judiciary of E&W and they appointed senior members of the Judiciary
Why was the Constitutional Reform Act 2005 introduced?
One of the reasons is because it was felt there was too much overlap between the executive and judiciary. Particularly in relation to the Lord Chancellor and some of the quasi-judicial functions government ministers undertook
What changes did the Constitutional Reform Act 2005 introduce?
o The Lord Chancellor was no longer head of the judiciary. This was transferred to the Lord Chief Justice
o The Judicial Appointments Committee was created to ensure that the appointment of judges is based solely on merit and not influenced but political considerations. This is an independent body.
