Legitimacy, The Rule of Law and Separation of Powers Flashcards
What are the two key constitutional principles that uphold the legitimacy of the UK Constitution?
The Rule of Law + Separation of Powers
What are the core elements of the Rule of Law?
Legal certainty – citizens should be able to rely on laws that are made and set out clearly
Personal liberty – citizens should only be detained if they have broken the law
Due process of law – citizens have a right to fair procedures for determining civil and criminal liability
Equality before the law – like cases treated in like ways; state officials should have no exemption from legal accountability and members of the executive should not legislate or adjudicate in court cases
Courts are protectors of law and individual liberty
Why is the Rule of Law important?
Government is prevented from exercising arbitrary power
Government can be held to account for its actions through judicial review
Law is set out clearly and should be made properly following a set procedure
Law should not operate retrospectively
Equality before the law - Right to fair trial and a fair hearing is very important
Equal access to the law and government should have no special exemptions
Citizens have a means of legal redress for their grievances
Independence of judiciary is maintained
Parliamentary sovereignty is a key limitation to the Rule of Law, as parliament can pass any law, no matter how oppressive or unfair it may be
What are the three branches of government under the doctrine of separation of powers?
1) Executive – implements or administers the law– PM and Cabinet Ministers and civil service + police + armed forces (Government)
2) Legislature – makes the law (Parliament)
3) Judiciary – resolves disputes about the law (courts)
The checks and balances that form a part of this system prevent arbitrary exercise of power by a government
In what ways do the executive and legislature overlap?
Government ministers can be MPs, so they are members of Ex and Le
Parliament cannot effectively scrutinise royal prerogative powers
Government effectively control parliament so is described as an ‘elective dictatorship’
First past the post system means that most MPs in HC will be members of the political party which forms the government
Bills introduced by government ministers will be passed because most MPs represent the governing party
Government whips pressure MPs to support bills introduced by the government
Limited opportunities for MPs to scrutinise delegated legislation
Government can amend primary legislation by delegated legislation using ‘Henry VIII powers’
HL seen as weak, revising chamber which is unable to keep the government in check
In what ways is there a separation between the executive and legislature?
HC Disqualification Act:
- Certain members of executive cannot be MPs, including police officers
- Number of members of the executive who can sit in the HC is limited to 95
Scrutiny by MPs of the government:
- PMQs, debates, committees, the use of Ombudsmen
- Power to reject government bills
Conventions which help hold the government to account:
- Parliament can pass a vote of no confidence in the government
- Collective cabinet responsibility – cabinet is collectively responsible to Parliament for the actions of the Government as a whole; this also means that all government ministers must support government policy in public. If they cannot do so, they should resign
- Individual ministerial responsibility – no conflict between own interests and their public duties
There is a convention that military action can be taken by the Government in an emergency without Parliamentary approval
- This is a prerogative power
In what ways do the executive and judiciary overlap?
Quasi-judicial functions of executive, such as the making of compulsory purchase orders
Judicial review only looks at decision making process and not the merits of the decision
Certain royal prerogative powers are non-justiciable, which means the courts cannot intervene on such areas – power to review exercise of prerogative powers is more limited
- Making of international treaties and control of armed forces are examples
In what ways is there a separation between the executive and judiciary?
Constitutional Reform Act 2005 increased separation between the executive and judiciary:
- Appointed new Lord Chief Justice, in place of Lord Chancellor who was a member of the executive and judiciary
- Created Judicial Appointments Commission
- Created Supreme Court
Judges have security of tenure and cannot be dismissed by the executive
Judicial salaries are determined by an independent body
Contempt of court law ensure there is no outside interference with the administration of justice
Judges have immunity from civil action – they cannot be penalised for making an error when carrying out their duties
By convention, executive does not criticise judicial decisions
Sub-judice rule means that Parliament refrains from discussing matters currently or waiting to be heard by the courts
Judicial review ensures decisions made by the executive are made using the correct procedure
Judiciary also decides the extent of royal prerogative powers
- Case law has established that new prerogative powers cannot be created and the scope of existing powers cannot be extended
What is the new role of the Lord Chancellor?
The Lord Chancellor sits as a member of cabinet as Secretary of State for Justice
In what ways do the legislature and judiciary overlap?
Judiciary performs a legislative function in interpreting statutes and developing the common law
Judiciary cannot strike down a statute as unconstitutional, due to doctrine of Parliamentary sovereignty
Senior members of judiciary are sometimes appointed to chair public enquiries, which may damage the independence of the judiciary, particularly where they are politically sensitive enquiries
In what ways is there a separation between the legislature and judiciary?
HC Disqualification Act – provides that judges cannot be members of HC
Constitutional convention that members of Parliament will not criticise judges
Constitutional convention that members of the judiciary will not become involved in political activities
Sub-judice rule – Parliament refrains from discussing matters currently or waiting to be heard by the courts
Bill of Rights 1689 guaranteed freedom of speech in Parliament, so MPs cannot suffer legal sanctions for comments made in Parliament
How can the separation of powers in UK be briefly summarised?
Considerable overlap between executive and legislature
Substantial degree of separation between judiciary and other branches
