Rule of Law and Separation of Powers & Accountability Flashcards
Lord Bingham 8 benefits/rule of law
All persons within the state are bound by and entitled to the benefit of the law
1) Law is accessible and clear
2) Questions as to rights are resolved by law
3) Law is applied equally
4) Ministers exercise powers in Good Faith
5) Protection of Fundamental Rights
6) Means provided for resolving disputes and issues
7) Fair Adjudicative procedures for all
8) Compliance by state in International and National Law obligations
Rule of Law: Content Free (formal/thin) Dicean view
Thin: All about procedure and process; very Legalistic
Dicey: Government officials should not have wide and arbitrary powers. No Man is above the law.
-Constitution is the result of the Ordinary Law
Rule of Law: Content Free (formal/thin) Raz view
Raz:
1) Formal Equality
2) Law is made by Process
3) Law is prospective not retrospective
4) There exists Open, General and Clear Rules
5) Independent Judiciary
6) Access to courts
Rule of Law: Content Rich (substantive/thick) Dworkin
Thick: Not just about procedures; the Rule of law affords a greater protection of Rights
Dworkin: Thin is too narrow and rigid
Substantive form:
1) Assumes citizens have Moral right and duties with respect to one another
2) Political Rights
3) Rules enforce Moral and Ethical rights
Protecting Rule of Law: Judiciary
Common law: Not much
Tort: Rely on Tort ro seek Courts protection and Remedy
Entick v Carrington
Statutory interpretation: Principle of Legality: courts interpret if a public body has a right to interfere with a common law right.
Ex Parte Pierson
Ex Parte Pierson
Decide if Home secretary could use any Act to justify his changing on the tariff on Murder Sentences:
Judges decided that Parliament did not intend to deprive people of their common law rights.
Entick v Carrington
Printer arrested for publishing. Judge could not find any law that justified the seizure and therefore His rights were protected under tort
R v Davis
He killed 2 people. in court to have witnesses protected they were covered and had their voices changed in order to remain anonymous.
He appealed that the trial was unfair as he could not utilize his right to see who was accusing him. the House of Lords allowed it.
-The government then enacted the Criminal Evidence Act 2008 which allowed the Anonymity of witnesses
Protecting Rule of Law: Government
Traditionally the Lord Chancellor ensured the compliance to rule of Law in the Judiciary and parliament as he was a member of the Judiciary, a minister and a Lord.
Post Constitutional Reform Act 2005 his role has greatly diminished and he is no longer a judge/head of judiciary.
-Me still must promote rule of Law.
Separation of Powers Template for design
Montesquieu: created the template for the design of a constitutional system which has a separation of 3 distance powers
Judiciary: Interprets Law
Executive: Develops Policy
Parliament: Enacts Laws
Le Suer: The idea is to have no one person with too much power, the roles are there to ensure a series of checks and balances upon each other.
Separation of Powers: The UK
Less separation of Powers in the UL between the Executive and parliament.
the PM and his cabinet are all ministers in the Legislature; thought to provide efficiency and stability
Executive dominance thesis:
Executive dominance thesis: First past the Post, Mass Party Politics and High party Discipline. when the Executive has formed a Majority government they effectively hold a large amount of Parliamentary power and sway.
Parliamentary Privilege
Parliamentary Privilege: The Court cannot restrain or prohibit debate and freedom of speech if the Legislature and its Ministers.
Separation of Powers: Judiciary vs Executive
The Executive can create delegated legislation for it to enact.
The Judiciary cannot review Primary Legislation for Illegality but they can review Secondary Legislation/Delegated Legislation
