Separation of Powers & The Rule of Law Flashcards
What is the principle of the rule of law?
Those exercising a government function should not be able to exercise power arbitrarily, but rather be subject to legal controls
What are 5 things required for the Rule of Law (updated Dicey definition)?
Legal certainty
- Citizens should be able to rely on laws that are made & set out clearly
Personal liberty
- Citizens should be detained & subject to punishment only if they have broken the law
Due process of the law
- Citizens have the right to fair procedures
Equality before the law
- All citizens should be equal before the law (no unjustified discrimination)
- Like cases should be treated in like ways
Courts are protectors of the law
Why is Rule of Law important?
GOVERNMENT:
- Is prevented from exercising arbitrary power
- Is held to account
LAW:
- Is set out clearly
- Does not operate retrospectively
EQUALITY
- Before the law
- Of access to the law
Means of legal redress
Independence of judiciary is maintained
What are the three powers ‘separated’ under the Separation of Powers?
Executive (makes law)
Legislature (implements/administers law)
Judiciary (resolves disputes about law)
What helps prevent the arbitrary exercise of power via a government?
Separation of Power
Rule of Law
What is the definition of separation of powers?
No overlap in the functions / personnel between different branches of state
Provides checks & balances which help prevent the arbitrary exercise of power via a government
Is there formal separation of powers in the UK ?
No (because no unwritten constitution)
What are some of the overlaps between the Executive & the Legislature?
Does the Government (EXEC) ‘control’ Parliament (LEG) ?
- Most ministers are MPs
- Most legislation comes from the Government
- Government has inbuilt majority in the Commons
- Weak role of the Lords
- Limited scrutiny of delegated legislation
- Henry VIII powers (govt amending primary leg by way of delegated leg)
- Lack of scrutiny over prerogative powers
- ‘Elective dictatorship’: Govt controls parliament
What are some of the ways that the Executive & Legislature are separated?
HoC (Disqualification) Act, ss1-2
- Statutory limitation on number of members of the executive who can be MPs
- Certain members of the executive cannot be MPs (eg. members of armed forces)
- Number of ministers in Commons limited to 95
There are ways the legislative can scrutinise the executive
- Debates, PMQs, committees
- Power to reject government bills
Conventions helping Parliament to hold Government to account
- Vote of no confidence
- Collective cabinet responsibility
- Individual ministerial responsibility
What are some of the ways that the Executive & the Judiciary overlap?
Quasi-judicial functionsof the Executive (eg. making compulsory purchase orders)
Judicial review of executive actions
- Is about PROCESS, not merits of decision
Non-justiciable prerogative powers
- Courts cannot intervene with eg. making of international treaties, control of armed forces
What are some of the ways that the Executive & the Judiciary are separated?
Judicial Appointments Commission - appoints judges, politically impartial
Judicial independence
- Security of tenure (can’t be dismissed by executive)
- Salaries (determined by independent body)
- Contempt of Court laws (no outside interference)
- Civil immunity (can’t be penalised if make error when carrying out duties)
Sub-judice rule
- Parliament refrains from discussing matters being heard by courts
Convention that executive don’t criticise judicial decisions
Judicial review of executive actions
Extent of Royal Prerogative powers
- Decided by judiciary
- Established through case law that new prerog powers can’t be created, scope of existing poers cannot be extended
What are some of the ways that the Legislature & the Judiciary overlap?
Legislative function of the judiciary
- Does the judiciary perform a legislative function in interpreting statute & developing common law?
Polticisation of judciary?
- eg. concerns judges overseeing politically sensitive inquiries which have been biased in favour of the government
What are some of the ways that the Legislature & Judiciary are separated?
House of Commons (Disqualification) Act: judges cannot be MPs
Constitutional conventions
- MPs don’t criticise judicial decisions
- Judges don’t engage in political activity
Sub-judice
- Parliament refrains from discussing matters being heard in courts
Freedom of speech in Parliament (article 9 Bill of Rights 1689)
Constitutional Reform Act 2005 created Supreme Court
- Replacing judicial committee of the House of Lords
What is the sub judice rule?
Parliament refrains from discussing matters being heard by the courts
