the rule of law and separation of powers Flashcards
why is Dicey’s account of the rule of law said to be outdated?
failed to anticipate modern developments in administrative law
What is Joseph Raz’s interpretation of the rule of law?
the principal function of the rule of law is to ensure that ‘the alw should conform to standards designed to enable it effectively to guide action’
what are examples of rights given in the rule of law?
judicial/statutory recognition, right to liberty, right to a fair hearing, access to justice, equality before the law, limits of the rule of law
what is the executive made up of?
Monarch, PM and other government ministers, civil service, memebrs of police and armed forces
what is an absence of a ‘break’ in the constitutional history of the UK?
means our constitution has developed on an ad hoc basis and remains unwritten/uncodified
what is ‘central government’ in reference to the executive?
Monarch, government ministers and members of civil service
what is the legislative made up of?
Monarch, HoL and HoC
what is the judiciary made up of?
Monarch, all legally qualified judges, and magistrates
why is the Monarch part of the legislature?
because they must give Royal Assent before a bill that has passed through Parliament has become an Act
why is there an overlap between the executive and legislature?
statutory limitations on members of executive also being members of legislature but government ministers can also be MPs- some also say that Government controls Parliament
why is the UK’s system of government sometimes criticised as being an ‘elective dictatorship’?
although people elect the Government during a general election, once that Government is elected it can act as it pleases and get Parliament to enact its legislative programme in full
what are examples of checks and balances that enable Parliament to fulfil the role of scrutinising the Government?
questions, debates, general committees, select committees, Parliamentary and Health Service Ombudsman, Mps may reject government bills
what is judicial independence?
Government is under 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
judicial independence from executive secured by Appointment
Judicial appts now dealt with by JAC- politically impartial and free from executive control
judicial independence from executive secured by tenure
job security given to judges of senior courts Act of Settlement 1701 and modern basis Senior Courts Act 1981- senior judges hold office ‘during good behaviour’ and may be dismissed by Monarch following votes of both Houses of P
judicial independence from executive secured by salary
judicial salaries determined by independent body and paid from the Consolidated Fund- certain expenditure is authorised in permanent form and does not require annual approval so payment of salaries is insulated from executive/parliamentary control
judicial independence from executive secured by immunity from civil action
judges have wide ranging immunity from tort claims in respect of their judicial actions i.e. cannot be sued for making an error
judicial independence from executive secured by constitutional conventions
members of executive do not criticise judicial decisions and members of judiciary do not engage in political activity
judicial independence from executive secured by sub judice rule
P refrains from discussing matters currently being heard or waiting to be heard by the courts
judicial independence from executive secured by contempt of court laws
Contempt of Court Act 1981- ensures no outside interference with administration of justice- prevents government ministers commenting prejudicially outside proceedings in P on cases before the courts while the sub judice rule applied to proceedings in P
what is role of Lord Chancellor
before 2005 memebr of both E and J- a government minister so political appointee with seat in cabinet and Head of J in England and Wales responsibel for the appointmnet of senior memebrs of the Judiciary
what is constitutional reform act 2005?
a remedy for the overlap of executive and judicial branches of state
what are the reforms given in CRA 2005?
role of lord chancellor as head of judiciary transferred to lord chief justice who nwo has full responsibility for training of judges and make written representations to P on matters relating to the J, creation of the JAC to ensure that appointment of judges occurs solely on merit and not influence by political considerations (no longer down to executive)
what is the system for appointing judges?
PM must advise Monarch on filling important vacancies, Lord Chancellor must consult LCJ before making decision and asks JAC to convene a selection panel, vacancies in SC made by Monarch on advice of PM who has recommendation from LC, primary responsibility on independent bodies to minimise any perception of improper political involvement, selection based solely on merit
