the rule of law and separation of powers

Question 1

why is Dicey’s account of the rule of law said to be outdated?

Answer 1

failed to anticipate modern developments in administrative law

Question 2

What is Joseph Raz’s interpretation of the rule of law?

Answer 2

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’

Question 3

what are examples of rights given in the rule of law?

Answer 3

judicial/statutory recognition, right to liberty, right to a fair hearing, access to justice, equality before the law, limits of the rule of law

Question 4

what is the executive made up of?

Answer 4

Monarch, PM and other government ministers, civil service, memebrs of police and armed forces

Question 4

what is an absence of a ‘break’ in the constitutional history of the UK?

Answer 4

means our constitution has developed on an ad hoc basis and remains unwritten/uncodified

Question 5

what is ‘central government’ in reference to the executive?

Answer 5

Monarch, government ministers and members of civil service

Question 6

what is the legislative made up of?

Answer 6

Monarch, HoL and HoC

Question 7

what is the judiciary made up of?

Answer 7

Monarch, all legally qualified judges, and magistrates

Question 8

why is the Monarch part of the legislature?

Answer 8

because they must give Royal Assent before a bill that has passed through Parliament has become an Act

Question 9

why is there an overlap between the executive and legislature?

Answer 9

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

Question 10

why is the UK’s system of government sometimes criticised as being an ‘elective dictatorship’?

Answer 10

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

Question 11

what are examples of checks and balances that enable Parliament to fulfil the role of scrutinising the Government?

Answer 11

questions, debates, general committees, select committees, Parliamentary and Health Service Ombudsman, Mps may reject government bills

Question 12

what is judicial independence?

Answer 12

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

Question 13

judicial independence from executive secured by Appointment

Answer 13

Judicial appts now dealt with by JAC- politically impartial and free from executive control

Question 14

judicial independence from executive secured by tenure

Answer 14

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

Question 15

judicial independence from executive secured by salary

Answer 15

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

Question 16

judicial independence from executive secured by immunity from civil action

Answer 16

judges have wide ranging immunity from tort claims in respect of their judicial actions i.e. cannot be sued for making an error

Question 17

judicial independence from executive secured by constitutional conventions

Answer 17

members of executive do not criticise judicial decisions and members of judiciary do not engage in political activity

Question 18

judicial independence from executive secured by sub judice rule

Answer 18

P refrains from discussing matters currently being heard or waiting to be heard by the courts

Question 19

judicial independence from executive secured by contempt of court laws

Answer 19

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

Question 20

what is role of Lord Chancellor

Answer 20

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

Question 21

what is constitutional reform act 2005?

Answer 21

a remedy for the overlap of executive and judicial branches of state

Question 21

what are the reforms given in CRA 2005?

Answer 21

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)

Question 22

what is the system for appointing judges?

Answer 22

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

Question 23

what are judicial functions of executive?

Answer 23

Article 6 of ECHR reduces quasi judicial functions of executive but executive members do continue to perform quasi judicial functions in some areas e.g. Compulsory Purchase Orders

Question 24

how does the judiciary hold the executive to account?

Answer 24

judiciary has no power to declare actions of executive to be unconstitutional but judiciary si able is ensure that executive doesnt exceed or abuse powers it i sgranted and have used correct procedure

Question 25

where does the executive derive its power from?

Answer 25

statute and royal prerogative