THE SEPARATION OF POWERS AND RULE OF LAW Flashcards
What do the rule of law and separation of powers prevent from happening?
- strengthen the legitimacy of the UK constitution
- prevent the arbitrary exercise of power
- make sure the power is evenly distributed between the executive, the legislature and the judiciary
What is Dicey’s definition of the rule of law?
1) No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of the law established in the ordinary legal manner before the ordinary courts of the land … It means … the absolute supremacy … of regular law as opposed to the influence of arbitrary power’
2) ‘… no man is above the law … every man and woman, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals’
3) ‘… the general principles of the constitution (for example, the right to personal liberty, or the right of public meeting) are with us as a result of judicial decisions … in particular cases brought before the courts.’
Why is the rule of law important?
- the government is prevented from exercising arbitrary power
- the government can be held accountable for its actions (through judicial review where courts make sure government doesn’t abuse powers)
- the law is set out clearly for all citizens
- someone should not be punished for an act that was not a crime at the time they carried out the act
- equality before the law for all citizens
- not special exemptions for government
- citizens have access to legal remedies
- independence of the judiciary is maintained, thereby preserving the separation of powers + prevents government from exercising its powers in wrong manner
What did Raz say the function of the rule of law is?
His core argument is that the principal function of the rule
of law is to ensure that ‘the law should conform to standards designed to enable it effectively
to guide action’
- be openly and clearly stated, ie be readily accessible to the public;
- not have retrospective effect, ie operate prospectively only;
- be made by proper procedures;
- be relatively stable, ie not change frequently;
- provide for open and fair hearings; and
- be administered by an independent judiciary.
What does Lord Bingham’s say the core principle of the rule of law is?
’all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered by the courts.’
Lord Bingham broke this definition down into eight sub- rules:
1. The law must be accessible, intelligible, clear and predictable.
2. Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion.
3. The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.
4. The law must afford adequate protection of human rights.
5. Means must be provided for resolving, without excessive cost or delay, civil disputes that the parties cannot resolve themselves.
6. Ministers and public officers must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers.
7. The adjudicative procedures provided by the state should be fair.
8. The state must comply with its obligations in international law.
Are Dicey, Raz and Lord Bingham’s approach on the rule of law substantive or formal?
Raz:
- formal
- he believed that rule of law should be morally neutral and would lose its functional importance if it included concepts such as justice and non discrimination
- should not promote a social philosophy
- should try to make sure laws are made according to procedure and accessible and clear and stable
Dicey:
- formal
- agreed with Raz
Bingham:
- substantive
- not confined to procedural elements
- extends to fundamental rights
How does Section 1 of the Constitutional Reform Act 2005 and R v Attorney General 2005 acknowledge significance of the rule of law?
CRA 2005:
- acknowledges the importance of ‘the constitutional principle of the rule of law’ although, perhaps because of the difficulties of definition, does not seek to define it.
R v Attorney General:
- spoke of the rule of law enforced by the courts as ‘the ultimate controlling factor on which our constitution is based’.
Where have the courts used the rule of law to justify their judgments?
- A and others v Secretary of State for the Home Department [2005] 2 AC 68
- 2001 Act allowed foreign nationals suspected of being involved in terrorist activities to be detained indefinitely without trial
- HOL argued that this breaches article 5 and 14 of ECHR (right to liberty and security and protection from discrimination)
- only applied to foreign nationals and not British nationals suspected terrorists
- substantive approach to the rule of law
R (Corner House Research and Another) v Director of Serious Fraud Office 2008
- limits to the extent to which the courts will uphold the rule of law
- the Director of the Serious Fraud Office decided to halt an
investigation into the alleged corruption of a company engaged in arms trading with Saudi Arabia following a threat by SA to end
cooperation in counter terrrism activities if investigation continues - minister advised director that if they continue it would be dangerous for British citizens, arms trade and service personnel
- court decided this was a breach of rule of law
- on appeal, they decided that they public interest in investigating bribery was less important than public interest in protecting lives of British
Entick v Carrington 1765
- equality before the law
Entick was alleged to be the author of seditious writings. Agents of the King, acting under the warrant of the Secretary of State broke into Entick’s house and removed his papers. The act was found to be common trespass, as it was not justified by any specific legal authority; the Secretary of State was found liable in damages to Entick.
The defendants claimed they were acting under the authority of the Secretary of State, through the power of the Constables Act 1750. The court found that the Secretary of State did not have power to issue such a warrant, reiterating that state officials needed to have legal power to act and must abide by the law.
Case of Prohibitions
How does the separation of powers contribute to the rule of law?
- helps to secure judicial independence
What are the three branches of the separation of powers?
- the legislature (parliament) which makes law
- the executive (government) which implements or administers law
- the judiciary (courts) which resolves disputes about law
What are checks and balances?
- helps to minimise the overlap between the roles and personnel of the three branches of power between the different branches.
Explain the US’s approach to the separation of powers.
- want to avoid the dominance of the executive which is a prominent issue in UK
- executive: President, Vice President and members of presidents cabinet and various their agencies
- legislative: congress (senate and House of Representatives)
- judicial: Supreme Court and various federal court
Draw a chart showing the separation of powers between the executive and the legislature, including any overlap and the checks and balances in place.
Draw a chart showing the separation of powers between the legislature and the judiciary including any overlap and any cheeks and balances in place.
Draw a chart showing the separation of powers between the executive and the judiciary including any overlap and any cheeks and balances in place.
