The Separation of Powers and Rule of Law

Question 1

The doctrine of the separation of powers is a legal principle developed by the courts.

Is this statement true or false?

True

False

Answer 1

Feedback
the principle of the separation of powers is a political theory developed by, amongst others, Montesquieu.

Question 2

Which ONE of the following propositions is NOT an example of the separation of powers between Parliament and the judiciary?

The sub-judice rule

The convention that MPs will not criticise an individual judge

The provisions of section 1 of the House of Commons (Disqualification) Act 1975

The creation of the Judicial Appointments Commission

Answer 2

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Well done - the creation of the Judicial Appointments Commission is an example of the separation of powers between the judiciary and the executive. The Judicial Appointments Commission is an independent body with a significant role in the appointment of new members of the judiciary.

Question 3

Which ONE of the following propositions is NOT part of Lord Bingham’s eight sub-rules of the rule of law?

the law must be accessible, intelligible, clear and predictable

the law must afford adequate protection of human rights

the law requires that the judiciary is wholly independent of the executive and legislative branches of state

Ministers and public officers must exercise the powers conferred on them reasonably, in good faith, for the purpose for which powers were conferred and without exceeding the limits of such powers

Answer 3

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The correct answer is C. Lord Bingham did not comment specifically on judicial independence from the executive and legislative branches of state, although he did make it clear that questions of legal rights and liabilities should be decided by the courts.

Question 4

In ‘An Introduction to the Study of the Law of the Constitution’ (1885), AV Dicey identified the rule of law as having three essential components.

Is this statement true or false?

True

False

Answer 4

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Dicey did identify three essential components of the rule of law. These are set out in Unit 1: Sub-unit 2 of your Public Law Study Manual.

Question 5

Which ONE of the following is NOT an example of the traditional doctrine of the separation or powers?

The division of legislative power between the House of Lords and the House of Commons

The rule that civil servants may not sit in the House of Commons

The principle that the courts may not question proceedings in Parliament

The principle that the courts will not adjudicate on questions involving national security

Answer 5

Feedback
you should have chosen A. The House of Lords and the House of Commons are in fact both parts of the legislature, and so the division of powers between them is not part of the doctrine of the separation of powers

Question 6

In the USA, the Senate is responsible for the nomination of judges to sit in the Supreme Court. The President will then accept or reject this nomination.

Is this statement true or false?

True

False

Answer 6

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The President nominates judges to sit in the Supreme Court, and it is the Senate which then either accepts or rejects this nomination.

Question 7

Indicate whether the following statement is true or false.

It is a breach of the doctrine of the separation of powers if the government uses its control of the House of Commons to prevent debate of an important public issue.

True

False

Answer 7

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Well done - t he doctrine of the Separation of Powers requires that the Executive should not be able to interfere with the function of the Legislature. Debate is an important function of Parliament, so any interference with this by the Executive would be a breach of the doctrine.

Question 8

In the United Kingdom, government ministers are appointed from members of the House of Commons and the House of Lords. Indicate whether the following statement is true or false:

The fact that Ministers as members of the Executive are appointed from the Legislature means that in the UK the Executive and Legislature do not have separate functions.
True

False

Answer 8

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i t may be that the same personnel are involved in both functions, but that the functions are nevertheless distinct. The Legislature is responsible for making the law and the Executive is responsible for administering/implementing that law

Question 9

Which ONE of the following statements is CORRECT?

All law is made by Parliament.

Supreme Court decisions can only be overruled by Parliament.

All courts have an unlimited power to change the common law.

Courts make new law when they overrule a previous decision.

Answer 9

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D must be correct as the law changes when a decision is overruled.
A is false - much law is judge-made.
B is false - the Supreme Court can overrule its own decisions.
C is false - the courts can only change existing law by deciding cases within the limits set by precedent and existing principle.

Question 10

A significant difference between the Supreme Court in the USA and the Supreme Court in the UK is that the Supreme Court in the UK has the constitutional power to strike down legislation enacted by Parliament which it holds to be unconstitutional, whereas the Supreme Court in the USA does not have such a power.

Is this statement true or false?

True

False

Answer 10

Feedback
it is in fact the Supreme Court in the USA which may strike down legislation enacted by Congress as being unconstitutional.

Question 11

An opposition political party wants a High Court judge to appear in an election broadcast supporting its policies on the criminal justice system. The judge supports those policies.

Should the High Court judge agree to appear in the election broadcast?

No, because pursuant to constitutional convention judges should not engage in party politics, whether supporting or opposing the government.

No, because statute prohibits judges from engaging in party politics, whether supporting or opposing the government.

No, because pursuant to constitutional convention judges should in public only support the policies of the governing party.

Yes, because pursuant to constitutional convention judges need only refrain from engaging in party politics outside their area of expertise.

Yes, because the constitutional convention that judges should refrain from engaging in party politics is suspended once a general election has been called.

Answer 11

Feedback
Option A is in fact correct. It is a constitutional convention that judges should refrain from participating in party politics. As it is a convention, it is a non-legal rule rather than a statutory one; hence Option B is wrong.

Option C is wrong because the convention precludes any involvement in party politics, not just involvement on behalf of an opposition party.

Options D and E are wrong because the convention is not qualified in the way they suggest.

Question 12

A cabinet minister criticised the UK government’s foreign policy in a TV interview. Despite calls from the opposition parties for the minister’s resignation, she has refused to resign.

Which of the following best describes the constitutional position?

As the cabinet minister has breached a constitutional rule, the Prime Minister is likely to dismiss her.

As the cabinet minister has breached a constitutional convention, the Prime Minister is likely to dismiss her.

As the cabinet minister has breached a constitutional convention, the Prime Minister is likely to apply to the High Court to dismiss her.

As the cabinet minister has breached a constitutional rule, the Prime Minister is likely to apply to the High Court to dismiss her.

Although the cabinet minister has not breached a constitutional convention, the Prime Minister is likely to dismiss her for criticising government policy.

Answer 12

Feedback
Option B is actually correct. Pursuant to the constitutional convention of collective cabinet responsibility, cabinet ministers must support government policy in public even if they disagreed with it in cabinet discussions. A minister who cannot support government policy should therefore resign, for example as Robin Cook did in 2003, when he opposed the war in Iraq. Failure to resign will normally result in the Prime Minister dismissing the minister concerned.

Option A is wrong as collective cabinet responsibility is a constitutional convention and not a legal rule.

Accordingly, Option C is wrong as courts do not have the power to enforce conventions as they are non-legal rules.

Option D is wrong as, like Option A, it erroneously states collective cabinet responsibility is a legal rule.

Option E is wrong because the cabinet minister has breached a constitutional convention.

Question 13

A client intends to stand for election as a Member of the UK Parliament. She works part time as a serving police officer and believes that she will be able to combine both roles. She would like to know whether there is any reason why she could not be both an MP and a serving police officer.

Will the client be able to combine the roles of police officer and Member of Parliament?

Yes, because there is nothing to prevent a police officer from being a Member of Parliament.

Yes, because there is a statutory provision permitting police officers to become Members of Parliament.

Yes, because as a member of the Executive, she would be supporting the Legislature.

No, because certain members of the Executive, including police officers, are prevented by statute from being members of the Legislature.

No, because you cannot be a member of both the Legislature and the Executive.

Answer 13

Feedback
Option D is in fact correct because s1 of the House of Commons Disqualification Act 1975 provides that certain members of the Executive, including police officers, are not permitted to hold Parliamentary office.

Option A is wrong because there is a specific statutory prohibition on police officers holding Parliamentary office.

Option B is wrong because, although there is a specific statutory provision, its effect is to prohibit police officers from holding Parliamentary office.

Option C is wrong because it is irrelevant that the client may be supporting another branch of state in her role as a police officer since there is a statutory prohibition on her holding Parliamentary office.

Option E is wrong because it is possible to be a member of both the Legislature and the Executive, e.g. as an elected member of the House of Commons who is also serving as a government Minister. It is not possible in this case because there is a specific statutory prohibition.

Question 14

The government is considering whether to launch missile strikes on a suspected terrorist base in an overseas country. It believes the terrorists concerned pose a direct and imminent threat to the UK. The government has asked the Attorney-General for advice as to whether parliamentary approval is required for the missile strikes.

Which of the following best describes whether parliamentary approval is required?

The decision whether or not to take military action involves the exercise of a prerogative power and parliamentary approval is unnecessary as the government is best placed to judge the defence needs of the country.

Although it is probable that a convention has recently emerged that the government should obtain parliamentary approval before taking military action, where an emergency exists the government need not obtain prior approval.

It is probable that a convention has recently emerged that the government should obtain parliamentary approval before taking military action, so the government must obtain prior approval.

Although it is a statutory requirement that the government should obtain parliamentary approval before taking military action, where an emergency exists the statute dispenses with the need for prior approval.

It is a statutory requirement that the government should obtain parliamentary approval before taking military action, so the government must obtain prior approval.

Answer 14

Feedback
That’s right. Option B is correct. The Cabinet Manual states that the government has acknowledged that a convention has developed that the House of Commons should have an opportunity to debate the matter before military action is taken, except where an emergency exists and such action would not be appropriate.

Option B is a better answer than option A because the reason parliamentary approval is not needed in the instant case is the existence of an emergency.

Option C is wrong because it ignores the possibility of dispensing with the need for parliamentary approval where it would not be appropriate, as in the instant case.

Options D and E are wrong because taking military action is a prerogative power, not a statutory one.

Question 15

A High Court Judge is hearing an application for judicial review in the Administrative Court. The applicant seeks to quash a local government decision to allow a large housing estate to be built directly behind his garden. His argument is that the large housing estate will be a burden on local amenities such as school, doctors and roads, without providing any additional amenities within the new estate.

The Judge does not quash the decision and states, “It is in line with current government policy that new housing stock is needed to relieve the housing crisis. It has been far too long that only those who already own land can purchase further property and I for one voted my MP in when I saw her part in making this policy law.”

Could it be said that this judge has acted in breach of the constitutional principle of separation of powers?

Yes, because he should not be giving his personal opinion of a government policy which forms the basis of the case he is hearing.

Yes, because he has made a political statement by impliedly stating which party he most recently voted for and then condoning the policy from a political standpoint.

No, because all judges give obiter dicta in their judgments to explain more fully the reasoning behind the ratio decidendi.

No, because the extracted statement from the judge is a true description of our country’s current housing needs.

No, because government policies are not legally binding. The judge must have applied a law.

Answer 15

Feedback
That’s right. Option B is correct, as it most clearly describes how the behaviour of the judge would breach the Separation of Powers. The Judiciary should not make political statements. That is for the Executive.

Option A is not the best answer, because it does not explicitly make the important point that the judge’s words appear to express political bias.

Options C, D and E are all wrong, because they overlook the inherently political wording used. It does not matter whether the judge is ‘right’ in his words; his job is to interpret and apply law.

Question 16

The UK and Nigeria are proposing to enter a treaty relating to data protection and internet security. The UK government proposes to ratify it using the royal prerogative. Some British businesses, relying on expert economic analysis, believe the treaty will be highly damaging to their interests and will give a competitive advantage to Nigerian businesses. They would therefore like to challenge the treaty in the UK courts.

Can the businesses bring a successful action against the treaty?

Yes, because the courts are willing to rule on how the government exercises its prerogative powers and on the facts the treaty seems unreasonable.

Yes, because the courts are willing to rule on the extent of prerogative powers and it is doubtful whether the UK government can enter into treaties using prerogative powers.

No, because traditionally UK courts have refused to rule upon the extent of prerogative powers and how they are exercised.

No, because UK courts regard certain prerogative powers as non-justiciable and so refuse to review how they are exercised.

No, because traditionally UK courts have refused to rule upon how prerogative powers are exercised.

Answer 16

Feedback
Option D is in fact correct. Historically UK courts have been reluctant to review the exercise of prerogative powers, but their approach shifted in the CCSU case and they are now willing to review the exercise of some prerogative powers.

While option E reflects the traditional approach of the UK courts, option D is a better answer as the courts no longer follow that approach. However, the courts regard treaty making as a political issue for the government to decide upon (Blackburn v Attorney-General) and so is not subject to review by the courts. Option A is therefore wrong because the courts will not interfere even if the treaty is unreasonable.

Option C is wrong because the courts have for centuries been willing to rule on the extent of prerogative powers.

Option B is wrong as treaty-making is a prerogative power.

Question 17

A Bill currently before Parliament provides that it will be a criminal offence for individuals to disclose confidential information regarding contracts that the government enters into to obtain essential medical supplies. The Bill provides that a committee of civil servants should be able to try individuals for this offence and to impose fines on individuals who are found guilty. An opposition MP claims that the Bill breaches the rule of law.

Is the opposition MP correct in claiming that the Bill breaches the rule of law?

No, because Bills that are enacted by Parliament using the correct procedures comply with the rule of law.

No, because trying individuals for criminal offences and imposing fines on them is a function of the executive as well as of courts of law.

Yes, because no one should be punished except for a breach of the law established before a court of law.

No, because the rule of law is a political theory and so it is not practical to claim whether or not legislation complies with it.

Yes, because the rule of law is a key principle of the UK constitution and Parliament cannot legislate contrary to it.

Answer 17

Feedback
That’s right, Option C is correct. It reflects Dicey’s first principle of the rule of law, and the right to a fair trial before a court of law is generally acknowledged to be a core feature of the rule of law.

Option A is wrong. Although there is some debate as to whether the rule of law applies to the content of legislation, it is generally accepted that the executive should not be able to try and convict individuals for criminal offences; this is a function that belongs to the courts and reflects the separation of powers.

Option B is accordingly wrong as it too suggests that it is a function of the executive to try criminal cases and impose fines.

Option D is wrong. Although the rule of law is a political theory, whatever definition of the rule of law one adopts, it is possible to evaluate whether legislation complies with it.

Option E is wrong because, although the rule of law is a key principle of the UK constitution, Parliamentary sovereignty means Parliament can pass legislation that violates it.

Question 18

Following a series of terrorist attacks in the UK, the government has passed anti-terrorist legislation (fictitious) to permit the indefinite detention of anyone suspected of being involved in terrorist related activity. A woman is arrested under the anti-terrorism law and detained for three months despite not being charged with any offence. When she is finally brought before a court, she argues that her indefinite detention is in breach of the rule of law.

Which of the following best describes the legal position?

The rule of law has not been breached because Parliament passed legislation to allow for indefinite detention.

The rule of law does not apply in terrorist cases.

The rule of law only applies in civil and not in criminal cases.

The rule of law has been breached but that is permitted where Parliament has expressly authorised indefinite detention.

The rule of law has been breached even though Parliament has passed legislation allowing for indefinite detention in these circumstances.

Answer 18

Feedback
Option E is in fact correct because even though the indefinite detention has a statutory basis, it remains contrary to the rule of law (as propounded by Dicey) that citizens should be detained and subject to punishment even though they have not broken the law.

Option A is wrong because the legislation permits indefinite detention contrary to Dicey’s principle that citizens should be detained and subject to punishment only if they have broken the law.

Option B is wrong because the rule of law applies in all situations without exception.

Option C is wrong because the rule of law applies in both a civil and criminal context and arguably more strictly in a criminal context where one’s liberty is at stake.

Option D is wrong because Parliament’s actions in passing the legislation have contributed to the breach of the rule of law rather than preventing or curing any breach. Whilst Parliament can pass any legislation it wishes, that legislation is still open to criticism if it breaches the rule of law.

Question 19

Last year, legislation (fictitious) was enacted which requires all citizens to pay an annual education tax and failure to pay such tax will result in fines or imprisonment. In recent months the UK Government made a policy announcement that as from the following tax year, all government ministers will be excluded from the obligation to pay the tax.

Does the exclusion breach the traditional definition of the rule of law?

Yes, because the rule of law requires equality before the law for all citizens and this would therefore include government ministers.

Yes, because the rule of law requires that legislation should not operate retrospectively, and this would apply to the legislation enacted.

No, because by convention equality before the law for all citizens does not apply to government ministers.

No, because the rule of law permits government authorities to exclude their ministers from the effect of any legislation.

No, because of Parliamentary Sovereignty, government can decide who the law will apply to.

Answer 19

Feedback
Option A is correct. This option is concerned with equality before the law and stems from the traditional definition of the rule of law. This means that, not only should law apply equally between citizens, but also between public officials and citizens. Therefore, there should be no exemption of ministers as a result of their position.

Option B is wrong. It is considered that observing the rule of law requires that law does not operate retrospectively (i.e. someone should not be punished for an act that was not a crime at the time they carried out that act, if that act subsequently becomes a crime); this is not relevant to the facts. In the scenario, we are not told that the legislation has a retrospective effect nor that it is being applied retrospectively.

Option C is wrong. Whilst in the UK constitution conventions play an important part, there is no such convention which permits such an exclusion.

Option D is wrong. The traditional definition of the rule of law does not permit such an exclusion.

Option E is wrong. Parliamentary sovereignty and the rule of law are two separate concepts. Parliament Sovereignty states that Parliament is the supreme law-making body and may enact or repeal laws on any subject. This however does not mean that Parliament when enacting law is not or could not be in breach of the rule of law.