Separation of Powers and Rule of Law Flashcards
(17 cards)
What structure of separation of powers does the UK have?
Fusion of powers; executive emerges from the legislature
What happens if courts establish a legal principle that Parliament wants to overturn?
It can simply overturn it - new Act of Parliament
How can the relationship between the executive and the legislature be described?
Checks and balances
Are judges paid?
Yes - anyone in Senior Courts is paid
In what ways are judges immune?
Immune from legal proceedings for actions that would otherwise be tortious as long as the action is done in a judicial capacity in a court of justice e.g. would not apply if you were speaking to the media
What is the purpose of JR?
To prevent abuse of power by the executive
To uphold individual rights
What particular area will the judiciary be reluctant to encroach upon?
Government policy - particularly national security
What is the legality principle?
Fundamental rights cannot be overridden by general or ambiguous words - must be very clear and specific
What is an essential element of the rule of law?
Controlling the exercise of such discretionary power granted by modern legislation
How have attitudes changed towards judicial discretion?
Defence to more activism
What makes exercise of executive discretion lawful?
Must not frustrate the policy or purpose of the statute which contains the discretionary power
If a statute asks for discretion - failure to grant at all can also be considered unlawful
When can courts JR an Act of Parliament?
Only to consider if the Act was passed correctly
What does the modern approach to the rule of law entail?
A non-discriminatory approach to the application of the law to ensure legitimacy
Any law which is “grossly oppressive to the minority population” will be illegitimate from a rule of law perspective
In what instance could a Senior Judge be dismissed from Parliament?
Only following a vote by both Houses of Parliament
What does sub judice mean? Is it a constitutional convention?
Under judicial consideration and therefore prohibited from public discussion elsewhere
Not a convention but a formal law of Parliament
Can a Monarch refuse to grant Royal Assent to a bill?
No - convention dictates
How can Parliament abolish a prerogative power
Replacing it with a specific statute which will always dominate
