Separation of powers and the Rule of Law Flashcards
Are the UK courts willing to review the exercise of some prerogative powers?
No, because UK courts regard certain prerogative powers as non-justiciable and so refuse to review how they are exercised. (this is the better answer now)
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.
Quick Q:
Using the procedures set out in the Parliament Acts 1911 and 1949, Parliament passed a (fictional) Act which expressly banned judicial review of any act or omission of any public body.
If a challenge to the validity of this Act was brought in the courts, would the courts hear the case?
Yes, the courts would hear the challenge and determine whether the Act was passed correctly.
Option C is correct.
Option A is wrong, it makes use of obiter dicta in cases such as R (Jackson) v Attorney General [2005] UKHL 56 which suggest there are some things that Parliament cannot do. An example given by Baroness Hale is removing the possibility of judicial review. However, such statements are obiter and would involve a significant development in the jurisprudence. The courts are unlikely, on the other hand, to simply apply such provision. Option B is wrong, for the same reason.
Option C reflects what happened in the Jackson case, where the House of Lords faced a challenge to the validity of the Hunting Act 2004 – on strict interpretation of the Enrolled Act rule, the HL would not be able to consider whether the Act was passed correctly, but in Jackson the HL confirmed that they were able to do so when the question related to the legitimacy of Parliamentary process. For that reason, option C is the best answer applying established principle.
Option D is wrong, it is a variant on option B, but in this case rather than upholding the relevant provision the courts simply decline to hear the case. There is no substantive doctrine of non-justiciability in UK law, so this option is unlikely to be accurate.
Option E is wrong, as although the statement that the courts cannot judicially review Acts of Parliament, the fact pattern does not suggest the proposed action would be JR.
Quick Q:
The minister in charge of an emergency bill being presented to the UK Parliament to deal with a major public health emergency is concerned about the approach the courts might take to certain provisions in it, in particular provisions allowing for the indefinite detention without trial of people who disobey provisions prohibiting anyone from being more than ten miles from their home. The minister has asked for advice regarding the possible response of the courts should the courts find that the bill (when enacted) violates the rule of law.
Which of the following best describes the possible response of the courts?
The High Court or above is likely to issue a declaration of incompatibility pursuant to s 4 Human Rights Act 1998 should the legislation violate the ECHR. The legislation will, however, remain in force.
Option C is correct. It may be possible for the government to introduce detention without trial to combat a public health emergency, but indefinite detention is likely to violate Article 5 of the ECHR – the right to liberty and security – as well as being contrary to the rule of law. Declarations of incompatibility do not, however, invalidate the legislation although they put pressure on the government to amend or repeal the offending provisions. Accordingly, option D is wrong as the courts have no power under the Human Rights Act to disapply legislation.
Option C is a better answer than option A. While the courts are likely to apply the legislation due to parliamentary sovereignty, it is highly probable that they would issue a declaration of incompatibility.
Option C is also a better answer than option B as option B is based on obiter dicta and the Supreme Court has never actually struck down legislation in this way. UK courts have disapplied statutes for infringing EU law, but not for infringing the rule of law.
Option E is wrong as retained EU law only has limited supremacy over Acts of Parliament enacted before the end of the transition period. Moreover, there is unlikely to be any retained EU law with which the legislation in this question would conflict.
Lord Hailsham described the United Kingdom’s government as being an “elective dictatorship”.
Why?
Every five years or so, the public elects a new Executive; until the public vote again the Executive can usually take control of the legislative agenda because the Executive dominates the Legislature when it has a majority in Parliament, and the public cannot remove the Executive from office.
Is parliamentary approval required before military action is taken in an emergency?
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.
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.
Can someone combine the roles of police officer and Member of Parliament?
No, because certain members of the Executive, including police officers, are prevented by statute from being members of the Legislature.
D is 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.
Which of the following statements best reflects the Separation of Powers doctrine within the UK constitution?
The monarch is the head of each branch of State but, by convention, cannot exercise the powers personally.
Option C is correct. The UK operates a constitutional monarchy which means that the King remains head of each branch without being able to use powers personally. By convention, they are used by the executive.
Modern approach to the rule of law
Requires a non-discriminatory application of the law to ensure legitimacy.
So answer to example was: No, because the laws are grossly oppressive to the minority population and lack the legitimacy on which the rule of law depends.
Which of the following best describes an aspect of the rule of law as set out by the judiciary in England and Wales?
The rule of law is a process of enforcing prospective, uniform and clearly pre-agreed rules, regardless of the content of the laws.
Quick Q:
The UK Government, which has a large majority in the House of Commons, decides that judges have found in favour of too many challenges to actions of the Executive. The Government wants to ensure that it can exert more control over the judiciary and their decisions.
With reference to the doctrine of the Separation of Powers what best describes how the Government might do this?
The Government can use its majority in the House of Commons to ensure the law is changed to support the actions of the Executive and can override any precedent set by case law.
Option B is correct. It describes what the Government can do as, with its majority, it can introduce law which cuts down on opportunities for judicial review and which makes decisions of the Executive immune from challenge. The House of Lords can only delay such legislation and the Queen, by convention, will not refuse Royal Assent.
Option A is wrong, as the Judicial Appointments Commission ensures that there is some transparency in the system and judges are appointed on merit.
Option C is wrong, as the salaries are decided by the Senior Salaries Board and paid out of the Consolidated Fund so are independent of Government.
Option D is wrong, as ministers criticising judicial decisions will be in breach of a convention.
Option E is wrong, as there is no Royal prerogative power to dismiss judges.
Is the exercise of a Royal Prerogative able to be judicially reviewed?
Yes - The Royal Prerogative is used by the executive when making treaties. The Royal Prerogative is capable of being judicially reviewed.
HOWEVER: there is an exception to this. There are certain Royal Prerogative powers which are not ‘justiciable’ (i.e. not an appropriate area for the involvement of the courts). The making of treaties falls within this exception. This was confirmed in the case of CCSU v Minister for Civil Service [1984] UKHL 9 and the later case of in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5.
Traditional and modern interpretation of the rule of law
Requires that the law should be clear, predictable and citizens should be detained only if they have broken the law. In the scenario we are told the client is only suspected of terrorist activities and that the client has been detained indefinitely yet has not been charged. The actions by the authority therefore breach the rule of law.
Can senior judges be dismissed?
Which of the following best describes an aspect of the relationship between the executive and the judiciary under the UK constitution?
Senior judges cannot be dismissed from office by the executive, but only following a vote by both Houses of Parliament.
Under the Senior Courts Act 1981 (and the Constitutional Reform Act 2005 in the case of Justices of the Supreme Court), senior judges may be dismissed by the monarch only following a vote of both Houses of Parliament.
Quick Q:
Parliament has passed a (fictional) Act which purports to prevent the possibility of any judicial review of any act or omission of any public body. The provisions of the Act precluding judicial review are broadly worded, and do not refer to any specific head of judicial review being precluded.
If a challenge to this Act were brought in the courts, what is the most probable outcome?
The courts would interpret the Act in a way such that it only excluded judicial review of decisions which were free of legal error.
C is correct.
A is wrong, it makes use of obiter dicta in cases such as R (Jackson) v Attorney General [2005] UKHL 56 which suggest there are some things that Parliament cannot do. An example given by Baroness Hale is removing the possibility of judicial review. However, such statements are obiter and would involve a significant development in the jurisprudence. The courts are unlikely, on the other hand, to simply apply such provision.
C is therefore correct, as it would more clearly involve the courts applying established precedent on ouster clauses such as Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 and R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22. It is important, too, that the question refers to the provision being broadly worded, which give the courts the possibility of presuming that Parliament did not intended to entirely prevent challenge to executive decisions. For that reason, option C is the best answer applying established principle.
B is wrong, for the same reason.
D is wrong, it is a variant on option B, but in this case rather than upholding the relevant provision the courts simply decline to hear the case. There is no substantive doctrine of non-justiciability in UK law, so this option is unlikely to be accurate.
E is wrong, it is a variant on option C and thus has some merit, but it represents a very limited version of judicial review, akin to that in Liversidge v Anderson [1942] AC 206, which would allow the executive significant discretion. It is thus rather out of date, and certainly less likely than option C.
Quick Q:
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?
Yes, because no one should be punished except for a breach of the law established before a court of law.
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.
