Unit 4 Flashcards
(24 cards)
What is ‘legitimacy’ in the context of law?
Why is it important for laws to be legitimate, beyond just being legally enacted?
Legitimacy: Political power must derive from a valid source of authority that commands society’s respect. Rulers must have appropriate qualities and govern in the general interest, with constraints to prevent abuse.
Importance: Laws must not only be validly enacted but also legitimate to be obeyed.
Example: Apartheid laws in South Africa were validly enacted but lacked legitimacy due to gross oppression.
The Rule of Law - Historical Context
Magna Carta (1215): Enshrined the principle that not even the King was above the law, asserting limits on monarchical power.
Writ of Habeas Corpus: A court order requiring a detained prisoner to be brought before the court to test the legality of their detention.
The Rule of Law - Dicey’s Traditional Definition
Three Core Elements & Modern Interpretations:
“Absolute supremacy of regular law as opposed to the influence of arbitrary power” (Legal Certainty: Laws must be clear, certain, and publicly known.)
“Equality before the law… no man is above the law”: (State officials (e.g., police) are subject to ordinary law and have no special exemptions (Entick v Carrington).)
“General principles of the constitution… are with us as a result of judicial decisions”:
The Rule of Law - Importance
Prevention of Arbitrary Power (Government cannot act as it pleases; “regular” law is supreme.); Government Accountability through judicial review; Equality Before the Law: All citizens treated equally by the law; Non-Retrospectivity: No punishment for acts not illegal at the time they were committed.
The Rule of Law - Modern Interpretations (Lord Bingham)
“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.”
The Rule of Law - Formal vs. Substantive Conceptions
Formal Concept: Focuses on the form of law and procedures for law-making (e.g., clarity, accessibility, stability, proper enactment). It is morally neutral and does not include concepts like justice or human rights as part of the RoL itself.
Substantive Concept: Includes procedural elements but also extends to the content of the law, requiring it to uphold fundamental rights and values.
The Rule of Law - Contemporary Relevance: Right to Liberty
How does A and others v Secretary of State for the Home Department (Belmarsh case) [2005] illustrate the importance of the right to liberty and the Rule of Law?
Facts: Challenged provisions of Anti-terrorism, Crime and Security Act 2001 allowing indefinite detention without trial for foreign nationals suspected of terrorism.
Significance: Issued a Declaration of Incompatibility (s.4 HRA 1998). Lord Nicholls: “indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law.” Emphasised the heavy burden on the Government to justify such measures.
The Rule of Law - Contemporary Relevance: Access to Justice
Ruling: Supreme Court held the Fees Order was unlawful.
Significance: Lord Reed emphasised that the constitutional right of access to courts is “inherent in the rule of law.” Fees must be affordable and not render claims futile or irrational, otherwise they prevent access to justice. This case strongly affirmed that access to justice is a vital component of the Rule of Law.
The Rule of Law - Limits & Tension with Parliamentary Sovereignty
In theory, Parliament can pass any Act, no matter how arbitrary or oppressive, and courts cannot strike it down.
Principle of Legality (R v Secretary of State for the Home Dept, ex p Simms [1999], Lord Steyn):
Parliament can legislate contrary to fundamental human rights.
However, fundamental rights cannot be overridden by general or ambiguous words.
Parliament must “squarely confront” what it is doing and use “clear and specific provision to the contrary.” This ensures political accountability.
The Separation of Powers - The USA “Model”
Framers sought to avoid executive dominance (a perceived weakness of the British constitution) after independence.
The Separation of Powers - UK Constitution
No Formal Separation: Unlike the USA, UK has no formal “break” in constitutional history; its constitution developed ad hoc and remains unwritten/uncodified, so no formal system was put in place.
Achieving Separation: Achieves a partial separation of powers with a largely informal system of checks and balances.
Executive: Monarch, PM & government ministers, civil service, police, armed forces.
Legislature: Monarch, House of Lords, House of Commons.
Judiciary: Monarch, legally qualified judges, magistrates.
executive v legislature - “Elective Dictatorship” (Lord Hailsham, 1976):
Meaning: Voters elect government, but once elected, it can generally act as it pleases and pass its legislative program fully, with Parliament merely “rubber stamping” it.
Reasons: “First past the post” electoral system often gives governing party majority in Commons; government controls parliamentary timetable; most bills from government pass; confidence votes pressure MPs; strong party whips; extensive delegated legislation; “Henry VIII powers” (amend primary legislation); weak House of Lords.
Relationship between Executive & Legislature - Parliamentary Scrutiny
Formal Mechanisms (Checks & Balances):
Questions: Oral (e.g., PMQs) and Written questions to ministers.
Debates: Emergency debates, Opposition Day debates, debates on government bills (e.g., Second Reading).
Committees:
Public Bill Committees: Review detailed clauses of bills.
Select Committees: Examine “expenditure, administration and policy” of government departments, question ministers (including PM).
Relationship between Executive & Legislature - Overlap
House of Commons Disqualification Act 1975: Disqualifies certain executive members (civil servants, armed forces, police) from being MPs.
Limits Ministers in Commons: Caps number of government ministers who can be MPs (95).
Reality: Significant overlap exists as most government ministers are MPs or Peers.
Relationship between Executive & Judiciary - Importance of Judicial Independence
Essential for upholding the Rule of Law and ensuring fair, impartial justice, preventing arbitrary exercise of power by the executive.
Constitutional Reform Act (CRA) 2005, Section 3: Places a statutory duty on the Government to uphold judicial independence; ministers must not seek to influence specific decisions.
Relationship between Executive & Judiciary - Securing Judicial Independence
Appointment: Handled by the politically impartial Judicial Appointments Commission (JAC).
Salary: Determined by an independent body (Senior Salaries Review Board) and paid from the Consolidated Fund, insulating it from annual executive/parliamentary control.
Immunity from Civil Action: Judges have wide-ranging immunity for their judicial actions, preventing unsuccessful litigants from suing them.
Constitutional Conventions: Executive members do not criticise judicial decisions; judges do not engage in party political activity.
Relationship between Executive & Judiciary - CRA 2005 Reforms
CRA 2005 Reforms: Lord Chancellor’s role as head of judiciary transferred to the Lord Chief Justice. Lord Chancellor remains Cabinet member, combined with Secretary of State for Justice.
Relationship between Executive & Judiciary - How Judiciary Holds Executive to Account
Through the process of judicial review.
Sources of Executive Power:
Statute: Courts ensure statutory powers granted by Parliament are exercised in accordance with the purpose of the statute and are not exceeded or abused.
Royal Prerogative: Courts determine the extent of prerogative powers and, in most cases, can review their exercise for appropriateness.
Focus of Judicial Review: Courts examine only the legality of a decision or action, not its merits. They ensure the executive acted within its powers and used correct procedures, preserving the separation of powers.
Relationship between Executive & Judiciary - Politicisation of the Judiciary
Judiciary risking political neutrality due to involvement in sensitive issues and politicians criticising judges.
Judges Chairing Public Inquiries: Inquiries into politically sensitive issues (e.g., Hutton Inquiry, Leveson Inquiry, Grenfell Tower Inquiry) can lead to accusations of bias.
HRA 1998 Cases: Courts deciding cases with a “political” element, balancing civil liberties vs. national security (e.g., anti-terror legislation cases).
Politicians Criticising Judges: Frequent criticisms over sentencing, anti-terror judgments, and especially EU exit cases (Miller No 1 - “enemies of the people” headline, criticised by Lord Neuberger). This suggests tension and government unhappiness with court decisions perceived as trespassing into political realms.
Relationship between Legislature & Judiciary - Keeping Separate
House of Commons (Disqualification) Act 1975: Disqualifies judicial office holders from being MPs.
‘Sub-judice’ Rule: Parliament refrains from discussing details of cases before or waiting to come before the courts.
Relationship between Legislature & Judiciary - CRA 2005 Reforms
Creation of the Supreme Court:
Replaced the “Law Lords” (Appellate Committee of the House of Lords) as the UK’s highest court.
The Supreme Court has its own building away from Parliament (opened 2009).
Justices of the Supreme Court do not sit in the House of Lords (though former Law Lords who became Justices retained their peerages, new Justices do not receive peerages).
Lord Chancellor’s Role: The Lord Chancellor is no longer Speaker of the House of Lords. The Lord Speaker is now directly elected by members of the House of Lords.
Parliament’s Limit: Parliamentary sovereignty means statute takes precedence over judiciary
If courts develop law in a way Parliament dislikes, Parliament can legislate to overturn the common law.
Can the judiciary declare an Act of Parliament unconstitutional or strike it down? Why/why not?
No. Due to the UK’s unwritten constitution and Parliamentary Sovereignty, the judiciary cannot declare an Act of Parliament unconstitutional or strike it down. There is no “higher law” for comparison.
