Week 5 Public : Rule of Law and Separation of Powers.

Are principles the same as laws in constitutional theory?

No. Principles are not laws, but legal rules may give them effect. They help identify goals of constitutional systems, guide reform, and assess existing structures.

What are the three key provisions of the Constitutional Reform Act 2005?

1. Modified the office of Lord Chancellor

2. Established the UK Supreme Court

3. Abolished the appellate jurisdiction of the House of Lords

What does Section 1 of the Constitutional Reform Act 2005 say about the rule of law?

t states the Act does not adversely affect the existing constitutional principle of the rule of law—but does not define it.

How did Lord Bingham define the rule of law?

"All persons and authorities within the state... should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts."

List Lord Bingham's 8 sub-rules of the rule of law.

1. Laws must be clear and accessible

2. Legal rights decided by law, not discretion

3. Equal application of the law

4. Public officers must act lawfully and reasonably

5. Law must protect fundamental rights

6. Civil disputes must be resolvable without prohibitive costs

7. State adjudicative procedures must be fair

8. State must comply with international and national law

What is Joseph Raz’s (formal) conception of the rule of law?

1. Laws follow proper procedures

2. Laws should be prospective

3. Rules must be clear and general

4. Independent judiciary

5. Access to courts

What is Ronald Dworkin's (substantive) view of the rule of law?

The rule of law must capture and enforce moral rights, not just follow procedural rules.

What are criticisms of the rule of law as a concept?

• Some argue it lacks substantive value (Griffith, Political Constitution, 1979)

• May conflict even with weak versions of parliamentary sovereignty

Who protects the rule of law in the UK?

Primarily the Judiciary, but also Parliament and the Government.

How do courts protect the rule of law?

• Apply common law rights

• Use Human Rights Act 1998

• Strike down actions incompatible with the rule of law

• Interpret laws compatibly with rule of law

• Review executive actions

• Courts can't invalidate Acts of Parliament due to parliamentary sovereignty

What are the three branches of government in the separation of powers?

1. Legislature (Parliament) – makes laws

2. Executive (Government) – administers

3. Judiciary (Courts) – interprets laws

What did Montesquieu and Madison say about separation of powers?

• Montesquieu: Essential for liberty

• Madison (Federalist No. 47): Combining powers = tyranny

What are 'checks and balances'?

A system where institutions check each other to prevent abuse. Complete separation is unrealistic and could itself cause tyranny (Elliot & Thomas 2020).

What is 'institutional balance' under Art. 13 TEU?

EU institutions should act within legal limits. But critics question why democratic bodies like the EU Parliament are so weak.

What is the UK’s model of separation of powers?

Parliamentary democracy, with overlap between executive and legislature (e.g., Ministers are MPs or Lords). Courts are increasingly influential, especially after the Constitutional Reform Act 2005.

What was the legal issue in Miller 1 [2017] UKSC 5?

Whether the executive could trigger Article 50 to leave the EU using prerogative powers—or if Parliament must decide.

What was the outcome in Miller 1?

The UKSC held it was Parliament’s decision, not the executive’s, to trigger Article 50.

What was the issue in Miller 2/Cherry [2019]?

Whether PM Boris Johnson's advice to prorogue Parliament for five weeks was justiciable and lawful.

What did the Supreme Court say in Miller 2 about judicial review?

"Ministerial responsibility is no substitute for judicial review." (Para 33)

What legal test was established in Miller 2?

Prorogation is unlawful if it frustrates or prevents Parliament from fulfilling constitutional functions without reasonable justification. (Para 50)

Key quotes from Miller 2 on constitutional principles?

• “Ministerial responsibility no substitute for judicial review.” (Para 33)

• “Court performing its proper function under our constitution.” (Para 34)

• “Parliament... has a right to have a voice in how [constitutional change] comes about.” (Para 57)

• “No reason was given for closing down Parliament for five weeks.” (Para 58)

• “An unlimited power of prorogation would... be incompatible with Parliamentary sovereignty.” (Para 42)