Chapter 4: Legitimacy, Separation of Powers and the Rule of Law

Flashcards covering Chapter 4: Legitimacy, Separation of Powers, and the Rule of Law, including core concepts, statutory provisions, key case law, and exam application points.

Why is correct legal procedure alone insufficient to confer legitimacy, and what historical example illustrates this?

Laws require substantive justification and power must be constrained and subject to court review; apartheid-era laws were validly enacted according to procedure but lacked legitimacy.

Which historical instruments mark the early development of the rule of law and personal liberty in the UK?

Magna Carta 1215 and the writ of habeas corpus, specifically codified in the Habeas Corpus Acts 1640 and 1679.

What are A.V. Dicey's three limbs of the rule of law and their modern equivalents?

1. No punishment except for a breach of law in ordinary courts (Modern: legal certainty, personal liberty, due process); 2. Everyone is subject to the ordinary law (Modern: equality before the law, including officials, as in Entick); 3. Constitutional rights stem from court decisions (Modern: courts as protectors of liberty).

What are Lord Bingham's eight sub-rules of the rule of law?

1. Law accessible, clear and predictable; 2. Rights resolved by law, not discretion; 3. Law applies equally; 4. Human rights protected; 5. Dispute resolution without excessive cost or delay; 6. Public powers used reasonably, in good faith and within limits; 7. Fair adjudicative procedures; 8. Compliance with international law.

How is the rule of law recognised in the Constitutional Reform Act 2005 and in the Jackson case?

Section 1 of the Constitutional Reform Act 2005 formally recognises it, and in Jackson, Lord Hope described the rule of law as the "ultimate controlling factor".

What was the ruling and remedy in the Belmarsh case?

Indefinite detention without trial breached Articles 5 and 14 of the ECHR, leading the court to issue a declaration of incompatibility under section 4.

What did the Anderson case decide regarding the separation of judicial and executive powers?

Under Article 6, sentencing is an exclusively judicial function for the courts, not for executive ministers.

Why were employment tribunal fees struck down as unlawful in UNISON?

The fees were held to be unlawful because they effectively prevented access to justice, breaching the rule of law.

What constitutional principle was established in M v Home Office?

Injunctions and contempt of court proceedings are available against ministers of the Crown.

What is the "principle of legality" as articulated in the Simms case?

Fundamental rights cannot be overridden by general or ambiguous statutory words.

What limitation on the application of the rule of law was demonstrated in Corner House?

The Serious Fraud Office (SFO) halting an investigation was upheld by the court on public interest grounds.

How does the UK's separation of powers differ from the United States model?

The USA features strict separation where executives cannot sit in Congress and the Supreme Court can strike down statutes (Marbury v Madison). The UK lacks a formal separation due to having no constitutional "break", maintaining a partial separation with informal checks and the Monarch nominally part of all three branches.

What limits are placed on executive membership in Parliament by the House of Commons (Disqualification) Act 1975?

Section 1 bars civil servants, members of the armed forces, and police officers from the Commons; Section 2 caps the number of ministers sitting in the Commons at 95.

What is the statutory cap on paid government ministers under the Ministerial and other Salaries Act 1975?

A maximum of 109 paid ministers.

What did Lord Hailsham mean by "elective dictatorship", and what mechanisms enable it?

The Government effectively controls Parliament through its Commons majority, control of the legislative timetable, party whips, delegated legislation, Henry VIII powers, and a comparatively weak House of Lords.

What examples illustrate the operation of individual ministerial responsibility for departmental failure or personal misconduct?

Resignations of Lord Carrington in 1982, Priti Patel in 2017, Amber Rudd in 2018, and Angela Rayner in 2025.

What instances illustrate the convention of collective ministerial responsibility and its suspension?

Ministers resigning to speak out against policy include Robin Cook in 2003 and Boris Johnson in 2018; Prime Minister David Cameron suspended collective responsibility in 2016.

What is the legal rule and modern convention regarding parliamentary approval for military action?

There is no legal requirement to obtain parliamentary approval to deploy troops; however, a convention has emerged requiring a House of Commons debate first, except in an emergency.

What power did the Constitutional Reform and Governance Act 2010 confer on the House of Commons regarding treaties?

It gave the House of Commons statutory power to block the ratification of treaties, although debates under this mechanism have not occurred.

What safeguards protect judicial independence in the UK?

Section 3 of the CRA 2005 (statutory duty on ministers); appointment via the Judicial Appointments Commission (JAC); tenure during "good behaviour" (removal only by the Monarch after a joint address by both Houses); salaries drawn from the Consolidated Fund; civil immunity; conventions against ministerial criticism; the sub judice rule; and contempt of court laws.

What institutional changes were introduced by the Constitutional Reform Act 2005 to separate the executive and judiciary?

Transferred the Lord Chancellor's role as head of the judiciary to the Lord Chief Justice, created the independent JAC, established the Supreme Court, and removed the Lord Chancellor from the role of Speaker of the House of Lords.

How does judicial review preserve the constitutional separation of powers?

Courts examine only the legality of public decision-making, not the substantive merits of executive decisions.

What is the legal position regarding the judicial review of the existence and extent of the royal prerogative?

Courts determine the existence and extent of prerogative powers, and no new prerogative powers can be created (Case of Proclamations, BBC v Johns). In Miller (No 2)/Cherry, the prorogation of Parliament was ruled unlawful because it frustrated parliamentary sovereignty and accountability.

How did the CCSU case change the law on judicial control over the exercise of the prerogative?

Overruling the previous stance in Blackburn that prerogative powers were immune from review, CCSU established that the exercise of prerogative powers is reviewable unless the subject matter is non-justiciable.

Which prerogative powers are recognized as non-justiciable, and why?

Treaties, deployment of armed forces, defence of the realm, and matters of "high politics"; courts decline review because these issues are political and the executive has institutional expertise.

Which case demonstrates Parliament's ultimate legislative supremacy over common law judicial decisions?

Burmah Oil, where Parliament passed the War Damage Act 1965 to retrospectively reverse the court's award of compensation.

What recent events and controversies have raised concerns about the politicisation of the judiciary?

Judges chairing public inquiries (Hutton, Leveson, Grenfell), politically sensitive litigation, the "enemies of the people" media headline during the Miller litigation, and Baroness Carr's 2025 criticism of the Prime Minister and Opposition leader.

How did the Rwanda Act 2024 and the Post Office (Horizon System) Offences Act 2024 challenge the boundary between Parliament and the courts?

The Rwanda Act 2024 legislated that Rwanda was safe, binding courts and disapplying parts of the Human Rights Act (repealed 2025); the Post Office Act 2024 quashed criminal convictions by primary statute, though the Government stated it set no precedent.

In an exam problem involving indefinite statutory detention without trial, what is the appropriate judicial outcome?

The court will issue a declaration of incompatibility under section 4 of the Human Rights Act 1998 rather than striking the legislation down, meaning the primary legislation remains legally in force.

In an exam problem involving a legal challenge to the executive entering or negotiating a treaty under the royal prerogative, what is the expected outcome?

The legal challenge will fail because treaty-making under the royal prerogative is classified as non-justiciable.