Legitimacy, Separation of Powers, and the Rule of Law

Flashcards covering the core constitutional principles of legitimacy, the rule of law, and the transition of the separation of powers within the UK legal system, based on the SQE1 syllabus.

Legitimacy

The principle that political power must be derived from a valid source of authority and shared beliefs within society to command the respect of citizens and ensure rulers do not exercise arbitrary power.

Writ of habeas corpus

An order by the court requiring that a prisoner be brought before it so the court can decide whether their detention is lawful.

A.V. Dicey's first element of the rule of law

The principle that no man is punishable or can be lawfully made to suffer except for a distinct breach of the law established in the ordinary legal manner before the ordinary courts.

A.V. Dicey's second element of the rule of law

The idea that no man is above the law and that everyone, regardless of rank or condition, is subject to the ordinary law of the realm and the jurisdiction of ordinary tribunals.

A.V. Dicey's third element of the rule of law

The view that general constitutional principles, such as the right to personal liberty, result from judicial decisions in particular cases brought before the courts.

Due process of law

The contemporary constitutional requirement that citizens have a right to fair procedures for determining civil or criminal liability.

Lord Bingham of Cornhill's core rule of law definition

The principle that 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.

Section 1 of the Constitutional Reform Act 2005

A statutory provision that explicitly acknowledges the importance of 'the constitutional principle of the rule of law' without providing a specific definition.

Belmarsh case (A and others v Secretary of State for the Home Department [2005])

A significant case where the House of Lords held that indefinite imprisonment without charge or trial, permitted by the Anti-terrorism, Crime and Security Act 2001, breached the right to liberty (Article 5) and was anathema to the rule of law.

Equality before the law (M v Home Office [1993])

The principle established by the House of Lords that the executive must obey the law as a matter of necessity, not grace, allowing injunctions and contempt proceedings against ministers in their official capacity.

Principle of legality

A judicial assumption that fundamental rights cannot be overridden by general or ambiguous words; Parliament must use clear and specific provision to displace them and accept the political cost.

Separation of powers

A doctrine identifying three branches of state (legislature, executive, and judiciary) and holding that there should be no overlap between their functions or personnel to prevent the arbitrary exercise of power.

The Legislature

The branch of state that makes the law; in the UK, it consists of the Monarch, the House of Lords, and the House of Commons.

The Executive

The branch of state that implements or administers the law; it includes the Monarch, the Prime Minister, government ministers, the civil service, the police, and the armed forces.

The Judiciary

The branch of state that resolves disputes about the law; it consists of the Monarch, all legally qualified judges, and magistrates.

Elective dictatorship

A phrase used by Lord Hailsham to describe a system where the Government, having an in-built majority in the House of Commons, can act as it pleases and use Parliament to 'rubber stamp' its legislative plans.

Henry VIII powers

Provisions in primary legislation that enable the Government to amend or repeal primary legislation using delegated legislation without further reference to Parliament.

Salisbury Convention

A constitutional convention stating that the House of Lords will not reject a bill that gives effect to a significant manifesto commitment of the democratically elected Government.

Individual ministerial responsibility

A convention stating that ministers are responsible to Parliament for the running and proper administration of their departments as well as for their personal conduct.

Collective cabinet responsibility

A convention holding the cabinet collectively responsible to Parliament for the actions of the Government as a whole, requiring ministers to support government policy in public or resign.

Royal prerogative

The residual absolute powers of the Monarch that have not been removed by Parliament and are now usually exercised by the Government on the Monarch's behalf.

Non-justiciable

Areas of government activity, such as making international treaties or national security, where the courts consider themselves technically or politically ill-equipped to review the exercise of prerogative powers.

Judicial Appointments Commission (JAC)

An independent body created by the Constitutional Reform Act 2005 to ensure that the appointment of judges in England and Wales is based solely on merit and free from political influence.

Judicial review

The process through which the judiciary ensures that the executive does not exceed or abuse the powers granted to it by statute or the royal prerogative, focusing on the legality rather than the merits of the decision.

Sub-judice rule

A rule under which Parliament refrains from discussing the details of matters currently being heard or waiting to be heard by the courts.

Parliamentary privilege

The immunity enjoyed by members of the House of Commons and House of Lords from criminal or civil proceedings arising from statements made within Parliament, as guaranteed by Article 9 of the Bill of Rights 1689.

Declaratory theory

An early theory suggesting that judges do not make the law but merely declare what the law enacted by Parliament actually is.

Declaration of incompatibility

An order issued by the courts under s 4 of the Human Rights Act 1998 stating that an Act of Parliament is incompatible with the ECHR, which does not invalidate the statute but places political pressure on the Government to amend it.