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The Executive and The Rule of Law - Coggle Diagram
The Executive and The Rule of Law
Government can only act if expressly authorised
Either by statute or common law
If the government is to act in excess of the powers given, the Administrative court (Q/KBD) will intervene.
Won't be on its own accord, but if a claim is made against the government.
Local government
Central government:
Government departments headed by the Secretaries of State
County, borough or district councils
Legislation that is passed
regulates the structure, power and duties of local government policies.
This structure is complex and varies across the UK
Local authorities are responsible for the
implementation of central government policies
at a local level.
NOTE:
Key constitutional principles limiting the power of central government is also applicable to the local government. The exercise of local government power is
reviewable by the Administrative Court
in the same way.
The Rule of Law
Broad concept but is fundamental to an understanding of constitutional and Public law principles.
Binghams eight fundamental principles
The law should be accessible, clear and predictable
The law should afford adequate protection for human rights
There should be access to justice in the courts without inordinate delay or expense
The Law should apply equally to all
Public officials, including ministers, should exercise the powers they have been granted in good faith and within the limits of those powers.
Legal issues should ordinarily be resolved through legal processes and not through the exercise of administrative discretion by government officials.
Legal and adjudicative processes should be fair
The state should comply with its obligations under international law.
In the UK, the rule of law has become a more significant and constitutionally important concept in recent years.
Illustrated by the direct reference as a constitutional principle in
Section 1 of the Constitutional Reform Act 2005
Lord Bingham
The core of the existing principle is that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of law publicly made, taking effect (generally) in the future and publicly administered in the courts
Judicial review
The mechanism by which the law is protected- and arbitrary use of government power prevented.
The
Administrative Courts will consider whether an action was unlawful
, in accordance with the powers granted and the rights protected by legislation and the common law,
Legislation
In the UK, courts cannot review the constitutionality of primary legislation (AOP). However, they can assess whether the government or any other public body has complied with the provisions of an Act or any associated regulations.
Common law
Courts can also asses whether a public body has breached a common law constitutional right.
The requirement of legality
Follows from the recognisable characteristics of rule of law listed by Bingham, The Government must act within the confines of the law.
Requirement is broken down into three key points
Any government interference with persons or property
must be sanctioned by a legal authority
, giving an identifiable power to perform the action in question.
Many public governmental bodies are incorporated by statute and so statutory provisions will
define and limit their legal capacities.
The i
ndependence of the judiciary
is essential as the courts determine whether the
government power is lawfull exercised.
Legal Certainty
War Damages Act 1965:
Overrode the judgment of the House of Lords, meaning the government was not obliged to pay damages for property destroyed/damage in the war as the court had previously order.
Legislation should apply to future actions, not retrospectively to past actions
Uncertainty is created if one does not know whether the law may change so that something you do in the present could become illegal at a later date.
Not that law changes, but is the
impact of the new law on the person
who acted under the old law that is significant
Retrospectively, applicable legislation is sometimes passed when parliament wishes to legislate to overturn a decision of the courts (constitutionally entitled to do so)
Jobseekers (Back to work scheme) Act 2013
Overode the decision of the Supreme Court which had required the Dept of Work and Pensions to pay a rebate to claimants whose job seekers Allowance had been withdrawn, when they refused to take part in an unpaid back-to-work training scheme.
Unison 'access to justice'
The issues of access to justice in relation to legal aid and court, which was examined by the Supreme Court in the case of R (Unison) V Lord Chancellor
The
constitutional right of access to the courts is inherent in the rule of law
Discretionary power
Legislation passed by Parliament cannot prescribe a single lawful course of action in every situation, and instead it will often confer a discretion (a choice) on the government (decision maker) about the appropriate decision or action in a given situation. This does not mean the power to decide is ultimate (judicial review)
Equality before the law
Rule of law requires that the law should apply equally to everyone
Gouriet V Union of Post Office Workers
The Monarch is arguably above the law
Parliamentary privilege- Mps cannot be sued for defamation for things they say in THOC
Diplomatic immunity
The above demonstrates 'Be you ever so high, the law is above you ' -
Lord Denning
Liversidge V Anderson