⇒ Lord Lester (PAC Report, 2003) = "...The difficulty about our unwritten, flexible, permeable, part monarchical and part parliamentary constitution is to make sure that those principles [i.e. the rule of law and parliamentary sovereignty] apply in practice."
⇒ The Rule of Law (Dicey 1885) dictates that:
⇒ Bingham (in 2006) said the following about the rule of law: "...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 in the courts..."
⇒ "It is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law" (Universal Declaration of Human Rights 1948)
⇒ In M v Home Office (1993), the court questioned whether or not the crown is immune from the legal process. As we know, Dicey said nobody is above the law so is it really possible for the crown to be immune from the law?
⇒ "Under the complex conditions of modern life no government can in times of disorder, or of war, keep the peace at home, or perform its duties towards foreign powers without occasionally using arbitrary authority." (Dicey: Introduction to the Study of the Law of the Constitution)
⇒ But it is important the rule of law is complied with where it can be: see the case of R (on the application of S) v Secretary of State for the Home Department 
⇒ Article 15 of the European Convention on Human Rights (ECHR) allows for States to derogate from certain rights within the ECHR in times of war or other public emergency threatening the life of the nation
⇒ Definition: "...All would be lost if the same man or the same body of principal men either of nobles, or of the people, exercised these three powers: that of making the laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals." (Montesquieu ‘The Spirit of Laws’ (1748))
⇒ Separation of personell → no individual should simultaneously occupy a place in more than one branch of Government
⇒ Avoidance of interference → no branch of Government should interfere in the operation of another
⇒ Separation of function → no branch of Government should perform functions which are the responsibility of another
⇒ Issue of elective dictatorship:
⇒ This is the right to a fair trial
⇒ Judges must be independent and impartial
⇒ It is bought into UK law through the Human Rights Act 1998
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⇒ This is partly a response to the case of McGonnell v UK (2000)
⇒ It created a clear separation of powers, greater compliance with Article 6 of the ECHR, and a more independent and transparent basis for judicial appointments
⇒ It also created the Supreme Court (2009)
⇒ “I clearly believe that the role of the Lord Chancellor in upholding the independence of the judiciary - an important unwritten article of our constitution - is vital. [T]he office acts as a strong buffer between the judiciary and the executive.” (Lord Irvine, Lord Chancellor, March 2000)
⇒ Advantage of the Lord Chancellor being a member of the executive:
⇒ Tony Blair had a cabinet reshuffle in 2003 and shuffled out the Lord Chancellor from Cabinet – the flexibility of the constitution allowed him to do that
⇒ Historically, the Lord Chancellor was the speaker of the House of Lords, a senior member of cabinet, head of the judiciary, and appointed the judiciary
⇒ However, since the Constitutional Reform Act 2005, the speaker of the House of Lords is now elected, he is prohibited from sitting as a judge, he can be any Minister not necessarily a lawyer, and the appointed of judges is now done on a more independent and transparent basis (Judicial Appointments Commission)
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