2. Rule of Law

Question 1

Dicey’s theory

Answer 1

1. The supremacy of regular law over arbitrary power
2. Equality before the law
3. No higher law than the rights of individuals as determined through the courts

Question 2

Entick v Carrington

Answer 2

Search deemed unlawful since there was no basis in statute or precedent for the warrant that purported to authorise it

Question 3

Kelly v Faulkner

Answer 3

NI CA refused to accept that British soldiers dealing with emergency should be exempt from normal legal requirements for execution of valid arrest

Question 4

Malone v Met Police Commissioner

Answer 4

Court held it had no jurisdiction on the legality of police phone tapping. No law against this and executive could do anything that was not prohibited by law

Question 5

Malone v UK

Answer 5

ECtHR rules UK’s practice of allowing interception of communications is in breach of Art 8

Gvt responds by passing Interception of Communications Act 1985

Question 6

M v Home Office

Answer 6

Mandatory interim injunction against HS upheld - Crown’s immunity from JR doesn’t extend to officers of the Crown

Question 7

Sunday Times v UK

Answer 7

(1) Law must be adequately accessible
(2) Norm cannot be regarded as ‘law’ unless formulated with sufficient degree of precision to enable citizen to regulate his conduct

Question 8

War Damages Act 1965

Answer 8

Retrospective legislation passed in response to Burmah Oil v Lord Advocate

Question 9

War Crimes Act 1991

Answer 9

Retrospective legislation

Question 10

Shaw v DPP

Answer 10

S convicted of ‘conspiracy to corrupt public morals’ (even though no such statutory offence and conviction unprecedented)

Courts have ‘residual power to enforce the supreme and fundamental purpose of the law’

Question 11

R v R

Answer 11

HL overturned previous common law rule allowing marital rape, convicting somebody for act that was not then an offence

Question 12

R v C

Answer 12

Marital rape conviction for act that took place in 1970s

Question 13

SW and CR v UK

Answer 13

ECtHR held that conviction for marital rape committed a time when this was not recognised of offence was not unlawful

Question 14

Ex parte Fewings

Answer 14

Council’s ban on stag hunting on its land held to be an abuse of its discretionary power

Question 15

Liversidge v Anderson

Answer 15

HS allowed discretionary power to detain person without trial so long as he honestly believed he had hostile intentions- no need to prove this belief was reasonable

Lord Atkin: accuses majority of being ‘more executive minded than the executive’

Question 16

Ex parte Hosenball

Answer 16

CA unwilling to order HS to give reasons for deporting American journalist

Question 17

Ex parte Cheblak

Answer 17

CA accepts HS’s determination that Cheblak’s presence in UK was not ‘conducive to public good’ and refused to order his release from detention pending deportation

Question 18

A and others v SS for Home Dpt

Answer 18

Anti-Terrorism, Crime and Security Act 2001, s 23 allows detention of non-nationals suspected of being terrorists

HL: detention legal under Act, but not discrimination between nationals and non-nationals

Lord Hoffman (dissenting): goes further - Act goes against very fabric of UK constitution in allowing detention at all

Question 19

Rahmatullah v SS for FCA

Answer 19

SC upheld issue of habeas corpus on UK government, requiring it to seek to procure the release of the claimant, who is being held by the US at Bagram airbase

Question 20

R (Mohamed) v SS for FCA

Answer 20

FS ordered to allow disclosure of materials supporting applicant’s case he had been tortured at Guantanamo Bay as crucial for functioning of open system of justice and hence ROL

Justice and Security Act 2013 passed on the light of these cases

Question 21

Ex parte Simms

Answer 21

Blanket ban by HS on journalists using information gained during interviews with prisoners held to be ultra vires even though it had basis in statutory authority

Question 22

Jackson

Answer 22

Obiter comments: parliamentary sovereignty a judicial creation and could be revoked if courts held Parliament acting in way that was contrary to ROL

Question 23

IRC v Rossminster

Answer 23

Denning: warrant invalid for want of particularity + search not in accordance with anything authorised by warrant
Criticises Taxes Management Act 1970 for being ‘drawn so widely that in some hands it might become an instrument of oppression’

Wilberforce overturns decision on basis of more formal view of rule of law

Question 24

Corner House Research

Answer 24

Divisional Court held that decision by Serious Fraud Office to halt investigations into bribery allegations regarding arms contracts with Saudi gvt after thread by Saudi authorities is contrary to RoL

HL: reverses judgement - public interest in pursuing investigation outweighed by wider public interest in protecting national security