Courts, Rule of Law, and Separation of Powers

Question 1

give the 3 main periods of growth of the judicial role and court power in the UK

Answer 1

-expansion of judicial review in 1960s
-growth in significance after New Labour reforms
-recent controversies: Brexit and Covid

Question 2

give 3 principles that shape the operation of the courts

Answer 2

-parliamentary sovereignty
-rule of law
-separation of powers

Question 3

give 3 preliminaries of the rule of law

Answer 3

-historically a highly contested concept
-most disagreement revolves around definition and scope
-must differentiate ‘rule of law’ from ‘rule by law’

Question 4

historical development of the rule OF law

Question 6

what does Dicey believe about the rule of law

Answer 6

-as well as PS, RoLaw identified as a major constitutional principle
-gave 3 meanings to the concept

Question 7

what are the 3 meanings dicey gave the concept of RoLaw

Answer 7

-Systemic ‘regular’ law v arbitrary ‘discretional’ power
-Equality before the law
-Rights of individuals best protected by common law

Question 8

do Dicey’s views still apply today

Answer 8

-largely, scholar’s disenchanted with Dicey’s views on this concept esp in 20th Century
-significant shift as historically, RoLaw and Ps complemented one another but today it is often posed as clashing thus bigger focus in 21st cent

Question 9

what does Thompson (1993) say on the RoLaw

Answer 9

-“The rule of law has a comforting ring to it. If we are concerned about
restraining government then the idea of government by laws rather than men seems to be helpful, until we realise that laws are made by men and women.”
-“The rule of law is not a robust check upon government. There is government according to law but the law can indemnify past illegalities and take retrospective effect. These are not everyday occurrences but they show that whatever is the check upon government is not law.

Question 10

what does Carroll (1998) say on RoL

Answer 10

“This is neither a rule nor a law. It is now generally understood as a doctrine of political morality which concentrates on the role of law in securing the correct balance of rights
and powers between individuals and the state in free civilised societies.”

Question 11

what does de Smith (1998) say about RoL

Answer 11

“The concept has an interesting characteristic: everyone who tries to redefine it
begins with the assumption that it is a good thing, like justice or courage. When Communist theoreticians extol the merits of ‘socialist legality’ they could simply substitute the term ‘rule of law’, though their conceptions of what it connoted would differ from those of liberal democratic
ideologists.

Question 12

give the 3 main aspects/implications about RoLaw today

Answer 12

1. Law and Order better than anarchy
2. Gov must act according to the RoLaw
   3.Applied as a broad doctrine affecting the making of new law and the operation of gov

Question 13

explain 1. Law and order better than anarchy

Answer 13

-In a democracy, it must be possible to change the
government w/o threating the existence of the
state

Question 14

explain 2. Government must act according to the rule of law

Answer 14

-Principle of legality
-Public authorities can be subject to effective
sanctions

Question 15

who is the main authority/theorist on RoLaw today

Answer 15

-Bingham and his 8 principal ingredients

Question 16

what are Bingham’s 8 principal ingredients for RoLaw

Answer 16

1. the law must be accessible and so far as possible intelligible,
   clear and predictable
2. questions of legal right and liability should ordinarily be resolved by application of the law
   and not the exercise of discretion
3. the laws should apply equally to all, save to the extent that objective differences justify
   differentiation
4. Public officers at all levels must exercise their powers in good
   faith, fairly, for the purposes for which powers are conferred,
   without exceeding the limits of such powers and not unreasonably
5. the law must afford adequate protection for fundamental human
   rights
6. means must be provided for resolving, without excessive cost or
   delay, civil disputes which the parties themselves cannot resolve
7. adjudicative procedures provided by the state should be fair
8. the state must comply with its obligations in international law as
   in national law

Question 17

simplified, what are Bingham’s 8 principal ingredients for rule of law

Answer 17

1. law= accessible, intelligible, clear, predictable
2. legal right/ liability resolved by law not discretion
3. law applies equally to all, with exceptions
4. public officers should be fair with their power
5. law should protect human rights
6. should provide for those in civil disputes who cant pay/resolve themselves
7. right to fair trial
8. state complies with international law the same it does national law

Question 18

give 2 international aspects of the rule of law

Answer 18

-Since the end of WWII, there has been a large focus on rule
of law (and human rights)
E.g., ECHR ‘prescribed by law’ test

Question 19

give 2 social and economic aspects of the rule of law

Answer 19

-Has been broadened to values that lie far beyond the courts, legal process and the legal profession
-Difficult to make social & economic values legal principles

Question 20

what are the 3 practical applications of RoLaw

Answer 20

-judicial review
-statutory interpretation
-human rights

Question 21

explain judicial review as a practical application of RoLaw

Answer 21

-CCSU [1985] AC 374
-Access to justice (e.g., UNISON)
-policing the prerogative (e.g., Miller II/Cherry

Question 22

CCSU [1985] AC 374

Answer 22

-procedural steps followed (???) rewatch lecture

Question 23

Access to Justice eg UNISON

Answer 23

-gov introduced high fees for access to courts
-judiciary agreed with challenges in favour of equal access to justice

Question 24

explain statutory interpretation as a practical application of RoLaw

Answer 24

-principle of legality (eg ex parte Simms)

Question 25

ex parte Simms

Answer 25

-fundamental rights cannot be overridden by ambiiguous words, if this is challenged judges can fight back on the interpretation

Question 26

what happened inR. (Dolan) v. SoS for Health and Social Care [2020] EWCA Civ 1605

Answer 26

-challenges powers enforced during COVID lockdown
-argued violated number of human rights
-but this challenge ultimately failed

Question 27

what was said in R (Dolan) v SoS for Health and Social Care (2020) EWCA Civ 1605

Answer 27

-“First, the Government had no power under the legislation they used to make the regulations, namely the Public Health (Control of Disease) Act 1984, as amended by the Health and Social Care Act 2008 (“the 1984 Act”). Secondly, the regulations are unlawful applying ordinary public law principles; and thirdly they violated a number of the Convention rights which are guaranteed in domestic law underhe Human Rights Act 1998 (“HRA”).”

Question 28

give 3 cases that champion the idea of the RoL

Answer 28

-Entick
-Miller I
Jackson v Attorney General (2005) UKHL 56

Question 29

explain the case of Entick championing the idea of RoL

Answer 29

-express legal authority needed for government to interfere with citizen’s
person/property, or it will be unlawful

Question 30

explain the case of Miller I championing the idea of the rule of law

Answer 30

• ‘‘the constitutional remit of the judiciary… is to protect the rule of law’ [151]

Question 31

explain Jackson v Attorney General [2005] UKHL 56 as championing the idea of the rule of law

Answer 31

-Lord Hope’s obiter (not leading judgement) : “the rule of law enforced by the courts is the ultimate controlling factor on which our
constitution is based”
-Baroness Hale’s obiter (also not leading judgement) “The Courts will treat with particular suspicion (and might even reject) any attempt to
subvert the rule of law”

Question 32

what is Lord Bingham’s core principle

Answer 32

‘all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly
made, taking effect (generally) in the future
and publicly administered by the courts’

Question 33

what actions threaten the rule of law

Answer 33

-civil disobedience?
-terrorism
-other actions?