ELS-The Rule of Law

Question 1

Who is A.V. Dicey?

Answer 1

19th-century legal thinker

Question 2

What did Dicey believe was unique about England’s rule of law?

Answer 2

It was distinguished from other European countries.

Question 3

Dicey’s 3 key principles about the rule of law.

Answer 3

1. State does not have arbitrary (autocratic) power.
2. Equality before the law.
3. Law must be supreme.

Question 4

How does the state not have arbitrary power, as according to Dicey’s principles on the rule of law?

Answer 4

Law sets limits on what the state can do, so the government dos not have complete discretionary (optional) powers.

Question 5

Evidence the state does not have arbitrary power.

Answer 5

Courts stopped May exiting the EU without a vote in Parliament

Question 6

How is there equality before the law, as according to Dicey’s principles on the rule of law?

Answer 6

No one-royals or members of the government-are above the law.

Question 7

How is the law supreme, as according to Dicey’s principles on the rule of law?

Answer 7

In Dicey’s time, most laws came through common law rather than Parliament, though now more laws come from statute.

Question 8

Who agreed with Dicey that the rule of law limited arbitrary power?

Answer 8

F.A. von Hayek

Question 9

What did F.A. von Hayek claim was happening to the rule of law and why?

Answer 9

Argued rule of law was weakening as Parliament passed ever greater amounts of legislation and played an increasing role in everyday life.

Question 10

2 problems with Dicey’s viewpoint on the rule of law.

Answer 10

1. Contradicts his own ideas about Parliamentary sovereignty-does Parliament have complete discretionary powers or are these limited by the law?
2. In practice, equality before the law can depend on factors such as wealth, power, connections etc.

Question 11

What did Joseph Raz argue the rule of law was a means of doing?

Answer 11

Controlling parliamentary discretion rather than preventing it completely

Question 12

Joseph Raz’s 4 key elements of the rule of law.

Answer 12

1. Should be clear rules and procedures for making laws.
2. Independence of the judiciary must be guaranteed.
3. Must be natural justice-that is, fair trials.
4. Courts have the right to review the way in which other principles are implemented to ensure it is within the rule of law.

Question 13

What does s.1 of the Constitutional Reform Act 2005 recognise?

Answer 13

“the existing constitutional principle of the rule of law”

Question 14

What does s.1(3) of the Constitutional Reform Act 2005 state?

Answer 14

The government must maintain independence of the judiciary.

Question 15

Rule of law in practice in law-making.

Answer 15

1. New statutes need to go through both the Commons and the Lords, with Lords acting as a check on government power.
2. Although government can introduce statutory instruments, these must be authorised by an existing Act of Parliament.

Question 16

Rule of law in practice in the legal process.

Answer 16

1. No imprisonment without trial
2. Right to trial by jury for serious offences.
3. Impartial judges making decisions in civil disputes.
4. Accessible justice-legal aid.

Question 17

What is substantive law?

Answer 17

Law that governs how people are supposed to function.

Question 18

Rule of law in practice in substantive law.

Answer 18

1. Laws in place to protect citizens-e.g., murder, threat
2. Maximum sentences, keeping state power within bounds
3. Individuals are free to make contract but the law does try to address power imbalances between parties e.g., CRA 2015
4. Human Rights Act 1998