PUBLIC LAW L4 - Rule of Law - PARLIAMENTARY SOVEREIGNTY & CASES Flashcards
Describe the relationship between parliamentary sovereignty and rule of law. (2)
Parliamentary sovereignty is consistent with rule of law but there is a potential source of friction between these two constitutional principles.
What is parliamentary supremacy? (2)
Parliamentary supremacy is a fundamental condition of the rule of law in UK constitution. It is possible, if there is the political will to do so, for Parliament to pass laws that could be seen to go against fundamental features of the rule of law like a discriminatory statute.
Explain the importance of R V SOS HOME DEPARTMENT EX PARTE SIMMS 2000. (1)
Lord Hoffmann observed that Parliament could if it wished enact laws which undermine fundamental rights but the language must be completely clear.
Explain the importance of A & OTHERS SECRETARY OF STATE FOR HOME DEPT 2004. (3)
It illustrates how while the government may in certain circumstances derogate from under European convention on human rights, it can only do so in accordance with the law. It concerned the governments derogation from the right to personal liberty of the EHCR, it was argued this derogation was necessary so government could initiate a policy of indefinite detention of foreign nationals suspected of being terrorists.
Why is discretion important in legislation? (3)
Legislation cannot provide for every eventuality and govern every single aspect of every executive decision, so some matters have to be left to the discretion of the decision-maker. Too much discretion is considered to be hazardous to the rule of law as may lead to an arbitrary government.
Why is controlling discretionary power of the decision maker important? (2)
So the power to decide is not unlimited and it is controlled by judicial review.
What increased considerably in the second half of the 20th century? (1)
Judiciary’s willingness to intervene in government’s exercise of its statutory discretionary power.
What will courts strive to do under Lord Hoffman’s legality principle? (1)
To safeguard fundamental freedoms and rights.
Explain the importance of LIVERSIDGE V ANDERSON 1942. (6)
It illustrates the prevailing judicial attitude of the time. Anderson was imprisoned by HS for reasonable belief that he had hostile intentions, House of Lords accepted HS interpretation. Lord Atkin accused the majority of being more executive than the executive and had given HS unlimited discretion and the HS needed to give some evidence for his justification.
What must the exercise of discretion not do in order to be lawful? (3)
It must not frustrate the policy or purpose of state which contains the discretionary power. Failure to exercise discretion at all if it is granted by statute is also potentially unlawful this is known as the padified principle.
