Rule of law

Question 1

What is the broad meaning of the rule of law?

Answer 1

All persons and authorities are bound by and entitled to the benefit of laws

Question 2

What is the content of rule of law?

Answer 2

• Law should be accessible, clear and predictable
• Legal issues should be resolved through legal processes (not through exercise of administrative discretion by GOV officials)
• Law must be applied equally
• Law should afford adequate protection for human rights
• Should be access to justice without inordinate delay/expense
• Public officials should exercise powers they have been granted in good faith and within limits of those powers
• Legal and adjudicative processes should be fair
• State should comply with obligations under international law

Question 3

How is the doctrine of separation of powers intrinsic to the rule of law?

Answer 3

Means that those in GOV are prevented from exercising power arbitrarily

Through judicial review!

Question 4

What is the requirement for GOV interference with persons/property?

Answer 4

For it to be sanctioned by a legal authority

Identifiable power to action in question

Question 5

What is the legality principle?

Answer 5

PARL cannot be seen to have intended to limit important rights/freedoms unless this is made clear

Question 6

Can primary legislation be (judicially) reviewed?

Answer 6

No - but can assess whether GOV/public body has acted ultra vires (outside provisions in Act)

Question 7

Can delegated legislation be (judicially) reviewed?

Answer 7

Yes - by assessing whether it has been made in accordance with powers granted by parent Act

And whether GOV has acted in accordance with delegated legislation

Question 8

Can courts assess whether GOV has breached a common law constitutional right or lawfully exercised a prerogative power?

Answer 8

Yes

Question 9

What are the principles of legal certainty?

Answer 9

• Law should be clearly set out and expressed
• Law should apply to future actions

Question 10

What is the exception to prospective legislation?

Answer 10

Law should apply to future actions unless overturning decision of courts or putting accepted procedure on statutory footing

E.g. War Crimes Act 1991 enabled UK courts to punish war crimes committed by persons not subject to British jurisdiction at time committed (WW2)

Question 11

What are the exceptions to the law applying equally to everyone?

Answer 11

• The Monarch (is arguable above the law)
• Judges in higher courts immune from civil litigation for acts done in their jurisdiction
• Parliamentary privilege
• Diplomatic immunity
• Children not subject to same law as adults

Question 12

Is statutory law and common law equal?

Answer 12

No, statutory law is a higher form of law which can override common law

Question 13

Can PARL enatc laws which undermine fundamental rights?

Answer 13

Yes, but language of legislation. must be completely clear - in absence of express words courts presume it was intended to be subject to basic rights of the individual

Question 14

How is the rule of law used by the judiciary to restrict the effect of legislation created by PARL and protect individual rights/liberties?

E.g. PARL SOV v ROL

Answer 14

Judicial interpretation of statutory provisions and by using common law (and ECHR) principles of justice and fairness

E.g. Fewings - local council banned deer hunting for ethical reasons - using ethical reasons as grounds to ban was not prescribed under the Act so council had acted unlawfully (ban could only be justified in terms of managing deer herd/environmental control)

Question 15

What is meant by discretionary power?

Answer 15

The discretion/choice conferred on GOV by legislation about appropriate decision/action in given situation

Cannot provide indefinite list of exact right course- discretion neeeded

Question 16

What is the Padfield principle?

Re discretionary power

Answer 16

For exercise of discretion to be lawful, it must not frustrate policy/purpose of statute which contains disretionary power

Failure to exercise discretion at all may also be unlawful

E.g. Padfield - minister had discretion to appoint committee to investigate complaints of Milk Board - held he did not have complete freedom of choice re whether or not to appoint committee = acted unlawfully

Question 17

What should judicial discretion be constrained by?

Answer 17

• Sentencing guidelines
• Previous sentences in similar circumstances
• D’s right of appeal

Question 18

What are the challenges to the rule of law?

Answer 18

• Too much badly drafted/confusing legislation
• Hard to access reliable versions (and have to pay a lawyer to)

Question 19

Why are uncertain judicial decisions a challenge to the rule of law?

Answer 19

The law on given points will remain unclear

Especially if not a convincing majority

Question 20

Why is administrative discretion a challenge to the rule of law?

Answer 20

Hard/expensive to challenge decisions

Especially if not made on criteria

Question 21

Why is equality before the law a challenge to the rule of law?

Answer 21

Differentiation must be relevant to the distinction

E.g. deportation is relevant to the distinction of national/non-national, indefinite detention or not was not relevant to the same distinction

Question 22

Why is inequality of application a challenge to the rule of law?

Answer 22

E.g. Terrorism Act 2000 is a broad and intrusive power allowing police/customs without grounds for suspecting involvement in terrorism to detain an individual up to 9 hours

Means law applied discriminatorily

Question 23

Why is access to justice a challenge to the rule of law?

Answer 23

• Cuts to legal aid budget = increasingly difficult for criminal Ds/civil Cs to obtain legal representation
• Increase in self-representation (risk of unjust outcome higher)

Question 24

Why are fees/costs a challenge to the rule of law?

Answer 24

People should have unimpeded access to courts but court fees and risk of having to pay D’s costs can be off-putting