rule of law

Question 1

what was the historical genesis of the rule of law?

Answer 1

The Bill of Rights -> Even the monarchy is under the law

Question 2

three principles according to Dicey

Answer 2

• The absolute supremacy or pre-dominance of regular law as opposed to the influence of arbitrary power
• The ‘equal subjection of all classes to ordinary law of the land administered by the ordinary courts’.
• the constitution is the result of the ordinary law of the land’

Question 3

rule of law according to Bingham

Answer 3

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 of the land should apply equally to all, save to the extent that objective differences justify differentiation.
4. the law must afford adequate protection of fundamental human rights.

Question 4

Malone v Metropolitan Police Commissioner [1979]

Answer 4

Malone was convicted of crimes of dishonesty. Evidence against him was gained by tapping his phone and was used to secure his conviction. it was argued in supreme court that the evidence against him had been used improperly as the tapping of his telephone was unlawful as there was no legal warrant for it. But there was no legislation authorising the issuing of a warrant. The High Court said that it wasn’t unlawful as people and the gov are allowed to do whatever they like as long as it isn’t unlawful. It was argued that there’s no violation of his property rights or his privacy. The European Court is Strasbourg argued that it was a violation of Article 8 as they had no formal legal authority.

Question 5

Strengthening Rule of Law as a Constitutional Principle

Answer 5

ECHR
Malone v Metropolitan Police Commissioner [1979] Ch 344 European Convention on Human Rights, 1950, Article 8 Malone v United Kingdom [1984] ECHR 10

Question 6

Threats to the Rule of Law in Practice

Answer 6

• Austerity – underfunding
• Brexit, Media and Political Attacks on Judges and Judicial Independence (‘enemies of the people’)
• Post-Brexit, Free Trade Agreements and Investor-State Dispute Settlement
  Procedures
• COVID – 19, Government powers and the administration of justice: K D Ewing, ‘Covid-19: Government by Decree’ (2020) 31 King’s Law Journal 1
• Populist government, tendencies towards authoritarianism, disrespect for civil liberties: eg CHIS Act 2021, above.