Rule of Law

Question 1

Lord Bingham’s principles

Answer 1

1. Law should be accessible, clear and predictable
2. Legal issues should ordinarily be resolved though legal processes and not through the exercise of administrative discretion by government officials
3. The law should apply equally to all
4. The law should afford adequate protection for human rights
5. There should be access to justice in the courts without inordinate delay or expense
6. Public officials, including ministers, should exercise the powers they have been granted in good faith and within the limits of those powers
7. Legal and adjudicative processes should be fair
8. The state should comply with its obligations under international law

Question 2

Requirement for the government to act within the confines of the rule of law

Answer 2

• Any government interference with persons or property must be sanctioned by a legal authority (whether in statute or the common law), giving an identifiable power to perform the action in question - Entick v Carrington
• Presumption when interpreting statutes is that Parliament cannot be seen to have intended to restrict important rights and freedoms unless this is made clear - legality principle
• The independence of the judiciary is essential because courts determine whether government power is lawfully exercised. i.e. has been exercised within the powers given to it and is not used in an arbitrary way - Judical review

Question 3

What is the legality principle?

Answer 3

Presumption when interpreting statutes is that Parliament cannot be seen to have intended to restrict important rights and freedoms unless this is made clear

Question 4

What can courts review in judicial review?

Answer 4

Done by the Administrative Court:

Primary Legislation: Cannot review - but they can assess whether the government or any other public body has complied with the provisions in an Act. If not the body will be acting ultra vires (outside its legal authority)

Delegated Legislation: Courts can review the legality of delegated legislation by assessing whether it had been made in accordance with the powers granted by the parent Act (intra vires). Can also assess whether the government has acted in accordance with the delegated legislation

Common law and prerogative power: the courts can assess whether the government has breached a common law constitutional right or has lawfully exercised a prerogative power

Question 5

Legal certainty

Answer 5

Legislation should apply to future actions not retrospectively to past actions.

Sometimes parliament will do this to legislate to overturn a decision of the courts - what is important is the impact of the new law on the person who acted under the old law that is significant.

Question 6

Equality before the law

Answer 6

Law applies equally to everyone.

Exceptions:

• The monarch
• Judges in higher courts are immune from civil litigation for acts done within their official jurisdiction
• Parliamentary privilege
• Diplomatic immunity
• Children are subject to different laws

Question 7

Fewings

Answer 7

Hunting ban based on moral reasons - held council acted unlawfully.

Case illustrates the point that public authorities must act within the powers given to them by legislation. Including the need to use the power for its intended purpose.

Question 8

A & Others

Answer 8

Government derogated from the right to personal liberty by initiating a policy of indefinite detention of foreign nationals suspected of being terrorists.

Home office had to show:
- there was a public emergency threatening the life of the nation
- measures taken were strictly required (proportionate)

Court held they could not given weight to the assessment of whether there was a public emergency.
BUT held that the measures only targeted non-UK nationals and was not proportionate or rational and was discriminatory.
Declared incompatibility but could not force the prisoners to be released.

Question 9

Judicial attitudes to discretion

Answer 9

Judges used to be unwilling to intervene in the government’s exercise of its statutory discretionary power - but are increasingly willing now.

For the exercise of discretion to be lawful, it must not frustrate the policy or purpose of the statute which contains the discretionary power. Failure to exercise discretion at all if it granted by stature is also potentially unlawful. - Padfield Principle