Rule of Law

Question 1

John Austin

Answer 1

Defined law as being a command issued from a superior to an inferior and enforced by sanctions

Question 2

John Salmond

Answer 2

Defined law as being the body of principles recognised and applied by the state in the administration of justice

Question 3

Another definition

Answer 3

A formal mechanism of social control, enforced through the courts and the legal system.

Question 4

International law

Answer 4

Concerned with disputes between nations, comes from the EU

Question 5

National law

Answer 5

Applies to country as whole.

Question 6

Public law

Answer 6

Constitutional law, controls method of government. Administrative law, controls how Ministers of State and other bodies. Criminal law, sets out types of behaviour which if beached are punished by state through courts

Question 7

Private law

Answer 7

Deals with civil matters, governs: Contract, Tort, Family, Law of succession, Company law, Employment law

Question 8

Burden of proof

Answer 8

Criminal: being beyond reasonable doubt, Civil: balance of probabilities

Question 9

Rule of Law

Answer 9

Fundamental principle of constitution: the state should govern its citizens in accordance with rules that have been agreed upon

Question 10

Unwritten constitution, but set of rules about who governs and powers

Answer 10

Acts of Parliament - statute law, Judicial decisions - judge’s decisions explain reason behind sentencing, Conventions - not laws but traditions that have been followed over time

Question 11

Dicey

Answer 11

Considered rule of law as an important feature that distinguished English law from other countries in Europe

Question 12

3 elements to rule of law

Answer 12

No sanction without breach - no one should be punished unless they have broken the law, One law should govern everyone - no one above/below the law, Rights of individuals secured by decisions of judges

Question 13

Law and State

Answer 13

State’s power must be controlled by law, sets limits on what state can do.

Question 14

Rule of Law and Natural Justice

Answer 14

Require that everyone be subject to the same law, law should do justice by not punishing those whose actions are innocent or justified.

Question 15

Darling J

Answer 15

The law, like the tavern, is open to all

Question 16

Lord Justice Matthews

Answer 16

In England justice is open to all, like the Ritz

Question 17

FA von Hayek

Answer 17

Agreed with Dicey, essential component of the rule of law is absence of any arbitrary power on part of the state. 1971: stripped of all technicalities, the Rule of Law means that the government in all its actions is bound by the rules fixed and announced in advance. Believed law had become weaker because providing the action was authorised by state, act was lawful

Question 18

Joseph Raz

Answer 18

Recognised rule of law was way of controlling discretion than preventing it completely. Saw it as having negative value, acting to minimise danger o use of discretionary power in arbitrary way

Question 19

Raz’s Principles

Answer 19

there should be clear rules and procedures for making law; the independence of the judiciary must be guaranteed; the principles of natural justice should be observed, requiring open and fair hearings for all parties; the courts should have the power to review the way in which the other principles are implemented to ensure that they are being operated as demanded by the rule of law

Question 20

3 main principles of rule of law

Answer 20

Separation of powers; supremacy of Parliament, Rule of law

Question 21

Separation of powers, prevents abuse of power and conflict of interests. Overlap between executive and legislature.

Answer 21

State powers separated, Montesquieu theory: Executive - government forming cabinet and deciding on law making agenda. Legislature - Parliament. Judicial - judges

Question 22

Act supports Montesquieu theory within separation of powers. Recognised rule of law and importance of independence of judiciary, separating the House of Lords judges as law makers, from those sitting in Supreme Court

Answer 22

Constitutional Reform Act 2005

Question 23

Supremacy of Parliament

Answer 23

Parliament highest power, decisions made by respective parliaments do not bind others. Been affected by EU membership

Question 24

Everyone is subject to the law

Answer 24

If government does not like result, can usually reverse through legislation

Question 25

Home Secretary tried to prevent purchase of TV licenses to beat rise in cost of licences

Answer 25

Congreve v Home Office 1976 CA

Question 26

Despite injunction, Home Office deported M, claiming misunderstanding

Answer 26

M v Home Office 1993 HL

Question 27

Lord Denning

Answer 27

Be you ever so high, the law is above you. Gourmet v Union of Post Office Workers and Others 1977 CA

Question 28

Independent and impartial judiciary

Answer 28

The law should be applied without fear or favour, malice of ill will, or prejudice, bias or fear from others, particularly the powerful

Question 29

Human Rights Act 1998, implemented October 2000

Answer 29

though technically the ECHR is not superior to Parl, effects of s3 and s4 cant be underestimated

Question 30

For UK written constitution

Answer 30

Make things clearer; Accessible for citizens; Greater protection of rights and liberties

Question 31

Against UK written constitution

Answer 31

Difficult to change; Unwritten is part of our heritage; Unwritten allows flexibility

Question 32

Judge’s independence

Answer 32

Crucial aspect of law, impartial and non-political. Main concern was appointment process, controlled by prime minister and Lord Chancellor.

Question 33

Willingness of ministers to publicly criticise courts

Answer 33

Particularly Home Secretaries

Question 34

Condemned release of nine Afghan hijackers

Answer 34

David Blunkett: 2003

Question 35

Criticised release of terrorist suspects from Belmarsh

Answer 35

Charles Clarke: 2005

Question 36

Attacked decision not to deport the murderer of London Headmaster Phillip Lawrence, when he is released

Answer 36

John Reid: 2007