RULE OF LAW

Question 1

Two main ways R of L has legal effect

Answer 1

(I) influences how courts interpret legislation

(II) defines the validity of govt action/legislation

Question 2

Three conceptions of R of L?

Answer 2

(I) legality (bare principle)
(II) formal approach
(III) substantive approach

Question 3

Define key principles of legality interpretation

Answer 3

Only a question of whether or not something is legal

Law must be made by authorised institution in the established way > an identifiable body of rules conforming to a certain method of creation

Is morally neutral, any law, regardless of content can be enacted as long as it is made by authorised body in the prescribed manner.
I.e. This is how apartheid was allowed to exist

Question 4

What did Allan say in regards to formal approach?

Answer 4

‘Like a sharp knife, the rule of law is morally neutral, an efficient instrument for good purposes or wicked.’

Question 5

Who is the leading writer on a formal approach?

Answer 5

Joseph Raz

Question 6

When Raz said ‘law should conform to standards designed to enable it to effectively guide action’, what did he mean?

Answer 6

That law should not have a retroactive effect, nor should it change too often.
If law has these characteristics people know where they stand and can make informed decisions on their actions.

Question 7

What stance does DICEY’S formal view take on discretionary powers?

Answer 7

‘Government based on the exercise by persons in authority of wide, arbitrary or discretionary powers of constraint would be contrary to R of L’

Question 8

What stance does RAZ’S conception of the formal approach take on discretionary powers?

Answer 8

Existence of such powers does conform to rule of law, provided there is an adequate legal framework to govern their application. This makes them certain enough for them to be predictable and understandable.

Question 9

What are the 2 arguments for a solely formal approach?

Answer 9

1. Although a formal approach allows for discriminatory/’evil’ legal systems, legal certainty itself is based on respect for human dignity and autonomy
2. Whilst holding these underlying principles ^ , taking it any further = nothing more than a contestable legal theory

Question 10

Who said: ‘if the rule of law is rule of the good law, then to explain its nature is to propound a complete social philosophy’ ?

Answer 10

Joseph Raz

Question 11

What is the main vehicle by which rule of law is articulated?

Answer 11

Judicial interpretation of legislation and judicial evaluation of legality of govt action

Question 12

What is the general recognition of the formal approach?

Answer 12

Formal and procedural principles have a ‘settled, overarching quality’ - LAWS

Question 13

WITHAM 1998 case facts

Answer 13

• Govt minister granted certain powers to enact secondary legislation
• C argued he had exceeded these powers by substantially increasing legal fees to access courts
• Held: court agreed with claimant, by exceeding his powers the minister had acted without legal authority = breach of legality

HIGHLIGHTS ENTICK 1765

Question 14

Which case demonstrates limits of bare principle of legality?

Answer 14

MALONE 1979

Question 15

MALONE 1979 case facts

Answer 15

• Govt had listened to C’s phone calls
• At the time there was no statutory protection of right to privacy
• Held: govt acted legally
• Demonstrates principle of legality doesn’t require positive legal authority if the other party’s legal rights aren’t effected
• Hard to define where the rule of law is

Question 16

What are the four clear acceptances of the formal conception in English law?

Answer 16

1) Legal certainty
2) Laws shouldn’t have retroactive affect
3) Discretionary powers are accepted with appropriate certainty imposed
4) Requirement of independent courts

Question 17

Which case demonstrates an endorsement of legal certainty?

Answer 17

ANUFRIJEVA 2003
‘A constitutional state must accord to individuals the right to know of a decision before their rights are affected’ - LORD STEYN

Question 18

ANUFRIJEVA 2003 case facts

Answer 18

• Asylum seekers benefits were stopped, her entitlement to which would only cease after her claim was determined
• Govt said they were able to stop payments as they had rejected her claim
• BUT she hadn’t been told, so the govt had acted against principle of legal certainty = unlawful

Question 19

Which case clearly recognised laws shouldn’t be retroactive?

Answer 19

PIERSON 1998

Question 20

PIERSON 1998 case facts

Answer 20

• HS decided (on incorrect knowledge of circumstance) that C should spend at least 20 years in prison for double murder
• Normal sentence under the correct circumstance would be 15 years
• After discovering the actual facts, HS stood by original decision of 20 years
• HELD: unlawful ‘contrary to fundamental principle that a sentence lawfully passed should not retrospectively increase’

Question 21

What does the case of LUMBA 2012 demonstrate?

Answer 21

• Discretionary powers must be legally made certain
• If govt pledges to exercise a given power in accordance with policy (i.e. Not to deport asylum seekers in certain circumstances) courts generally hold it unlawful not to do so

Question 22

Which case endorses formal approach to discretionary powers?

Answer 22

LUMBA 2012

Question 23

Which three principles demonstrate a more substantive approach in the courts?

Answer 23

1. Right to a fair hearing
2. Right to freedom of expression
3. Right to confidential legal advice

Question 24

Which case demonstrates courts accepting right to a fair hearing?

Answer 24

RIDGE V BALDWIN 1964

Question 25

Which case demonstrates courts acceptance of right to freedom of expression?

Answer 25

SIMMS 2000

Question 26

Which case shows courts acceptance of right to legal confidential legal advice?

Answer 26

DALY 2001

Question 27

What did LORD BINGHAM say in DALY 2001?

Answer 27

He reached his decision by ‘orthodox application of common law principles’

Question 28

Why was Lord Bingham’s quote in DALY 2001 important?

Answer 28

It shows a common law acceptance of the substantive approach to R of L, not just compliance to the HRA

Question 29

What did LORD COOKE say in DALY 2001?

Answer 29

‘Some rights are inherent and fundamental to a democratic civilised society. Conventions, constitutions, bills of rights and the like respond by recognising rather than creating them.’

Question 30

Which cases demonstrate the principle of legal equality being accepted outside of statute?

Answer 30

(I) ENTICK 1765 - showed that ministers are treated no more favourably in court than anyone else
(II) R v M 1994 - Home Secretary was held to ordinary standard for breaching a for breaching a court order (fine/imprisonment)

Question 31

What does DICEY say on parliamentary sovereignty and rule of law?

Answer 31

• May appear to oppose, or act as counter balances to each other
• Parliamentary sovereignty actually favours rule of law
• Predominance of rigid legal authority in UK institutions excessive same therefore increases the authority of PS

Question 32

AXA INSURANCE v LORD ADVOCATE 2011

Lord Hope’s judgement

Answer 32

• Not entirely unthinkable a govt which has that power, may seek to use it to abolish judicial review or diminish the role of the courts in protecting rights of the individual
• Rule of law requires that judges must retain the power to insist that legislation of that extreme kind is not law that the courts will recognise

Question 33

What did HOWARD ZINN say on practical reality of rule of law?

Answer 33

‘No less authoritarian than rule of men in premodern society; it enforces the maldistribution of wealth and power as of old, but in such a complicated and indirect way, as to leave the observer bewildered.’