Rule of law

Question 1

What was said in Entick v Carrington regarding the rule of law?

Answer 1

“If it is law, it will be found in our books. If it is not to be found there, it is not law.”

Question 2

What does John Locke say about the rule of law?

Answer 2

“Wherever law ends, tyranny begins.”

Question 3

Which case displays that all actions taken by the government must be justified by legal authority?

Answer 3

Entick v Carrington

Question 4

Which case shows that the law binds the government as well as the governed?

Answer 4

M v Home Office [1992]

Question 5

Which case shows that interference by the government must be ‘prescribed by’ or ‘in accordance with’ the law?

Answer 5

Malone v UK

Question 6

2 conceptions

Answer 6

1. procedural (Raz)
supremacy of the law
equality
accessibility (know what the law is/ identify the law
independent judiciary
role of the courts is limited
2. substantive (Fuller)
morality
basic human rights and values
role of courts in controlling government actions

Question 7

Law must be

Answer 7

clear & consistent
publicised
courts must be accessible & staffed by an independent judiciary

Question 8

Dicey - 3 meanings of ROL

Answer 8

1. the supremacy of regular law over arbitrary power
2. equality before the law
3. no higher law other than the rights of individuals as determined through the courts

Question 9

Lord Bingham, 8 sub rules

Answer 9

1. law should be accessible, clear and predictable
2. legal issues should be resolved through legal proceedings and not through exercise of administration discretion
3. the law should apply equally to all
4. the law should afford adequate protection for human rights
5. access to the courts
6. executive should exercise powers in good faith within lawful limits
7. legal processes should be fair
8. state should comply with its international obligations

Question 10

Key principles of ROL

Answer 10

Legal justification for the action
Entick v Carrington
Malone v UK
2. Laws must be sufficiently clear
The Sunday Times v UK
Burmah Oil v Lord Advocate
Shaw v DPP (court resurrected the offence of conspiracy to corrupt public morals)
3. control over discretionary power
Liversidge v Anderson
Rossminster
A and Others v SSHD (court scrutinised control order regime)
4. equality before the law: everyone is subject to the same law; everyone is subject to the ordinary courts of the land
inequality:
Queen
certain officials
superior judges (immune from civil litigation for the acts done within their jurisdiction)
parliamentary privilege
diplomatic immunity

Question 11

ROL and PS

Answer 11

1. ROL operates as a check on executive power by requiring that the executive only act on the basis of lawful authority, which is ultimately granted by P, through P., by the people
2. ROL also represents a check on the scope of P authority, by applying limits on the interests of minorities and for the protection of human rights (e.g. interpretation)

Question 12

ROL and SOP

Answer 12

1. SOP identifies 3 organs of state and suggects that by each performing separately the function assigned to it, individuals are protected from arbitrary governmental actions and abuse of power
Re M (P makes the law, the executive carry the law into effect and the judiciary enforce the law)
2. the judiciary through performing its function of enforcing the law, keeps the executive within the boundaries of its lawful authority  and so upholds the law as made and sanctioned by the P
3. judiciary performs ROL/SOP functions through the process of JR