Rule of Law

Question 1

What is the rule of law? (main principles)

Answer 1

• No one is above the law and everyone is subject to the law
• establishes a relationship between government and people
• the law is always applied

Question 2

Main practical effects of the rule of law in the UK?

Answer 2

1. Courts will strike down government action which is not in line with the rule of law
2. Courts try to give legislation a meaning compatible with the rule of law
3. Courts generally hold legislation to be invalid if it cannot be interpreted compatibly with rule of law

Question 3

Procedural/Formal Law?

Answer 3

Consists of a set of rules that govern the proceedings of the court. The courts must adhere to these standards which are set out. These rules ensure consistency and fair practice in the process.

Question 4

Substantive Law?

Answer 4

Type of law deals with the legal process between the people and the state. Defines the rights and duties of people. Concerns morality.

Question 5

Dicey’s seminal formal rule of law is threefold:

Answer 5

Equality before the law; absence of arbitrary powers; common law decisions in our constitution

Question 6

AV Dicey ensures a …

Answer 6

‘government of law’ not a ‘government of men’

Question 7

Case for Dicey’s “Equality before the law”

Answer 7

M v Home Office

Question 8

Case for Dicey’s “Absence of arbitrary powers”

Answer 8

Entick v Carrington

Question 9

Case for Dicey’s “common law protecting the rights of the people/ common law rights”

Answer 9

Unison v Lord Chancellor

Question 10

Formalists?

Answer 10

Dicey
Raz
Ugner

Question 11

Substantivists?

Answer 11

Dworkin
Allan
Jowell

Question 12

What does the Dr Bonham case stand for?

Answer 12

Principle that legislation passed by parliament is subordinate to common law decisions made by judges, and any other statute that is contrary to “common law right or reason” must be void

Question 13

Coke’s Obiter Dicta (from Dr Bonham case)?

Answer 13

• Rule of law is the rule of reason, not man
• Courts are trained in legal reasoning
• Monarch and Parliament are political actors
• Courts are better arbiters of law than political actors

Question 14

Parliamentary Sovereignty and the Rule of Law = Jackson v Attorney General

Answer 14

A House of Lords case noted for containing obiter dicta comments made by the judiciary to suggest that there may be limits to Parliamentary Sovereignty

Question 15

OD? Bingham and PS =

Answer 15

“PS is the ‘bedrock’ of the British Constitution”

Question 16

OD? Hope and PS =

Answer 16

“PS is not longer, if it was ever, absolute”

Question 17

OD? Hale and Rule of Law =

Answer 17

“The courts will treat with suspicion (and may even reject) any attempt to subvert the rule of law”

Question 18

OD? Steyn and Constitution/Human Rights =

Answer 18

“We do not in the UK have an unconditional constitution. It is a legal order in which the UK assumes obligation to protect Human Rights”

Question 19

Lord Bingham’s 8 principles of the rule of law:

Answer 19

1. Law must be clear, accessible and intelligible to all
2. Should be governed by law and not discretion
3. Equality before the law
4. Ministers must act within limit and not exceed their powers
5. Law must give adequate protection of human rights
6. Law must provide access to justice/Dispute resolution
7. State must provide a fair trial
8. State should comply with international law

Question 20

M v Home Office?

Answer 20

Home secretary did not comply .. said that the Crown chose to obey the law, rather than being compelled to
This is not true - the Crown ministers are just as subject to the law as any other person
(No one is above the law)

Question 21

Entick v Carrington?

Answer 21

Court refused to accept that a government minister in absence of any common law or statutory authority had any power to grant warrants permitting entry and search of a private property
(No arbitrary powers)

Question 22

Unison v Lord Chancellor

Answer 22

Lord Chancellor raised tribunal fees to reflect commercial reality but the supreme court quashed this as incompatible with common law
Cited Lord Coke’s opinion that justice cannot at common law be bought or sold, it is a public good
(Common law rights)

Question 23

Raz

Answer 23

Formalist

• Rule of law is a pre-condition of individual liberty
• Key formal qualities include that the law must be certain and prospective but not that it must be ethically right

Question 24

Raz’s 6 principles:

Answer 24

1. Prospective but not retroactive laws
2. Publicly and clearly stated
3. Stable and not changed often
4. Independent Judiciary
5. Everyone has access to courts and fair trail
6. Law enforcement should not undermine legal rules

Question 25

Raz cases ... Fair trail = Access to courts = Independant Judiciary =

Answer 25

Ridge v Baldwin Witham Dr Bonham

Question 26

Unger

Answer 26

``` Formalist The rule of law provides justification for the way in which society is ordered 1) Autonomy 2) Generality 3) Neutrality 4) Predictability ``` Changes in society and its order impact the RoL, leaving it more imprecise, biased and purposive

Question 27

Dworkin

Answer 27

Substantivist Rights based on ethics are integral to the rule of law Rule Book: Government should never exercise power against individuals, except in accordance with rules which are available to all Rights: Cares about the content of laws and the importance of having moral rights to protect people - UK rights are set out in common law and HRA - Courts should be deciding legal questions in accordance with the best means of justice

Question 28

Allan

Answer 28

Substantivist (inspired by Dworkin) Respect for individual and moral autonomy... laws based on morals "good outcome" = fairer legal system BUT recognised that we can't just follow a substantive view - does also adhere to formalistic principles... but in court reasoning judges should look at fairness and justice

Question 29

Jowell

Answer 29

Substantivist | "institutional morality" = constraint on government power

Question 30

What does Dicey believe to be the two main principles of our unwritten constitution?

Answer 30

1. Parliamentary Sovereignty 2. Rule of Law Recognises PS as the primary principle and one which could overrule the rule of law; but that the rule of law must be respected by parliament

Question 31

What is the alternative to the rule of law?

Answer 31

Arbitrary government

Question 32

"No one is above the law" why have there been concerns expressed about how this applies in the UK? EVALUATION

Answer 32

As parliament is sovereign, it can make, unmake and amend any laws as it wishes .. in this sense, it is above the law

Question 33

"Equality before the law" why have there been concerns about how this applies in the UK? EVALUATION

Answer 33

Legal disputes can be costly, and only the more affluent in society can be represented by top lawyers (or any lawyer at all given recent legal aid cuts) So, access to legal help is not always easy for people from middle to low income groups

Question 34

"Law is always applied" why have there been concerns as to why in criminal law there is not always a certainty of punishment for these crimes in the UK? EVALUATION

Answer 34

Not all crimes are always reported and therefore not all are legally addressed .. and as police resources are limited not all crimes are detected.

Question 35

"Common law rights" why are our rights not always protected or defended in the UK? EVALUTAION

Answer 35

there is no entrenched bill of rights to protect fundamental human rights and the HRA can be set aside by parliament if they wish (PS)