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Rule of Law Flashcards

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1
Q

The rule of law is concerned with

A

What Governments can do and how governments can do it.

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2
Q

Dicey’s Theory states that the Rule of Law requires:

A
  1. Supremacy of regular law over arbitrary power
    - all executive acts must have legal authority/ justification
  2. There is no Higher Law
    - no constitutional law with a higher status than regular law.
  3. Equality before the law
    - the law applies to everyone equally
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3
Q

The supremacy of regular law over arbitrary power

A

No man can lawfully be made to suffer in body or goods

- protecting individual rights.

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4
Q

No Higher Law

A

No ‘constitutional law’
The government has to operate within a framework of laws superior to actions of government officials
e.g. judicial review of Royal Prerogative Powers: GCHQ

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5
Q

Equality before the law

A

Courts, rather than the government, must decide whether or not the law has been broken
Axa v Lord Advocate
- Lord Hope: equality of treatment was ‘at the very core’ of the ROL

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6
Q

Entick v Carrington

A 
Government invoked two defences: 
- state necessity 
- custom and tradition 
Camden LJ
- 'if it is law, it will be found in our books'
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7
Q

Re M

A

In deporting someone contrary to an injunction, the Home Secretary had stepped outside of the ROL
He had no legal authority for acting as he did.

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8
Q

Joseph Raz

A

Drew a distinction between formal/structured ROL and Substantive ROL

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9
Q

Formal/ Structured Rule of Law

A

About having a legal procedure

i. e. courts, lawyers, independent judges etc
- this places importance on legal certainly, clarity and stability, so citizens can know what the law is and regulate their behaviour accordingly

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10
Q

Substantive Rule of Law

A

About outcomes - is the decision fair and have the individuals rights been protected?
Lon Fuller
- there can be no legal system without an element of morality - without morality it is merely a governmental system not a legal one.

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11
Q

The Independence of the Judiciary

A

Act of Settlement 1700

Harris v Minister of the Interior (South Africa)

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12
Q

Act of Settlement 1700

A

A judge can only be removed by both houses of parliament after the judge has committed a crime or moral misbehaviour
- they cannot be sacked by the crown for producing judgements that the government does not like
Parliamentary Sovereignty sill entails that the Act of Settlement could be changed

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13
Q

Harris v Minister of the Interior (South Africa)

A

Court found that turning Parliament itself into a new court was illegal and that a ‘court’ had to be constitutionally independent.
Government passed legislation to add more pro- government judges and senate members to give a different result.
- legal steps but morally questionable.

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14
Q

Hayek - The Road To Serfdom

- Market liberalism; supported by Dicey

A
  • Government is bound by rules
  • all citizens must have access to an independent judiciary to challenge the government
  • The court’s duty is to protect the citizen agains the government
  • a society cannot have both the rule of law and a welfare state - it must choose one.
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15
Q

Jones - The Rule of Law in the Welfare State

- Social Democratic Approach

A

Government should play an extensive role in economic affairs
Individuals must accept significant limits on their autonomy in the public interest
Justification:
- protects individuals from exploitation (child labour)
- rationale for society as a whole (controls on pollution)
If ‘the people’ decided that they are willing to dilute the Diceyan ideal to achieve certain social objectives, there would seem to be no obvious barrier to them doing so.

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16
Q

Red Light Theory

A

Theorists such as Heyak
Echo Dicey’s suspicion of the executive and maintain that the rule of law’s primary concern should be to stop government interfering with individual autonomy

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17
Q

Green Light Theory

A

Theorists such as Jones
Parliament and the courts should loosen the legal constraints on government discretion, enabling government to curb individual autonomy in order to promote society’s collective well-being.

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18
Q

Amber Light Theory

A

Theorists such as Harlow and Rawlings
Lying between the two extremes
Does not mean that legal controls lie at the precise mid-point of the theoretical spectrum
Individual cases are located at various positions on the spectrum

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19
Q

The term ‘administrative law’

A

The various common law controls that the courts place on the government process.
The main component is judicial review

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20
Q

The function of the Rule of law

A

To ensure that executive bodies remain within the limits of the powers that the legislative has granted

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21
Q

Wednesbury Corporation

A

A clear restatement of

  • the constitutional basis for judicial review of government action
  • the principles courts deploy to establish if a government body’s action is lawful
  • Identifies three grounds on which a court may find that executive action is ‘ultra vires’ (beyond it’s limits)
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22
Q

Grounds on which a court may find that executive action is ‘ultra vires’

A

Wednesbury Corp

  • illegality
  • unreasonable or irrational results
  • natural justice
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23
Q

‘Ultimate political fact’ of parliamentary sovreignty

A
  • The government may only perform tasks that Parliament (or the common law) permit
  • The court’s constitutional role is to police government actions.
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24
Q

Principles of Statutory interpretation

A
  • Literal Rule
  • Golden Rule
  • Mischief Rule
  • Purposive (Teleological) interpretation
25
Q

The Literal Rule

A

The court’s duty is to attach the orthodox meaning to the statute’s phraseology, even if that leads to ostensibly bizarre results (R v Judge of the City of London Court)

But

Danesch v Kensington and Chelsea LBC - expanded the scope of violence to include psychological and emotional abuse

26
Q

Always speaking doctrine

A

The word is given it’s current meaning

  • the law is then not as predictable as Dicey intended
  • Courts can therefore give new meaning to legislation, not parliament?
27
Q

The Golden Rule

A

Gives the legislature a degree of rationality when it comes to interpretation if the outcome should lead to an absurdity.
(R v Bourne)

28
Q

Mischief Rule

A

Requires the court to ask itself which ‘mischief’ or defect the statute was intended to remove.
(Heydon’s Case)

29
Q

Purposive (Teleological) interpretation

A

Tries to imagine what the framers of the legislation would have done if facing the problem before the court
(St Mellons v Newport)

30
Q

Liversidge v Anderson

A

The Home Secretary can detain an individual if: ‘he has reasonable cause to believe’ that the person is of hostile origin (18B)
Majority found that the HS did not need to offer the court any evidence to show that his belief was ‘reasonable’.
Lord Wright: The HS must be ‘reasonably’ satisfied before he acts but it is his decision, not anyone else’s.
Lord Atkin: Parliament must have intended that there be some plausible evidence on which that view was based.

31
Q

Considerations of Liversidge v Anderson

A

The majority judgement effectively permitted the government to disregard the principle of parliamentary sovereignty and Dicey’s rule of law.
Stable J
- Judges were no longer ‘lions under the throne but mice squeaking under a chair in the Home Office’

32
Q

Rossminster

A

If the judge was satisfied that there were reasonable grounds to assume that evidence of a tax fraud might be found on particular premises, they could issue a warrant to ‘sieve whatsoever found there which they have reasonable cause toe believe may be required as evidence’.

33
Q

Rossminster Judgement

A

Denning: warrant must particularise the specific offence

Lord Wilberforce: courts should not ‘restrict or impede the working legislation’ (orthodox principle)

34
Q

Principle from Liversidege and Rossminster

A

Parliament may do anything it wishes, the constitutional responsibility to tell us what parliament actually has done rests with the court.

35
Q

Ex P Fewings

A

A local authority did not have discretion to consider morality as a factor when banning stag hunting

36
Q

Stare Decisis

- the principle of legal certainty

A
  • citizens be able to predict the limits that the law places on individuals and the government.
  • Principle is precarious as Parliament may at any time change any law in any way whatsoever
  • Confirmed in London Tramways
37
Q

The London Tramways Judgement

A

Lord Halsbury: The judgement of the court bound not only all inferior courts, but also the house of lords.
Parliament could always enact a statute ordering the courts to depart from the London Tramways rule.
The House of Lord retained the power to amend or reject the common law rule.
Laws can no more bind successors than parliament cam bind it’s successors
Lord Halsbury might expect his successors to respect his rule but he could not legally bind them to do so

38
Q

The 1966 Practice Statement

A

Did not overrule London Tramways

- departed from previous decisions to avoid injustice

39
Q

Parliamentary Sovereignty v Rule of Law

A

Dicey: courts accept that their allegiance lies to the will of parliament not to the people or a supra-legislative constitution.
Liversidge: example of the courts giving allegiance to the executive rather than to parliament
Liversidge can be portrayed as a manifestly ‘unconstitutional decision’

40
Q

Ouster Clauses

A

In the 50’s Parliament made increasing use fo statutes seemingly to oust the court’s common drift towards ‘green light’ theories of administrative law.

41
Q

Ex P simms

A

The court acknowledged that Parliament could take away individual rights, they could not do so impliedly.

42
Q

R (Evans) v AG

A

The court held that a statute must be ‘crystal clear’ in order to grant a member of the executive the power to override a decision of the judiciary.

43
Q

R v Medical Tribunal, ex p Gilmore

A

The Act allowed applicants to appeal to a specialised medical tribunal
The Act provided that the tribunals decision ‘shall be final’

44
Q

R v Medical Tribunal, ex p Gilmore: Judgement

A

Denning: The word ‘final’ is not enough. It only means ‘without appeal’, not without recourse
Diceyan principle of the RoL: an individual should be able to challenge government decisions before ordinary courts.
- parliament could suspend this if done so explicitly.

45
Q

Anisminic v Foreign Compensation Commission

A

Distribution of funds to British Nationals whose overseas property had been sized by foreign governments.
- the commissions decision shall not be called in to question in a court of law.
The House of Lords Assumed jurisdiction to review the commission.

46
Q

Anisminic: Judgement

A

The Commissions decision was not a determination but a ‘purported determination’
- the court was not challenging parliamentary sovereignty by declaring the commissions action unlawful.

47
Q

Gilmore and Anisminic Cases

A

Examples of judges resisting orthodox understandings to safeguard a political principle (that gov’t action must always be subject to judicial review)

48
Q

Anisminic: Prof. Griffiths

A

The courts were intruding ‘unconstitutionally’ on the sovereignty of parliament

49
Q

Anisminic: Prof. Wade

A

The threat to the constitution came not from the judges’ apparent challenge to parliamentary sovereignty, but from Parliament’s predisposition to deploy ouster clauses to limit or remove the court’s powers of judicial review.

50
Q

Retrospective Law Making

A

Contravening Wednesbury principles that enable the citizens to predict the outer limits of lawful government action.
It would be legally unpredictable if parliament could enact legislation that had retrospective effect
Burma Oil
DPP v Shaw
R v R (Marital Rape)

51
Q

The War Damages Act: Burma Oil

A

Destruction of Oil refineries to stop them getting into Japanese hands.
The government offered Burma Oil compensation, but they took the government to court asking for more compensation arguing that the common law required that owners by fully reimbursed by the government for any loss suffered.
Introduction of the War Damages Act to stop major claims of public expenditure

52
Q

Burma Oil Judgement

A

The War Damages bill intended to overrule the common law for the future as well as past - it had retrospective as well as prospective effect.
Diceyan Theory
- entirely consistent with the legal doctrine of Parliamentary Sovereignty
- Utterly inconsistent with RoL

53
Q

DPP v Shaw

A

Publication of the ‘ladies directory’ with contacts for prostitutes
Charged with the common law offence of ‘conspiracy to corrupt public morals’
Shaw’s defence was that there was no previous authority upholding this charge
- also that it would be impossible to predict what behaviour might fall within it.

54
Q

DPP v Shaw Judgement

A

HoL upheld the conviction

Seemingly contravening Dicey’s theory of certainty of law

55
Q

R v R (Marital Rape)

A

HoL accepted that the common law could legitimately be regarded as a dynamic and flexible source of legal rules
- innovative judicial law-making is generally retrospective in nature.

56
Q

Retrospective Overruling

A

Courts never actually make law, rather they draw our attention to a state of legal affairs which has existed unnoticed for some time.
Lord Browne-Wilkinson
- when an earlier decision is overruled the law is not changed; it’s true nature is disclosed, having existed in that form all along.
Lord Reid
- ‘A Fairy tale which no-one any longer believes. In truth, Judges make and change the law’

57
Q

HRA and ECA

A

Have given the courts greater scope to challenge acts of Parliament
- s. 3 interpretation
- s. 4 incompatible legislation
But Parliament can always repeal the HRA

58
Q

R (Jackson) v Att Gen

- challenging the doctrine of Parliamentary Sovreignty

A

Lord Hope
‘Parliamentary Sovereignty is no longer absolute.’
The Rule of Law enforced by the courts is the ultimate controlling factor on which our constitution is based.

59
Q

Axa v Lord Advocate

A

Lord Hope:
Even if legislature were to attempt to remove the courts’ powers of judicial review: ‘the rule of law requires that the judges must retain the power to insist that legislation of that kind is not law which the courts will recognise’

Public Law (6 decks)

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