Rule of Law and seperation of Powers

Question 1

What is the rule of law?

Answer 1

• Idea that law must be enacted using the correct procedures
• Must apply equally to everyone
• Content of that law must respect certain values and rights e.g. Liberty, tolerance and equal respect
• Rule of law can be both about appearance and making of a law and it’s content

Question 2

FA Hayek

Answer 2

• “Under Rule of Law, government is prevented from stultifying individual efforts. individual is free to pursue his personal ends and desires”

Question 3

Dicey’s 3 principles of rules of law

Answer 3

1. No man is punishable except for a district breach of law
2. Every man is subject to the ordinary law of the realm
3. Rights to his personal liberty should result from judicial decisions

Question 4

Joseph Raz and rule of law

Answer 4

• Laws should be prospective
• Laws should be relatively stable
• Laws should be guided by open, general and clear rule
• Independent Judiciary
• Access to the courts
• Discretion should not be allowed to undermine the purposes of relevant legal rules
• Agued that rule of law is not the same thing as ‘democracy’.
• Said that rule of law needs to be civilised

Question 5

How Lord Bingham defines Rule of Law

Answer 5

• “All persons should be bound by and entitled to the benefit of laws”

Question 6

Lord Bingham 8 principles

Answer 6

1. Law must be accessible
2. Questions of legal right and liability should be resolved by exercise of law
3. Laws should apply equally to all
4. Ministers and public officials must exercise powers in good faith, fairly and reasonably without exceeding limits of powers
5. Law must protect fundamental human rights
6. State must provide way of resolving disputes
7. Adjudicative procedures provided by state should b fair
8. Compliance by state with obligations in international as well as national laws

Question 7

Distinction between formal and substantive theories of rule of law

Answer 7

1. Formal - Focus on the process and procedures of law making and equality between persons
   - Tends to focus more on appearance of law
   - Do not care about content of law, just how its made and applied
2. Substantive - Focus on protection of rights and values e.g. freedom of expression, right to life
   - because substantive theorists argue equality is not enough for civilised country.

Question 8

What aspects of rule of law are ‘formal’ or ‘substantive’?

Answer 8

• Raz and Dicey are regarded as ‘formal’ theorists

- Bingham’s list contains both formal and substantive aspects

Question 9

Significance of S.1 of Constitutional Reform Act 2005?

Answer 9

Section 1 is entitled ‘the rule of law’ and reads :
This Act does not affect
(a) existing constitutional principle
(b) Lord Chancellors existing role

Question 10

Lord Chancellor

Answer 10

• Used to be head of judiciary
• Now only a minister
• Lord Chief Justice is now head of judiciary
• Lord speaker is now speaker of HOL
• S.1 necessary because it was role of Lord Chancellor to defend the independence of judges and rule of law

Question 11

LIVERSIDGE v ANDERSON

Answer 11

• About application of defence regulation, gave Home secretary power to imprison anyone
• Appellant was man named Liversidge suspected of being Nazi
• issue was whether “reasonable cause” meant court had to find reasonable evidence.

Question 12

Separation Of Powers

Answer 12

• 3 branches of government with own function and powers
• Legislature : makes the law (UK)
• Executive : enforces law (UK)
• Judiciary : interprets law

Question 13

R v HOME SECRETARY

Answer 13

• “Parliament has legally unchallengeable right to make whatever laws it thinks right”
• “Executive carries on the administration of country”
• “Courts interpret Law”

Question 14

What is purpose of the separation of powers?

Answer 14

• To prevent a concentration of power in one branch or person