Rule of Law - Consolidation MCQs Flashcards
One of the most acute forms of tension in public law is caused by the widespread presence of extensive discretionary power in the hands of executive decision makers.
Which of the following statements best summarises the approach of the modern judiciary to this issue?
The courts have come to accept that discretionary powers are an unavoidable feature of modern government, as Parliament cannot possibly legislate for every given situation and therefore needs to provide the executive with powers that it can decide how to use. Consequently, the courts will allow the executive free rein to use these powers in any manner that it sees fit.
The courts will always interpret discretionary statutory powers by applying a test of proportionality so that they can better balance the interests of the state and the individual.
The courts have become increasingly reluctant in recent decades to intervene in the exercise of statutory discretionary power, in order to respect separation of powers.
The courts will interpret discretionary statutory powers in a way that upholds key rule of law principles, such as fairness, legality and reasonableness, so that they can ensure some degree of legal control over how such powers are exercised by different parts of government.
The courts will be prepared to invalidate powers given to different parts of the executive if they contain broad discretionary powers, as these are seen to be damaging to the rule of law.
The courts will interpret discretionary statutory powers in a way that upholds key rule of law principles, such as fairness, legality and reasonableness, so that they can ensure some degree of legal control over how such powers are exercised by different parts of government.
Two students were having a debate about how the principle of the Rule of Law could be described. Which of the following statements would NOT be considered as an important aspect of the Rule of Law?
Parliament has the right to make or unmake any law whatsoever.
There should be equality before the law.
It is important that citizens should be able to have effective access to the law.
It is important that legal processes are fair.
Government should act within the legal authority given to it.
Parliament has the right to make or unmake any law whatsoever.
Correct. This relates to the principle of Parliamentary Sovereignty rather than to that of the Rule of Law, as it is about where law comes from rather than the nature of it.
In order to safeguard against financial fraud Parliament passed a (fictitious) Act allowing the (fictitious) Data Security Agency (‘DSA’) to ‘search any building in which data is kept or stored electronically which the DSA believes could reveal information relevant to a criminal investigation’. The DSA has recently forcibly entered and searched the premises of a financial services company in the City without notice or search warrant, as its Director believed that the company’s managing director had unjustifiably refused to disclose financial data to the Crown Prosecution Service.
Which of the following best describes the likely approach of the court if the company decides to take up a legal case against the DSA for its actions?
The court is unlikely to accept jurisdiction to hear the challenge to the DSA’s actions, as it will stress that these actions were taken under clear statutory powers and that any rule of law concerns about the nature of these powers have to take second place, constitutionally, to the higher authority of Parliament.
On the basis that the powers relate to potential evidence gathering for criminal investigation, the court is likely to reject any challenge by the company as the question of what action is necessary in this context is a question for the DSA and not for the court.
As the power to enter and search the premises is a discretionary power, based upon the DSA’s belief that a search is needed to reveal information relevant to a criminal investigation, the court is likely to be very reluctant to allow any challenge to DSA’s action, owing to the discretionary nature of DSA’s power.
The court would take a literal approach to the legislation and is accordingly likely to find that the DSA has no liability for taking this action.
The court faces a difficult issue here which will involve it in balancing its assessment of the purpose and intent of these powers, given by Parliament, with the impact upon the company of what appear to be quite draconian actions. It is probable that a modern court will put the DSA to proof in relation to the lack of ‘due process’ and detailed accusations against the company, and be prepared to declare the search unlawful, if insufficient evidence can be supplied that such action was necessary.
The court faces a difficult issue here which will involve it in balancing its assessment of the purpose and intent of these powers, given by Parliament, with the impact upon the company of what appear to be quite draconian actions. It is probable that a modern court will put the DSA to proof in relation to the lack of ‘due process’ and detailed accusations against the company, and be prepared to declare the search unlawful, if insufficient evidence can be supplied that such action was necessary
Correct. This answer reflects how the modern courts will interpret and assess the legislative position in the light of substantive rule of law concerns over how discretionary powers have been exercised. It is possible to see a precursor of this kind of approach in Lord Denning’s judgment in the Court of Appeal in the Rossminster case.
In a bid to reduce expenditure the Ministry of Justice (‘MoJ’) has adopted a new policy on costs in the Social Security Tribunal. Under a recently introduced statutory instrument (‘S.I.’) the MoJ has imposed a differential fee structure, meaning that claimants who lose their applications to the Tribunal have to pay a ‘closure fee’ of £100 at the end of the case, though there is discretion for judges to disregard this in ‘exceptional circumstances’. The legality of this measure, which has led so far to a 50% reduction in the number of cases reaching the Tribunal, is now being challenged by a pressure group acting for families with children living in poverty.
Which of these outcomes is the most likely when the case reaches the Administrative Court for judicial review?
The court will look at the strict wording of the S.I. and its parent Act and apply this literally so, if it considers that this allows a ‘closure fee’ to be levied, this will be enforced regardless of its effect.
The court will examine the relevant S.I. in detail and is likely to put a significant amount of store by the importance of the principle of access to justice. However, it will decline to take any evidence on the overall impact of the fee on numbers of cases, as it will be obliged to look at this issue purely as a matter of principle.
The court will refuse to intervene in this matter, as it will point to the provision in the S.I. allowing for discretion to disregard the fee, as well as being conscious that it should be deferential in an area involving finance.
The court is likely to put considerable emphasis on the impact caused by the introduction of the closure fee and find that this has severely undermined the important constitutional principle of access to justice. There is a strong possibility that the court will consider the fee to be unlawful, in the sense that Parliament cannot have intended to allow such a change in the parent Act, and therefore quash the S.I.
The court is likely to take into account the 50% reduction in cases and find that this demonstrates how the principle of access to justice has been damaged. It will therefore make an order reducing the ‘closure fee’ by 50%.
The court is likely to put considerable emphasis on the impact caused by the introduction of the closure fee and find that this has severely undermined the important constitutional principle of access to justice. There is a strong possibility that the court will consider the fee to be unlawful, in the sense that Parliament cannot have intended to allow such a change in the parent Act, and therefore quash the S.I.
Under a (fictitious) Act of Parliament passed in the 1950s, county councils were given the power to make loans to farmers to help them purchase additional animal feed in times of exceptionally difficult weather conditions. Over the last year farmers in one county in south-west England have encountered a sustained period of flooding. The situation has been so dire that the local county council has gone ahead to give out non-repayable grants to more than 100 local farmers. This expenditure has been contested, however, by a local Council Taxpayers’ association, which has now taken the county council to court to review its decision.
Which of the following is most likely to be the court’s reaction?
The court will find that the county council has technically acted outside the strict powers given to it by Parliament. However, it will not find its actions unlawful because it will be able to take into account the fact that the Act is many decades old. It is therefore likely to interpret its provisions in the light of more modern economic conditions, in which it is imperative to support the agricultural sector in rural areas.
The court will adopt the so-called ‘legality principle’, associated with the case of Simms, and declare that Parliament, when passing the relevant Act, could not possibly have intended that more favourable financial assistance, in the form of non-repayable grants, would be refused in exceptional cases.
The court will fully interpret the relevant legislation, under which the county council was acting, but it appears at face value that it was not given the statutory power to give grants, only to provide loans. It is likely, therefore, that its actions will be declared ultra vires and therefore unlawful.
The court will find the dispute to be non-justiciable, as it relates solely to a matter of local government finance.
The court will fully review the relevant legislation and will do its utmost to interpret it in such a way as to favour the individual farmers, concluding that the payment of grants was lawful.
The court will fully interpret the relevant legislation, under which the county council was acting, but it appears at face value that it was not given the statutory power to give grants, only to provide loans. It is likely, therefore, that its actions will be declared ultra vires and therefore unlawful.
