The Rule of Law Flashcards

Question

How do ouster clauses try to allow the Government to escape accountability?

Answer 1

Governments sometimes attempt to prevent courts from hearing challenges to the decisions of the public bodies, by inserting ouster clauses into legislation. -If the courts read these literally, the jurisdiction to hear claims that a public body acted unlawfully would be ousted. -The court is hostile to outer clauses, instead using the rule of law as something to be interpreted.

Answer 2

'A non-democratic legal system, based on denial of human rights…in principle conform to the requirements of the law better than any of the legal systems of the more enlightened western democracies.'

Answer 3

The rule of law is aimed at the common good which requires adherence to the basic features of human rights.

Answer 4

The rule of law is based on a 'fundamental compact' between the individual and the state, with both sacrificing a 'measure of the freedom and power which they would otherwise enjoy'. Believes a broad interpretation of the law is mostly beneficial. -Practical.

Answer 5

"The core of the existing principle is, I suggest, that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts".

Answer 6

Law should not be made in secret, but made publicly. The people can see justice being achieved and how the law operates.

Answer 7

“The rule of law is an amalgam of standards, expectations, and aspirations: it encompasses traditional ideas about individual liberty and natural justice, and, more generally, ideas about the requirements of justice and fairness in the relations between government and governed."

Answer 8

Not just should those rules be open and accessible, they should have particular quality such as support justice and fairness. Only rules which are compliant with law should be made. -Principled.

Answer 9

-Procedural/surface considerations. -The form of the law/the way it looks, legal procedure. -Don't believe it is the law's concern of the good and bad (this is political). -Not about content. -Not retrospective looking, concerned with clarity, equality, accessibility and the prospective nature of law.

Answer 10

In addition to the formal conception: -Concerned about content: -Value considerations ○ Human rights ○ Deeper, moral implications. -Fairness, justice.

Answer 11

Substantive.

Answer 12

Such as, -Limited government -The social contract

Answer 13

-Natural law, concepts of fairness and justice -Positivism, the law determines legality, over its merit. -Law lacks moral content and is just a system of rules. We should be interested in how we identify what the right rules are.

Answer 14

-An aspirational basis for the protection of rights or/and -A concrete basis for the protection of legal rights

Answer 15

Formal / positivist / thin. -Mutually neutral, contrast with natural law. -His list of 8 features/qualities of the rule of law is incomplete.

Answer 16

Law as a tool, performing a function in society. A knife can be used for numerous things, what you cut makes it different to how it is socially interpreted. Yet the knife has no view as to why it is being used, so long as it serves its function. Concerned about the society wielding the knife, values matter to society and not internally to law.

Answer 17

'There are so many values it does not serve. Conformity to the rule of law is a virtue, but only one of the many virtues a legal system should possess. This makes it all the more important to be clear on the values which the rule of law does serve.’

Answer 18

A knife is not a knife unless it has some ability to cut. … Like other instruments the law has a specific virtue which is morally neutral in being neutral as to the end to which the instrument is put.’

Answer 19

Condemns this legal system, yet provided the rules were properly made they would conform with the rule of law. Society would hopefully be critical of that system.

Answer 20

'It will be an immeasurably worse legal system, but it will excel in one respect: in its conformity to the rule of law … The law may … institute slavery without violating the rule of law'.

Answer 21

All laws should be prospective and clear. 'An ambiguous, vague, obscure or imprecise law is likely to mislead or confuse at least some…’

Answer 22

Laws should be relatively stable and not change often.

Answer 23

‘The making of particular laws (particular legal orders) should be guided by open, stable, clear and general rules’

Answer 24

'The independence of the judiciary must be guaranteed’

Answer 25

‘The principles of natural justice must be observed’

Answer 26

‘The courts should have review powers over the implementation of other principles’

Answer 27

‘The courts should be easily accessible’

Answer 28

‘The discretion of the crime preventing agencies should not be allowed to pervert the law’

Answer 29

Accessibility of law and legal mechanisms.

Answer 30

Resolution of questions of legal right and liability ordinarily by application of law and not discretion

Answer 31

Equality before the law.

Answer 32

Adequate protection of fundamental human rights.

Answer 33

Existence of means to resolve civil disputes

Answer 34

Exercise of power by ministers and public officials in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers, and not unreasonably.

Answer 35

A fair trial/due process of law. The rules of the game are balanced.

Answer 36

Compliance by the state with its obligations in international law.

Answer 37

Four, seven and eight.

Answer 38

Argues that not all of law’s meaning is to be found in the rules – but instead may reside in other standards such as values. About the deeper values which underlies law itself, as believes not all of law's meaning is to be found in the rules. The principled position matters, even if the rules suggest a contrary outcome.

Answer 39

“Law’s constraints benefit society not just by providing predictability or procedural fairness, or in some other instrumental way, but by securing a kind of equality among citizens that makes their community more genuine and improves its moral justifications for exercising the political power.'

Answer 40

'It seems plain that constitutional theory cannot rest content with a narrow, formal conception of the rule of law' ‘We are obliged to confront wider questions of liberty, equality and autonomy'

Answer 41

Ø The King is subject to law but authority to rule is also received from God (divine right of Kings) Ø The King’s role is a product of law, and his power must be expressed through law, but he is without equal The only people the King is answerable to is the law and God.

Answer 42

‘… the King cannot change any part of the common law, nor create any offence by his proclamation, which was not an offence before, without Parliament.'

Answer 43

'Every Subject of this Realme, for injury done to him … by any other Subject … may take his remedy by the course of the Law, and have justice, and right for the injury done to him, freely without sale, fully without any denial, and speedily without delay.’

Answer 44

* A clear framework to the legal system underpinned by certain principles: * Limitations on the power of sovereigns. * Government only through law – i.e. through statute * Royal prerogative is controlled by law -The courts have a role in interpreting the law.

Answer 45

Constitutional rights connected with limited government * Personal security * Personal liberty Protection of private property.

Answer 46

Some practical apparatus -Limitation of the King’s powers (post-Glorious Revolution) -Parliament legislates in support of ‘general liberty’ -Government under law -The relationship between the powers exercised by Parliament and the Government is significant in protecting the law. -The courts provide a route to redress for breach of the law -Equality before the law

Answer 47

All equal before the law: 'Every official... is under the same responsibility for every act done without legal justification as any other citizen.’

Answer 48

The law should be certain, nor room for discretion.

Answer 49

English Constitution is a product of judicial decision-making. 'Constitutional law are results of ordinary law of the land.”

Answer 50

* Formal equality is important * Discretion (choice) in the application of law should be avoided (note continental misconception!) -Judges interpret and develop the law, and in so doing protect rights

Answer 51

'Nowhere in his book did he consider the power of authorities'.

Answer 52

* Formal equality is important. * Discretion (choice) in the application of law should be avoided (note continental misconception!) Judges interpret and develop the law, and in so doing protect rights

Answer 53

1) Dicey's accounts of Parliamentary sovereignty and rule of law are in tension with each other. 2) Dicey's view of the rule of law and Parliamentary sovereignty is too simplistic. 3)The above principles are interdependent, rather than independent.

Answer 54

Non-statutory executive authorisation for entry to search and seizure of property.

Answer 55

When chaos happens, he (Atkin) believed it is the time when you should most turn to the public powers/legal rules. ‘I protest, even if I do it alone, against a strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister.’

Answer 56

'Indefinite imprisonment without charge or trial is an anathema in any country which observes the rule of law.'

Answer 57

To maintain certainty and hierarchy of the power, it relies on the rule of law. 'Overtime these prerogative powers, collectively known as the Royal prerogative, were reduced as parliamentary democracy and the rule of law developed.'

Answer 58

"In the broadest sense, the role of the judiciary is to uphold and further the rule of law; more particularly, judges impartially identify and apply the law in every case brought before the courts.”

Answer 59

'The value to society of the right of access to the courts is…. Able to enforce their rights.. If they fail to meet their obligations… there is a remedy against them. It is that knowledge which underpins everyday economic and social relationships.'

Answer 60

'General rule of our constitutional law that justice is administered by the courts in public… open to scrutiny… an aspect of the rule of law in democracy… In a democracy, where the exercise of public authority depends on the consent of the people governed, the answer must lie in the openness of the courts to public scrutiny.'

Answer 61

'The Human Rights act… The importance of the Act is unquestionable. It does not however supersede the protection of human rights under the common law or statute, or create a discrete body of law based upon the judgements of the European Court.'

Answer 62

'The concept of the rule of law is not fixed for all time'

Answer 63

'The policing of its scope and the manner of its operation does not lie within the constitutional remit of the judiciary, which is to protect the rule of law.'