The Rule of Law

Question 1

What is the Rule of Law?

Answer 1

How laws are made
How the system works
How the legal system works
Whether the protection of Human Rights (Substantive)

Question 2

What is the difference between formal and substantive meanings?

Answer 2

Concerned with whether the law is that sense was a good or bad law.

Question 3

Whom are the three theorists of the Rule of Law?

Answer 3

Professor Joseph Raz
Professor Albert Dicey
Lord Bingham

Question 4

What does Raz state about the rule of law?

Answer 4

May institute slavery without violating the rule of law.

Question 5

What are Raz’s four principles about how law’s should be?

Answer 5

1. Prospective, open and clear
2. Stable
3. Made properly (under open, clear rules)
4. Applied by independent judges

Question 6

What are the remaining four principles?

Answer 6

5. Be open and fair
6. Review whether the government and Parliament obey the Rule of Law
7. Be accessible
8. Not allow arbitrary action by police or prosecutors

Question 7

What are the three parts to Dicey’s theory?

Answer 7

People should only be punished under the ordinary law, in ordinary courts
No-one is above the law.
Judges protect our liberty through ordinary cases.

Question 8

What does Dicey believe?

Answer 8

People should be only punished for breaches of ordinary law, in ordinary courts, not through special law or special courts. Discretion is dangerous.

Question 9

What does Dicey state about discretionary powers?

Answer 9

where there is discretion there is room for arbitrariness. Used to bypass the ordinary law. State punishing us through special courts.

Question 10

What are the examples of discretion powers?

Answer 10

Sentencing of criminals
Acquiring British citizenship
Declaration of war
Parliament’s power to “pass what legislation it pleases

Question 11

Does the UK have a history of special court laws?

Answer 11

Star Chamber - punishes people for immoral action even if law has not been broken.

Question 12

Is discretion too dangerous?

Answer 12

Dicey claims it is something in which is too dangerous to be allowed.

Question 13

Is discretion always a bad thing?

Answer 13

Lindley v Rutter 1981 - young woman out drinking too much and swore at police - had her bra removed. Discretion is allowed and required.

Question 14

What is Diceys second principle of the rule of law?

Answer 14

No- one is above the law. Everyone is responsible for their actions under the ordinary law.

Question 15

Why should the law apply to everyone?

Answer 15

Ensures fairness and consistency.

Question 16

What was held in the case of Yip Chiu-Cheung (1995)?

Answer 16

Y agreed with an undercover police officer to smuggle heroin into Australia.
Although the police officer had good motives he intended to commit a criminal offence. Therefore, Y was guilty of conspiracy.
This case illustrates the principle that ‘no-one is above the law

Question 17

Whom in which has an illegal immunity?

Answer 17

Children
Diplomats
Heads of State
Judges
Members of Parliament

Question 18

What is meant by Equality before law?

Answer 18

Entick v Carrington - no one is above the law - must point to some legal authority

Question 19

M v Home Office 1994?

Answer 19

Contempt of Court - ignoring a court order. Individual asked for sanctuary. the argument that there is no power to enforce the law … against a minister would, if upheld, establish the proposition that the executive obey the law as a matter of grace and not as a matter of necessity

Question 20

What is Dicey’s third theory of the rule of law?

Answer 20

Our constitution is made, and our liberty is protected, by decisions of judges in ordinary courts

Question 21

Can judges protect our liberty? R v Horseferry Magistrates Court.

Answer 21

If the court is to have the power to interfere with the prosecution, it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action.

Question 22

R (on the application of Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36

Answer 22

The right to be told of an administrative decision against you

Question 23

R (on the application of Anufrijeva) v Secretary of State for the Home Department

Answer 23

It is … a cardinal principle of the rule of law … that … effect should be given to a clear and unambiguous legislative provision.”

Question 24

The executive can do anything

Answer 24

that is not unlawful - Malone v MPC

Question 25

Can judges be unwilling to protect liberty?

Answer 25

Liversidge v Anderson - Yes

Question 26

What are the principles from IRC v Rossminster [1980] AC 952

Burmah Oil v Lord Advocate [1964] 2 All ER 348

Answer 26

Judges may be unable to protect our liberty because state action may be authorised by an Act of Parliament

Question 27

What are the four principles held from Lord Bingham in relation the rule of law?

Answer 27

The law should be accessible, clear and predictable.
Legal questions should be normally decided by applying law, not discretion.
Laws should apply to everyone unless objective differences justify treating people differently.
Law must protect human rights.

Question 28

What are the four remaining principles from Lord Bingham?

Answer 28

The legal system must enable people to resolve disputes at a reasonable cost, in a reasonable amount of time.
Governments must use their powers reasonably and honestly for the right purposes.
The court process should be fair.
The state must comply with international law