The Rule of Law

Question 1

What is the meaning of the core rule of law?

Answer 1

“Government by Law” requires the state to have legal authority for all of its actions.
Equality before the law - ‘[E]very official from the Prime Minister down to the constable or collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen’ (Dicey).
It is morally neutral - no good or bad law, simply law that must be followed.

Question 2

What is the meaning of the substantive rule of law?

Answer 2

Rule of law should invalidate discriminatory laws/laws breaching human rights - should the rule of law comply with our human rights?

Question 3

What is the meaning of the extended rule of law?

Answer 3

Laws must have certain values or qualities such that they are capable of being followed.
Compatible with Article 6 of ECHR - must be a fair and independent judiciary, must be open justice. MORALLY NEUTRAL.

Question 4

What did A.V. Dicey say about the core rule of law?

Answer 4

‘We mean, in the first place, that no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established before the ordinary courts of the land.’

Question 5

According to Lon Fuller, which qualities must laws have to comply with the extended rule of law?

Answer 5

(i) Overarching rules
(ii) Published
(iii) Prospective not retroactive
(iv) Clear
(v) Not impossible to fulfil
(vi) Not contradictory
(vii) Announced then followed
(viii) Stable

Question 6

Criticism of the substantive rule of law?

Answer 6

If you make the rule of law include ideas of human rights it starts to lose its power because people disagree about whats a morally good or bad law. Undermines the sovereignty of the law.
Substantive rule of law gives more power to the judiciary to limit the governments power - seems to politicise the judiciary where they can make decisions about political issues (Miller 2).

Question 7

Criticism of extended/core rule of law?

Answer 7

Most of those people in power who are able to make the law do not represent wider society, i.e. they can limit the power of women/people in financial need and still comply with the rule of law as it is ‘morally neutral’. Legitimises laws that reflect the interests of the powerful.

Question 8

How did the rule of law affect Miller 2?

Answer 8

Judiciary used their rule of law powers to limit the scope of the Prime Ministers prerogative power to prorogue parliament.

Question 9

How did the core rule of law affect Entick v Carrington?

Answer 9

‘By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my license, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass … . If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him’.
Promotes equality before the law - that members of the government cannot simply trespass upon his property because of their power - their warrant had no basis in law.

Question 10

What is a limitation to the rule of law?

Answer 10

The government can grant really wide powers with legal authority and means there is no limit to their power.

Question 11

What is the significance of Malone v Metropolitan Police Commission?

Answer 11

Malone had his phone tapped to acquire evidence against him in criminal proceedings.
At the time there was no legal basis for tapping people’s phone.
There was also no HRA - court used the fact that we have the freedom to act how we like so long as it is not unlawful meant that the minister is able to do what he wants so long as it is not unlawful, and since there was no law criminalising the tapping of phones, the court used this to support the fact that the evidence would be admissible in a court.

Question 12

What was the aftermath of Malone?

Answer 12

Malone took his case to ECtHR to argue that his Article 8 right to privacy had been breached. Court agreed holding that there was no law permitting phone tapping. As a result the UK passed a law which did (Interception of Communications Act)

Question 13

What is the significance of M v Home Office?

Answer 13

Concerned the holding to account the Home Secretary. Home Office tried to deport an asylum seeker however their defence sought an injunction from a judge which prevented the HO from deporting the man until there was a full hearing. HO failed to comply, and court ordered that M must be returned immediately to the UK. HO said that the ruling was not binding on them and he ignored it, and M was deported back to his home country.

Question 14

What are some exceptions to equality before the law?

Answer 14

1. Diplomatic immunity

2. MPs cannot be sued for what they say in court.

Question 15

Lord Templeman on the importance of equality before the law?

Answer 15

“[T]he argument that there is no power to enforce the law by injunction or contempt proceedings against a minister in his official capacity 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 16

Example of where Parliament has passed legislation with retrospective effect?

Answer 16

Burmah Oil v Lord Advocate - House of Lords judgment in favour of £31 million in damages to Burmah Oil.
HOWEVER this result was overturned by statute created by parliament: War Damages Act 1965, didn’t allow countries to sue for damage caused in war (included claims for damages that have already taken place).

Question 17

What did Lang LJ say about retrospective legislation?

Answer 17

“Parliament’s undoubted power to legislate to overrule the effect of court judgments generally ought not to take the form of retrospective legislation designed to favour the Executive in ongoing litigation in the courts brought against it by one of its citizens”

Question 18

How does the case of R v Chambers show the need for clarity and stability of the law?

Answer 18

Concerned a man who pleaded guilty to evading customs duty - appealed saying that the relevant section of the law under which he had been convicted had actually been suspended by regulations. Law was so complex that the prosecution did not know that the section had been suspended. Suggests that in order to have true open justice, not only must legislation be publicly available, but it must be ACCESSIBLE (i.e. written in clear and simple language)

Question 19

Example of the extended rule of law limiting Parliaments powers?

Answer 19

Anisminic v Foreign Compensation Commission - Challenged an ouster clause found in the Foreign Compensations Act (S.44) which held that the decisions of the FCC could not be challenged. Courts should be able to hold the FCC to account - said that what parliament intended is for the FCC’s determinations to not be questioned by the courts if they were acting within their jurisdiction (lawfully), but if they’re acting unlawfully they can be held to account - undermines the attempt to oust their jurisdiction.

Question 20

What is an ouster clause?

Answer 20

A clause included in a piece of legislation to prevent the courts from using the rule of law to check the power of the executive.

Question 21

What does R (Evans) v Attorney General (2015) UKSC show about the access to justice in the UK?

Answer 21

Challenged whether it should be possible for the attorney-general to be able to veto decisions of the judiciary.
“FOIA 2000, through section 53, expressly enables the executive to overrule a judicial decision, but only “on reasonable grounds” - held that if legislation is going to infringe on people’s rights then it will be interpreted narrowly by the courts.

Question 22

How does miller 2 show the use of the extended rule of law?

Answer 22

Limits the scope of the executive’s powers - ensures that they cannot act unconstitutionally and without being held accountable.

Question 23

M Horowitz criticism of non substantive forms the rule of law?

Answer 23

‘By promoting procedural justice it enables the shrewd, the calculating, and the wealthy to manipulate its forms to their own advantage.’

Question 24

Anatole France criticism of non substantive forms of the rule of law?

Answer 24

‘… [T]he majestic even-handedness of the law, which forbids rich and poor alike to sleep under bridges, to beg in the streets and to steal bread.’

Question 25

Lord Hoffman on the principle of legality.

Answer 25

In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.