the rule of law theory

Question 1

2 principles of the UK constitution

Answer 1

the rule of law- webley and samuels 2021 “a theory or doctrine that describes the extent to which certain features are present within a legal system”
parliamentary sovereignty

Question 2

3 reasons why the rule of law is important

Answer 2

1. without it those in control of power can do whatever they want without reason
2. everyone thinks its important
3. its a fact of the UK constitution (the lord chancellors oath “i will respect the rule of law”, is in the constitutinal refrom act)

can be eroded by legislation- e.g nazi germany

Question 3

what is the rule of law: Dicey

Answer 3

no clear definition
A V Dicey 1897- introduced the term the rule of law
the rule of law in the UK constitution means:
1. no one can be punished unless they have broken the law (upto the government to decide what the law means)
2. everyone is equal before the law (even the crown, charles ii) M v Home office 1994, home secretary held legally accountable for unlawful actions of his department
3. the constitution is pervaded by the rule of law as the result of judicial decisions

criticised greatly
sir ivor jennings- it represents only Diceys own subjective notions of the rule of law

Question 4

the rule of law modern: narrow view (formalists)

Answer 4

procedural: set out the rules clearly and apply them (the procedure thrpugh the law is made and applied determines the extent to which the rule of law is respected
Joseph Raz 2019
first attempt: rule of law means law should be reasonably clear, stable, publicly available, general rules and standards, applied prospectively (buemah oil company ltd 1965 retrospective law making previous actions in war of damaging property legal)
second attempt (added criteria due to criticism): reasons should be publicly declared, fair, unbiased, roper opportunities to consuder, decisions should be reasonable, conventions should be followed

Question 5

the rule of law modern: broader view (substantivists)

Answer 5

considers formal conditions that must be met for both procedure and content of law
not enough to just create and publish rules, need to ensure that they are fair and good,
need to bring morality into law
Lord Bingham 2011:
the law must be accessible, not based on discretion, equally applied, exercised in good faith and fairly, protective of human, inclusive of international legal obligations…

rejecte dby raz- rule of law is a constitutional principles not a political one
T.R.S Allen- the rule of law demands that the state must be able to justify the law and actions based on princples of the common good

Question 6

how does the rule of law relate to other parts of the course?

Answer 6

seperation of powers-
no one shall judge their own case (McGonnell v UK 2000- wanted permission to live on land sold for agricultural use, the judge had overseen the past legislation governing that area, possibility of bias)
relates as aim of rule of law is to create fairness, so seperating the judciary and legislature prevents bias

the balance of powers-
the crown having sovereignty in parliament conflicts with the rule of law (for example acting retrosepctively)

Human Rights-
article 6 the right to a fair trial, article 7 no punishment without law (something everyone on this topic agrees with)

Question 7

European commission for democracy through law

Answer 7

venice commission concludes despite differences of opinion, consensus exists on the ore elements of the rule of law-
legality (case of entick v carrington 1765- unlawful to raid house)
legal certainty (able to anticipate what the law is going to be/ not acting retrospectively)
prohibition of arbitrariness
access to justice
respect for human rights
non-discrimibarion and equality before the law

Question 8

anisminic v foreign compensation commission 1969

Answer 8

company with £4 million worth of stock got damaged in war, Egypt took responsiblity in treaty with UK, UK passed foreign compensation act to determine how the money would be distributed for compensation
sc4 stated- the determination by the commission (decision) made under this act shall not be called in question in any court of law
-lord reid interpreted this as any valid decision cannot be questioned only invalid

Question 9

recent legislation that legalises terror, torture, slaver etc

Answer 9

-covert human inteligence sources act 2021 sc1- allows bodies such as the gambling commission to authorise criminal conduct on spys/snitches
-join committee on human rights raised concern fo this- as no express limit within the bill on what type of criminal conduct can be authorised such as rape, murder or torture
-contradicts its interpretation that no criminal conduct authorisation could ever be valid

-national security act 2020 a30- allows defences for such crimes if the act was necessary for the proper exercise of a function of an intelligence service

-A and others v SOS for home dept 2005- common law prohibits prohibition of torture
-ECHR- prohibits these
-treaties such as convention against torture and other cruel, inhuman or degrading treatment or punishment 1984 prohibts these