WK 3 - The Rule of Law

Question 1

Define a constitutional principles

Answer 1

Fundamentally important values concerning the constitution

Question 2

Explain role of constitutional principles

Answer 2

• Explain constitutional arrangements
• Influence the constitutional agreements politically or legally
• Provide benchmarks for evaluating constitutional actors

Question 3

Name the tree main constitutional principles in the UK

Answer 3

(1) Rule of Law (legality)
(2) Separation of powers (responsible gov’t)
(3) Parliamentary sovereignty (democracy)

Question 4

Define the rule of law

Answer 4

The idea that the government must operate under law

Question 5

Explain the distinction between the RoL and Rule of Men

Answer 5

Decreases the level arbitrariness in government

[Fairer for gov’t to be ruled by rules over an individual]

Question 6

Explain the distinction between RoL and Rule by Law

Answer 6

Latter is instrumental use of law as tool of political power

Question 7

Why is the Rule of Law important?

Answer 7

Provides clarity, certainty and accountability

Question 8

Why is RoL relevant?

Answer 8

Constitutional principle

Question 9

Why is there disagreement over RoL?

Answer 9

Disagreement revolves around definition and scope.

Question 10

Describe scope of RoL

Answer 10

(1) Bare principle of ‘legality’

(2) Formal conception of RoL (e.g., Fuller, Raz)

(3) Substantive conception of RoL (e.g., Bingham)

Question 11

Explain the bare principle of legality

Answer 11

If something is enacted following the law-making procedure prescribed in that legal system, it must be regarded as law.

e.g., something is an Act of Parliament if approved by both Houses of Parliament + King

Question 12

How is the bare principle of legality recognised in UK law?

Answer 12

(1) Entick v Carrington - issuing warrant to authorise agents to break into claimant’s house

(2) Jackson - was a law enacted in conformity with relevant procedure?

(3) Unison - the minister exceeded legal power in imposing fees decreasing access to employment tribunals

Question 13

Explain the formal conception (RoL)

Answer 13

Mainly concerned with ‘formal’ quality of law.

Laws should:
- be public and clear
- not have retroactive effect
- not change too often

Question 14

What is formal conception of RoL NOT concerned with

Answer 14

The content of law.

Question 15

How is formal conception judicially recognised in UK?

Answer 15

(1) Legal certainty: Anufrijeva
(2) Non-retroactivity: Pierson
(3) Access to independent courts + tribunals: Unison
(4) Access to judicial review of gov’t action: Privacy International

Question 16

Explain the substantive conception

Answer 16

As well as formal qualities, RoL also requires a ‘good’ content of law, e.g.,:
- Respect of the freedom of expression
- Respect of the principles of equality

Question 17

Why is judicial recognition of the substantive conception difficult?

Answer 17

• Disagreement as to its main values
• Are freedom of expression/equality constitutional principles?

e.g., basis: HRA 1988 or RoL?

Question 18

What happens if government action is inconsistent with RoL? Exception?

Answer 18

Courts will strike down government action inconsistent with RoL BUT judges will have different views on its extent.

Question 19

How do courts try to, where possible, interpret legislation?

Answer 19

Courts try to give legislation a meaning which s compatible with the RoL

Question 20

What happens if legislation cannot be interpreted compatibly with RoL? Exceptions?

Answer 20

Courts will, generally, hold legislation (except Acts of Parliament) to be invalid if it cannot be interpreted compatibly with RoL

Question 21

Can parliament, legally, override all requirements of RoL? Why?

Answer 21

Legally yes, as Parliament is sovereign. It can even say it is not a constitutional principle.

However, parliament recognised in Constitutional Reform Act 2005, s1