Term
| At a basic level, what is rule of law? |
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Definition
| It is the principle that those exercising a governmental function should not be able to exercise power arbitrarily, but rather be subject to legal controls |
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Term
| What is the Formal approach to RoL? |
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Definition
RoL = a procedural safeguard
Basically, RoL means that there are laws, and everyone is bound by them |
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Term
| What is the Substantive approach to RoL? |
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Definition
RoL = a moral & procedural safeguard
Basically, you need rules to govern everyone, but the rules also have to possess some 'internal morality'. |
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Term
| What is Lord Bingham's 'attempt to define RoL'? |
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Definition
| 'The core of the existing principle is that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts' |
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Term
| Which recent Act identified RoL as a constitutional principle? |
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Definition
| Constitutional Reform Act 2005 - however it left RoL undefined, leaving it to the judges to rule on what it means in the context of a case |
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Term
| S1 Constitutional Reform Act 2005 |
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Definition
| Identifies RoL as a constitutional principle. However, it left RoL undefined, instead leaving it to the judges to rule on what it means in the context of a case |
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Term
| According to Bingham, what are the 8 RoL requirements? |
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Definition
i) The law should be accessible, clear and predictable
ii) Legal issues should ordinarily be resolved through legal processed and not through exercise of (administrative) discretion
iii) The law should apply equally to all
iv) The law should afford adequate protection for human rights
v) There should be access to justice in the courts without inordinate delay or expense
vi) Public officials, including ministers, should exercise the powers they have been granted in good faith and within the limits of those pwoers
vii) Legal and adjudicative processes should be fair
viii) The state should comply with its obligations under international law |
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Term
| Is Bingham's approach to RoL substantive or formal? |
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Definition
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Term
| In the UK, what is the most mechanism through which RoL is enforced? |
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Definition
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Term
| Which cases can be used to show upholding of the principle of 'supremacy of regular law over arbitrary power'? |
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Definition
Entick v Carrington [1765]
Kelly v Faulkner [1973]
Malone v UK [1985]
Re M [1993] |
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Term
| Entick v Carrington [1765] |
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Definition
MUST HAVE LEGAL JUSTIFICATION FOR ACTIONS
search warrant case |
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Term
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Definition
| Norther Ireland - refused to accept that British soldiers dealing with an emergency should be exempt from the normal legal requirements for the execution of a valid arrest, just because of the security situation |
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Term
| Malone v UK [1985] - on RoL |
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Definition
COURT REFUSING TO DO JUDICIAL LAW-MAKING
In this case, the courts refused to recognise a 'Right to Privacy' in British law. Instead holding that it was up to Parliament to do this, through legislation. |
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Term
| How does Judicial Review help to reinforce the RoL? |
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Definition
| Government = answerable to the law & bound by the law. |
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Term
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Definition
| The courts made clear that the Home Secretary had to abide by a court order. |
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Term
| Which case can be used as an example of the British executive NOT acting in accordance with the RoL requirement that 'Laws must be sufficiently clear' |
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Definition
| Burmah Oil Co. Ltd v Lord Advocate [1965] |
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Term
| Burmah Oil Co. Ltd v Lord Advocate [1965] - on RoL |
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Definition
| Government introduced a new (retrospective) law to overcome a court judgement that the British govt had to pay the C compensation. |
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Term
| What is the 'classic' example of the Courts acting in contravention with the RoL? |
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Definition
| Judicial law making e.g. Shaw v DPP = arbitrary exercise of power + not sufficiently clear |
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Term
| The Sunday Times v UK [1979] |
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Definition
COURT DISCUSSED CERTAIN QUALITIES THAT MUST BE FULFILLED IN ORDER FOR THE LAW TO MEET THE CRITERIA OF BEING SUFFICIENTLY CLEAR.
'A norm cannot be regarded as law unless it is formulated with sufficient precision to enable the citizen to regulate his conduct.
He must be able to foresee, to a reasonable degree, the consequences which a given action may entail.
Those consequences need not be attainable with absolute certainty. Whilst certainty may be desirable, it brings with it excessive rigidity,
Accordingly, many laws are inevitably couched in terms which are vague and whose interpretation and application are questions of practice.' |
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Term
| Rossminster [1980] - w.r.t RoL |
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Definition
| CA hearing attempted to uphold the RoL. HoL hearing overturned the CA judgement on the basis of SoP and Parliamentary Sovereignty. However, HoL did acknowledge that the Act in question is flawed and in contravention with RoL... however, more emphasis placed on SoP and PS. |
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Term
| R v Somerset County Council ex p Fewings |
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Definition
EXAMPLE OF A CASE IN WHICH JUDGE HAS USED ROL AS A PRINCIPLE OF INTERPRETATION - WHICH HAS LEAD TO ROL TAKING ON A MORE SUBSTANTIVE QUALITY
Case concerning a council buying land and banning fox hunting 'for the benefit of the community' (statute gave the council the power to do what it liked with land it owned, if it was 'for the benefit of the community'). In deciding whether this exercise of power was ultra vires, court considered whether banning fox hunting was for the benefit of the community. |
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Term
| Liversidge v Anderson [1942] - on 'war times' |
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Definition
DURING EMERGENCIES E.G. WAR. THE COURTS ARE OFTEN MORE RELUCTANT TO INTERFERE WITH GRANTS OF DISCRETIONARY POWER
Home Secretary could imprison anyone who he had 'reasonable cause to believe' was hostile
HELD - majority = if the HS honestly believed he had reasonable grounds = OK
Minority = 'reasonable grounds to believe' requred an objective factual standard, therefore, HS had to show evidence for his justification |
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Term
| Which cases can be used as examples of where statutes have granted wide discretionary powers to officials, and the courts have been unwilling to interfere with the wide discretionary powers? |
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Definition
Liversidge v Anderson [1942]
Hosenball [1977]
Cheblak [1991]
Gallagher [1995] |
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Term
| Liversidge v Anderson [1942] - on wide discretionary powers |
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Definition
COURT UNWILLING TO INTERFERE WITH WIDE DISCRETIONARY POWERS - IN TIME OF EMERGENCY
Home-sec not required to give reasons for detaining a person at a time of national security |
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Term
| Hosenball [1977] - on wide discretionary powers |
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Definition
COURT UNWILLING TO INTERFERE WITH WIDE DISCRETIONARY POWERS - IN TIME OF EMERGENCY
Home-sec was not required to give reasons for deporting an American journalist |
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Term
| Chelak [1991] - on wide discretionary powers |
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Definition
COURT UNWILLING TO INTERFERE WITH WIDE DISCRETIONARY POWERS - IN TIME OF EMERGENCY
Home-sec not required to give reasons for keeping a person imprisoned whilst awaiting his deportation |
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Term
| Gallagher [1995] - on wide discretionary powers |
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Definition
COURT UNWILLING TO INTERFERE WITH WIDE DISCRETIONARY POWERS - IN TIME OF EMERGENCY
Home-Sec issued an exclusion order against Gallagher
CA held, since the Home-sec had been given the 'widest possible discretion', he was not obliged to give specific reasons for issuing the order where the case involved matters of nationals ecurity |
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Term
| Why does NOT requiring officials to give reasons for actions interfere with RoL? (where a statute confers the power to do something, and it is uncertain whether the official has to give reasons or not) |
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Definition
| Because it means that their reasons for taking certain actions cannot be abjectively assessed. Therefore, the official is given extremely wide discretionary power - potentially anything they do will be lawful. |
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Term
| What has been the general trend w.r.t the courts deference to wide discretionary powers? |
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Definition
In recent cases, the courts have been less deferential to the exercise of discretionary powers.
Whereas in earlier cases e.g. Gallagher. Liversidge & Cheblak, the courts allowed the Home-sec to have wide discretionary powers (by not requiring him to give reasons for certain actions). In more recent cases, they have been less deferential. |
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Term
| What is a key issue over which the courts have not been deferential to the exercise of wide discretionary powers? |
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Definition
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Term
| What has been the general trend w.r.t the courts deference to wide discretionary powers? |
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Definition
In recent cases, the courts have been less deferential to the exercise of discretionary powers.
Whereas in earlier cases e.g. Gallagher. Liversidge & Cheblak, the courts allowed the Home-sec to have wide discretionary powers (by not requiring him to give reasons for certain actions). In more recent cases, they have been less deferential. |
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Term
| What is a key issue over which the courts have not been deferential to the exercise of wide discretionary powers? |
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Definition
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Term
| The RoL element of 'equality before the law' can be split in to two aspects... what are they? |
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Definition
i) Everyone is subject to the same law
ii) Everyone is subject to the ordinary courts of the land |
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Term
| In the UK, there are many long-standing rules which create inequality under the law. Name 6 of them: |
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Definition
i) The powers of the Queen
ii) Certain officials (e.g. police officers & customs officers) are in possession of special powers
iii) Superior judges are immune from civil litigation for acts done within their official jurisdiction
iv) Parliamentary privilege
v) Diplomatic immunity
vi) The law of blasphemy only extends to the Christian religion |
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Term
| Stourton v Stourton [1963] |
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Definition
PARLIAMENTARY PRIVILEGE HELD TO = IMMUNITY FROM THE LAW
D had failed to give his ex-wife some property
HELD - parliamentary privilege protected him, and wife could not sue him for the property
NOTE - PP is only supposed to protect MPs for actions done whilst they are working |
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Term
| In Re M [1993], how did the court reconcile the theory that 'the Crown can do no wrong' with their desire to vindicate the RoL? |
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Definition
Drew to the final conclusion that if Parliament took the view that it was appropriate for government Ministers to enjoy this immunity (immunity from being held inc ontempt), it could create it for them instatute.
THEREFORE - The Crown can do no wrong... however, acting within the current legislative framework, the Minister can be held in contempt |
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Term
| Discuss the HRA 1998 w.r.t RoL... |
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Definition
| The HRA incorporates the ECHR into British law, therefore, enhancing the UK's legal framework from a substantive RoL conception. However, the HRA does not give the courts authority to strike down incompatible legislation - instead they can only make declarations of incompatibility and then ministers must re-formulate the law. In ways, this qualifies the UK citizen's access to the fundamental rights contained within the ECHR. |
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Term
| What afeect does the 'Declaration of Delhi 1059' have on RoL in the UK? |
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Definition
| The Declaration of Delhi was a declaration that 'the purpose of all law should be respect for the supreme value of human personality'. Clearly, adherence to this declaration would = Substantive RoL. |
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Term
| How does Parliamentary Sovereignty interact with RoL? |
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Definition
| If we adopt a formal RoL conception, Parliamentary sovereignty could = tyranny (all the court could do is check that Parliament are acting accordance with the law). However, courts adopt more of a substantive approach... therefore, judiciary can interpret statutory provisions in accordance with common law (& ECHR) notions of fairness and justice, necessary to uphold democratic principles |
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Term
| Simms [2000] - on RoL & Parliamentary Sovereignty |
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Definition
WHERE A STATUTE HAS AMBIGUOUS WORDS, JUDGES WILL PRESUME & INTERPRET THEM SO AS TO INFRINGE AS LITTLE AS POSSIBLE WITH BASIC HUMAN RIGHTS - IF PARLIAMENT WANT TO INFRINGE UPON HUMAN RIGHTS, THEY MUST SQUARLY CONFRONT THAT IT IS DOING AND ACCEPT THE POLITICAL COSTS
Cs = prisoners. Home sec had introduced a policy of banning journalists from speaking to prisoners.
HELD - home sec's policy was unlawful.
The court considered whether the Home-secs policy was lawful, in conjunction with the right to freedom of expression. KEY - if it had just been a formal approach, the Home-sec's policy would = lawful. However, by taking account of justice, fairness and democracy, Home sec's policy = unlawful.
LORD HOFFMAN - while he noted that parliamentary sovereignty meant parliament could enact any legislation it wanted, he also noted that courts will adopt presumption of as little interference with human rights as possible. Therefore, if Parliament want to infringe with rights, they must squarely confront what they are doing and accept the political consequences |
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Term
| What does Simms [2000] tell us about Parliamentary Sovereignty & RoL? |
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Definition
| It tells us that the courts will adopt a substantive approach to RoL, and while the courts will accept that Parliament can do what it likes, because of it's sovereignty, in interpreting legislation they will use Substantive RoL as an interpretation tool and presume that legislation infringes as little as possible with human rights (unless a statute clearly & explicitly states that it will infringe with rights). |
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Term
| How is SoP connected to RoL? |
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Definition
| The judiciary, through performing its constitutional function of enforcing the law (as made by Parliament), keeps the executive within the bounds of its lawful authority and so upholds the law as made and sanctioned by Parliament. |
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