Rule Of Law(R)

Question 1

What is John Austin’s definition of law?

Answer 1

Defined law as being a command issued from a superior (the state) to an inferior (the inferior) and enforced by sanctions. This definition does not apply to regulatory law like setting out a will, nor does it cover the concept of judicial review where individuals may challenge the command made by a minister.

Question 2

How did John Salmond define law?

Answer 2

He defined law as being “the body of principles recognised and applied by the state in the administration of justice.” This is a broader definition that Austin’s.

Question 3

What was Dicey’s definition of law?

Answer 3

The rule of law is a symbolic idea. Dicey considered the rule of law as an important feature that distinguished English law from law in other countries in Europe. Dicey identified three elements to the Rule of law. These are:

1) No sanction without breach - no one should be punished unless they have broken the law.
2) One law should govern everyone.
3) Rights of individuals secured by decisions of judges.

Question 4

What was FA Von Hayek’s definition of the rule of law?

Answer 4

He agreed with Dicey that the essential component of the rule of law is the absence of any arbitrary power on the parr of the state. Writing in 1971 he said “stripped of all technicalities the rule of law means that the government in all it’s actions is bound by the rules fixed and announced in advance.” He believed that the law had become weaker because providing the action was authorised by the state then an act was lawful.

Question 5

Burmah Oil v Lord Advocate [1964] HL

Answer 5

Parliament passed the War Damage Act 1965 enacted to prevent others obtaining compensation.

Question 6

Congreve v Home Office [1976] CA

Answer 6

In Congreve v Home Office [1976] CA the Home Secretary tried to prevent purchase of TV licences to beat the rise in cost of the licences.

Question 7

Council of Civil Service Unions v Minister for the Civil Service [1984] HL

Answer 7

After Council of Civil Service Unions v Minister for the Civil Service [1984] HL the government banned trade union membership at a listening station.

Question 8

M v Home Office [1993] HL

Answer 8

Despite a court injunction the Home Office deported M, claiming a misunderstanding.

Question 9

R v Home Secretary ex p Fire Brigades Union [1995] HL

Answer 9

In R v Home Secretary ex p Fire Brigades Union [1995] HL the criminal injuries compensation scheme was altered using Royal Prerogative instead of pending statutory power, and was rules unlawful by the court.

Question 10

Gourmet v Union of Post Office Workers and others [1977] CA

Answer 10

A just legal system has rules, and principles that are understood by those applying them. There is machinery for applying the rules. The rules apply to all persons, no one should be above the law, and all people should be treated equally. As Lord Denning said, “be you ever so high, the law is above you.”

Question 11

Three case examples of judge’s independence.

Answer 11

1) I. 2003, David Blunkett condemned the release of the nine afghan hijackers.
2) In 2005, Charles Clarke criticised the release of terrorist suspects from Belmarsh.
3) In 2007, John Reid attacked the decision not to deport the murders of the London headmaster, Philip Lawrence, when he is released.

Question 12

How else can law be defined?

Answer 12

Law can also be described as a formal mechanism of social control, enforced through the courts and the legal system. Law applies to people throughout the country generally. There are also unwritten rules like local practices and customs, enforced by what the local community regards as normal behaviour.

Question 13

Codes Of Law.

Answer 13

There are codes of law within countries designed to govern all possible situations that may arise e.g. In France there was the Napoleonic Code. In many ways the theory of a complete code is attractive as it makes the law accessible and allows everyone to know exactly what their rights and duties are, but the law also need to be able to develop and change as society changes and needs arise.

Question 14

Types Of Law.

Answer 14

Law can be divided into different types of law. This includes national and international law.

Question 15

International Law.

Answer 15

This is concerned with disputes between nations. Much of the international law which effects UK comes from European Union when under the European Communities Act 1972 Britain gave up her sovereign right to rule when she became part of the European Union and hence forward agreed to accept treaties, regulations and directives that came from the European Union.

Question 16

National Law.

Answer 16

This applies to the country as a whole, even though Scotland, Ireland and Wales have devolved authorities over some aspects of their laws many of their principles are the same. National law is also divided into public and private law.

Question 17

What does public law govern?

Answer 17

1) a Constitutional law which controls the method of government and any disputes arising from it.
2) Administrative law which controls how Ministers of State and other bodies like local councils should operate.
3) Criminal law setting out types of behaviour which, if breached are punishable by the stage through the courts of England and Wales.

Question 18

Private Law which primarily deals with Civil matters and governs.

Answer 18

1) Contract
2) Tort
3) Family
4) Law of Succession
5) Company law
6) Employment law

Question 19

Civil and Criminal Matters.

Answer 19

There are also differences in the requirement of the burden of proof between civil and criminal matters. Criminal matters require a higher standard of proof that being “beyond reasonable doubt” while civil matters require proof based on the “balance of probabilities”. Cases are also tried in different courts.

Question 20

The Rule Of Law.

Answer 20

The rule of law is a fundamental principle of our constitution. The rule of law simply means that the state governs it’s citizens in accordance with rules that have been agreed upon.

Question 21

Unwritten Constitution.

Answer 21

Britain has an unwritten constitution it is not found in statute or any other written form. But we have a set of rules about who governs and the powers they have and how those powers can be transferred. These rules from our constitution. The sources of our constitution are:

• Acts Of Parliament
• Judicial decisions
• Conventions - are not laws but are traditions that have been followed over time.

Question 22

States Power.

Answer 22

The States power must be controlled by the law, the law sets limits on what the state can do. In our legal systems actions and decisions made by government ministers can be challenged by judicial review. Everyone must be equal before the law, no person is above the law. Those who carry out functions of the State are uncountable under the law for their actions. The law must be supreme. This is particularly true in England and Wales as it is developed through judicial decisions rather than being created by the executive.

Question 23

The Rule Of Law and Natural Justice.

Answer 23

The rule of law and natural justice require that everyone be subject to the same law, that the law should do justice by not punishing those whose actions are innocent or justified. That there must be certainty in the law, so that all can regulate their affairs accordingly. There must be access to independent tribunals and a system of appeals, and a means of preventing arbitrary law-making particularly by officials and inferior courts.

Question 24

The English Legal System

Answer 24

The English Legal System attempts to meet these repairmen to and is largely successful, there are however, concerns regarding access to justice and the implication of Access To Justice Act 1999. The Community legal Advice ensures legal advice and representation, but legal aid does not cover all types of cases, and people with even modest incomes may not be eligible. Darling J is supposed to have said, “The law, like the tavern is open to all”, but it may be more correct to say, as did Lord Justice Matthew almost a century ago, “In England justice is open to all, like the Ritz.”

Question 25

Joseph Raz’s definition of Law.

Answer 25

Joseph Raz’s also wrote in 1970’s recognised that the rule of law was a way of controlling discretion rather than preventing it completely. He saw it as having a negative value, acting to minimise the danger of the use of discretionary power in an arbitrary way. He set out a number of principles which came from this wider idea. They are:

• There should be clear rules and procedures for making law.
• The Independence of the judiciary must be guaranteed.
• The principles of Natural Justice should be observed, requiring open a fair hearing for all parties.
• The courts should have the power to review the way in which the other principles are implemented to ensure that they are being operated as demanded by the rule of law.

Question 26

Three main principe, of the Rule Of Law.

Answer 26

1) Separation of Powers
2) Supremacy of Parliament
3) Rule of Law

Question 27

The three types of the Separation of Powers.

Answer 27

State powers can be divided into three types known as the Montesquieu theory. These are:

1) Executive - the government forming it’s cabinet and deciding on its law making agenda.
2) Legislature - Parliament
3) Judicial - Judges

Question 28

Separation Of Power.

Answer 28

Each power is carried out by different bodies preventing abuse of power and conflict of interest. There is an overlap between the executive and the legislature in the Ministers forming the government are also elected members of parliament And are active in both law making processes. With the exception of The Lord Chancellor there is very little overlap between the judiciary and the other two arms of the state. The judiciary can therefore act as a check and ensure that the executive does not overstep it’s constitutional powers.

Question 29

Constitutional Reform Act 2005.

Answer 29

Didn’t begin operating until 2009. This act supports the Montesquieu theory within the separation of powers. The act recognised the rule of law and the importance of the independence of the judiciary separating also the House of Lords judges as law makes from the judges now sitting in the Supreme Court.
S1 the Act does not affect … The existing constitutional principle of the rule of law.
S3 The Lord Chancellor, other Ministers of the crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary.

Question 30

The Supremacy of Parliament.

Answer 30

Parliament is the highest source of law in England and Wales. Decisions made by respective parliaments do not bind other parliaments that follow them. Britain has no bill of rights that override parliament and has no law which is entrenched.
However, the supremacy of parliament has been eroded by the effect of membership of the EU and by changes to the constitution giving rights to Scottish parliament, Welsh Assembly and Northern Ireland Assembly.

Question 31

What did Dicey say?

Answer 31

“parliament has under the English Constitution, the right to make or unmake any law whatever, and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of parliament.” Dicey.

Question 32

Everyone is subject to the law.

Answer 32

However, if the government does not like the result it can usually reverse it by legislation. There are many examples of the government, through Parliament enforcing it’s will the courts have ruled against them.

Question 33

How should the law be applied?

Answer 33

The law should be applied without fear or favour, malice of ill will, or prejudice, bias or fear from others, particularly the powerful. This means there must be an independent and impartial judiciary.

Question 34

Human Rights Act 1998 implemented October 2000.

Answer 34

Although technically the European Convention of Human Rights is not superior to parliament, the effects of S3 and S4 of the HRA 1998 cannot be underestimated.
S3 requires judges to interpret laws to be compatible with human rights and S4 allows judges to declare any found cases of incompatibility. Technically both can be ignored by parliament demonstrating it’s supremacy. But S10 requires that a Minster can amend by order, rather than an Act of parliament, a law that has been found incompatible by the courts.
However there are breaches to the Rules of Law where under government direction abdication and detention of people is carried out by the state.

Question 35

Arguments for a UK written Constitution.

Answer 35

• Make things clearer.
• Accessible for citizens.
• Greater protection of rights and liberties.

Question 36

Agruments against a UK written constitution.

Answer 36

• Difficult to change.
• Unwritten constitution part of our heritage.
• Unwritten constitution allows flexibility.

Question 37

What does the main principles of the rule of law do?

Answer 37

Therefore the main principles of the rule of law ensure that all citizens are treated fairly as a result of the separation of powers between the various authorities. This includes separation of the legislature, executive and judiciary.

Question 38

Crucial aspect of judge’s independence?

Answer 38

One crucial aspect of the role of the law is that judges are meant to be strictly impartial and non-political. This is one of the basic differences between liberal democratic countries and authoritarian regimes. In the later, the courts simply become instrument of the state. In the Soviet Union, for example, judges applied what was called ‘social legality’, during the 1930s in particular. Show trials were used to expose and punish opponents of the regime. By contract, in liberal democracies, the authority of the law is linked to the fact that it is supposed to be non-political. This, in turn, is based on the assumption that the law is interpreted by judges who are independent and impartial.

Question 39

What are the concerns of Judge’s Independence?

Answer 39

On the other hand, in UK, in view of the potential political signify nice of judicial decision, the independence of judges is always a principle under pressure. Traditionally, e main concern about he effectiveness of the judicial independence focused on appointment process. While that was controlled by Prime Minister and The Lord Chancellor, and so long as The Lord Chancellor’s office fused the roles of head of the judiciary and cabinet minister, judicial independence always appeared to be a constitutional fiction. This concern has substantially been addressed through the establishment of the judicial appointment commission and the Constitutional Reform Act 2005 separating the legislative power of parliament from the judiciary by the creation of the Supreme Court replacing the House of Lords which had a dual role of both law makers and judges of law, where law lords sat in both parliament and court.
A second concern about judicial about judicial independence stems from a growing willingness of ministers publicly critics the courts. This has particularly applied in the case of successive Home Secretaries.

Question 40

Conclusion.

Answer 40

In conclusion, the constitution, in any county, has a major impact on judicial system. As a result, the distinctive UK’s constitution has had influences on judicial system also. The fact that UK’s constitution grants a lot of power to parliament is obvious. In other words, to some extent, parliament can set aside any provisions of the rule of law if it wishes. For instance, nowadays, there are debates about the invasion of Iraq which claim that the invasion was an illegal action and directly against law. Since, the membership of UK in European Union the judicial system has also been influenced by a European Treaties such as changing the highest court of appeal from House of Lords to European Court of Justice.
Although, the vagueness, in the principles of the rule of the law exists by virtue of parliamentary sovereignty, the rule of law has also achieved, to some extent, it’s goals.

Question 41

What is the definition of the law?

Answer 41

It is not easy to provide a definition of law but a number of theorists have arrived at their own interpretation of definitions of law.