PUBLIC LAW L5 - Constitutional foundations of Public Law

Question 1

What did Lord Bingham define the rule of law as in his book ‘The Rule of Law’? (3)

Answer 1

The core of 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.

Question 2

What is the formal rule of law? (6)

Answer 2

1. Legal procedure must be clear and certain
2. The law must be prospective (not applicable retrospectively)
3. The law must be clear
4. It must be applied equally
5. The judiciary must be independent
6. The ‘moral’ contents of laws is not determinative of whether the rule of law can be said to exist in a given jurisdiction

Question 3

What is the substantive rule of law? (3)

Answer 3

The same formal requirements apply but a moral component is necessary - ‘without respect for fundamental human rights and freedoms, a rule of law society cannot be said to exist.’

Question 4

How does the rule of law and the doctrine of the separations of powers work together? (1)

Answer 4

The doctrine of the separations of powers is intrinsic to the rule of law, because the principle requires that the executive is prevented from exercising its power arbitrarily.

Question 5

What eight principles did Lord Bingham set out in ‘The Rule of Law’ to be the rule of law (substantive)? (8)

Answer 5

1. The law should be accessible
2. Legal issues should be ordinarily resolved through legal processes and not through the exercise of administrative discretion by the government officials.
3. The law should apply equally to all
4. The law should afford adequate protection for human rights
5. There should be access to justice in the courts without inordinate delay or expense
6. Public officials, including ministers, should exercise the powers they have been granted in good faith and within the limits of those powers
7. Legal and adjudicative processes should be fair
8. The state should comply with its obligations under international law

Question 6

What is judicial review? (1)

Answer 6

The mechanism by which the rule of law is protected - and arbitrary use of government power is prevented - in the UK.

Question 7

Can the Court review primary legislation? (1)

Answer 7

No, but they can assess whether any public body has complied with the provisions of the Act.

Question 8

What can the Courts review as part of judicial review? (2)

Answer 8

1. The legality of delegated legislation, is it in accordance with the powers granted by the Parent Act and has the government acted in accordance with the secondary legislation?
2. Whether the government has breached a common law constitutional right or has lawfully exercised a prerogative power.

Question 9

What does the rule of law act as? (1)

Answer 9

A check on executive power.

Question 10

What can be achieved through judicial interpretation? (1)

Answer 10

Restricting the effect of legislation created by Parliament, in the interests of protecting individual liberties and rights.

Question 11

What should legislation be? (2)

Answer 11

Cleary drafted and only apply to future actions.

Question 12

What was held in R v Sos Home Department ex parte simms 2000? (3)

Answer 12

Lord Hoffman observed that as part of his legality principle, that Parliament, could if it wished enact laws, which undermine rights, but the language of the legislation must be completely clear.

Question 13

Can retrospectively applicable legislation be passed? (2)

Answer 13

Yes, when Parliament wishes to legislate to overturn a decision of the courts or to put an accepted procedure on a statutory footing.

Question 14

What is an example of retrospectively applicable legislation? (1)

Answer 14

War Damage Act 1965

Question 15

What is the key case in terms of discretionary powers? (1)

Answer 15

Liversidge V Anderson 1942.

Question 16

What are the exceptions to the rule of law principle that the law applies equally to everyone? (6)

Answer 16

1. The monarch is arguably above the criminal law.
2. Judges in higher courts are immune from civil litigation for acts done within their official jurisdiction.
3. Parliamentary privilege - MPs cannot be sued for what they say in Parliament.
4. Diplomatic immunity.
5. Children are not subject to the same laws as adults.
6. Are there now more barriers to meaningful access to justice, caused by cuts to legal aid funding over the last decade or more?