Rule of law Flashcards
(34 cards)
What does it mean for a public body to act ultra vires?
If a public body has acted in a way that is not within its statutory power, it is considered to be acting ultra vires, which means outside its legal authority.
What does the law allow in terms of deportation?
The law allows a non-British national with no right of abode in the UK to be deported. However, it does not allow a British national to be deported.
What is the ‘rule of law’ and why is it important?
The ‘rule of law’ is a broad concept that is fundamental to an understanding of public law principles. It refers to the idea that all persons and authorities within the state should be bound by and entitled to the benefit of laws publicly made, taking effect in the future and publicly administered in the courts. The rule of law is important because it ensures that those in government are prevented from exercising power arbitrarily.
How can the courts review the legality of delegated legislation?
The courts can review the legality of delegated legislation by assessing whether it has been made in accordance with the powers granted by the parent Act (intra vires). They can also assess whether the government has acted in accordance with the delegated legislation.
What was the differentiation in the case of A & Others and why was it considered incompatible with the rule of law?
In the case of A & Others, it was considered incompatible with the rule of law to allow non-nationals suspected of international terrorism to be detained indefinitely without charge, while not applying the same restriction to nationals suspected of the same conduct. The distinction between national and non-national was deemed irrelevant given the recognized involvement of UK nationals in terrorism.
What is the principle of legal certainty in the rule of law?
Legal certainty is a fundamental feature of the rule of law. It means that laws should be clearly set out and expressed, so that citizens can understand the rules operating in society and know what they can and cannot do.
What were the criteria that needed to be met for the government to derogate from the right to personal liberty?
In accordance with Article 15 ECHR, the Home Office had to show both that there was a “public emergency threatening the life of the nation” and that the measures taken were “strictly required”; in other words, they represented a proportionate response to the aim behind the policy.
What is Schedule 7 of the Terrorism Act 2000 and what powers does it grant?
Schedule 7 of the Terrorism Act 2000 grants broad and intrusive powers to stop, search, and hold individuals at ports, airports, and international rail stations. Under Schedule 7, an individual may be detained and questioned for up to nine hours, searched, and have their belongings retained for up to seven days. They do not have the right to free legal representation while detained at the port or border.
How has the ‘rule of law’ been referenced in UK legislation?
In the UK, the ‘rule of law’ has become a more significant and constitutionally important concept in recent years. It is directly referenced as a ‘constitutional principle’ in section 1 of the Constitutional Reform Act 2005. However, the Act does not provide a specific definition of the ‘rule of law’, leaving it to the judges to interpret the term in individual cases.
What is the ‘Padfield principle’?
The ‘Padfield principle’ refers to the requirement that the exercise of discretion must not frustrate the policy or purpose of the statute which contains the discretionary power. Failure to exercise discretion at all, if it is granted by statute, is also potentially unlawful.
What are the ‘formal’ and ‘substantive’ schools of thought regarding the ‘rule of law’?
In academic discourse, there are two basic perspectives on the ‘rule of law’: ‘formal’ and ‘substantive’. The ‘formal’ perspective, advocated by Professor Joseph Raz, emphasizes that legal procedure must be clear, certain, and prospective. The ‘substantive’ perspective, advocated by Ronald Dworkin, adds that respect for fundamental human rights and freedoms is essential for the ‘rule of law’ to exist.
What is the importance of judicial discretion in the rule of law?
Judicial discretion is an important feature of the rule of law. It should be exercised rationally and consistently, ensuring that no discretion is unconstrained and potentially arbitrary. Discretionary powers must be exercised within the law to prevent an arbitrary use of such powers.
What is the significance of retrospective legislation?
Retrospective legislation is sometimes passed when Parliament wants to overturn a court decision or put an accepted procedure on a statutory footing. The impact of the new law on a person who acted under the old law is what matters, rather than the fact that the law changes. Examples of retrospective legislation include the War Damage Act 1965 and the Jobseekers (Back to Work Schemes) Act 2013.
What is the relationship between the ‘rule of law’ and the separation of powers?
The ‘rule of law’ and the separation of powers have a very important relationship. The doctrine of the separation of powers is intrinsic to the ‘rule of law’ because it prevents those in government from exercising power arbitrarily. It ensures clear distinctions between the judiciary, the executive, and Parliament, preventing the concentration of power in one branch of government.
What are the challenges to the rule of law in the UK?
The challenges to the rule of law in the UK include unclear and inaccessible legislation, unreliable sources of legislation, uncertain judicial decisions, and administrative discretion. These challenges can undermine the accessibility, clarity, predictability, and fairness of the law.
What does equality before the law mean in the context of the rule of law?
Equality before the law means that the law should apply equally to everyone as far as possible. No one, no matter how powerful, is above the law. However, there are some exceptions such as the monarch, judges in higher courts, parliamentary privilege, and diplomatic immunity.
What is the main source of human rights law in the UK?
The European Convention on Human Rights (ECHR) is the main source of human rights law in the UK. The Convention rights are part of UK law, largely incorporated into the domestic legal system by the Human Rights Act 1998 (HRA).
What are some key characteristics of the ‘rule of law’ according to Lord Bingham?
According to Lord Bingham, the ‘rule of law’ should have the following characteristics: accessibility, clarity, predictability, resolution of legal issues through legal processes, equal application of the law, adequate protection for human rights, access to justice without delay or expense, exercise of governmental powers in good faith and within limits, fairness in legal and adjudicative processes, and compliance with international law.
What is the requirement of legality in relation to the ‘rule of law’?
The requirement of legality means that the government must respect and act within the confines of the law. This includes obtaining legal authority for any interference with persons or property, interpreting statutes in a way that does not restrict important rights and freedoms unless clearly intended by Parliament, and exercising governmental powers within the limits set by law. The independence of the judiciary plays a crucial role in ensuring the lawful exercise of government power.
What are Lord Bingham’s eight elements of the rule of law?
Lord Bingham’s eight elements of the rule of law are: 1) The law should be accessible, clear, and predictable. 2) Legal issues should ordinarily be resolved through legal processes and not through the exercise of administrative discretion by 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.
How does the rule of law relate to parliamentary sovereignty?
The rule of law operates as a check on executive power by requiring that the executive acts only on the basis of lawful authority granted by Parliament. The separation of powers allows the judiciary to be independent and objectively review the legality of executive actions. However, statutory law made by Parliament can override common law, and parliamentary supremacy is a fundamental condition of the rule of law in the UK constitution.
What was the House of Lords’ decision in Liversidge v Anderson?
In Liversidge v Anderson, the majority of the House of Lords held that the Home Secretary had the power to imprison any person if he had ‘reasonable cause to believe’ that such a person had ‘hostile intentions’. The majority accepted the Home Secretary’s interpretation of the regulation, which did not require an objective factual standard.
What was Lord Atkin’s dissenting opinion in Liversidge v Anderson?
Lord Atkin disagreed with the majority and argued that the power to imprison should have an objective requirement. He believed that the word ‘reasonable’ in the regulation implied the existence of facts or a state of facts, and therefore, the Home Secretary needed to show some evidence for his justification.
What is judicial review and how does it protect the ‘rule of law’?
Judicial review is the mechanism by which the ‘rule of law’ is protected in the UK constitution. It allows the Administrative Courts to assess the lawfulness of governmental actions, ensuring they comply with the powers granted and the rights protected by primary legislation. Judicial review ensures that government power is not exercised arbitrarily and that the courts can determine whether it has been exercised within the confines of the law.
