Rule of Law

Question 1

What is the judiciary’s perceived role re. the rule of law?

Answer 1

Guardians of the rule of law

Question 2

Why is doctrine of the separation of powers is intrinsic to the rule of law?

Answer 2

because it means that those in government are prevented from exercising power arbitrarily.

Question 3

What are the eight fundamental principles of the rule of law as per Lord Bingham?

Answer 3

1. accessible, clear and predictable
2. legal issues resolved through legal processes and not through administrative discretion by gov officials
3. should apply equally to all
4. should afford adequate protection for human rights
5. should be access to justice in courts without inordinate delay or expense
6. should exercise powers in good faith and within limits of those powers
7. legal and adjudicative processes should be fair
8. state should comply with international law

Question 4

Key components (4) of the requirement of legality?

Answer 4

1. gov interference must be sanctioned by legal authority (entick v carrington)
2. Parliament cannot be seen to have to intended to restrict certain rights/freedoms unless made clear - legality principle (ex p simms)
3. gov bodies legal capacities will be defined and limited by legal statutory provisions
4. independence of the judiciary is essential

Question 5

Can the Administrative Court review primary legislation (Acts of Parliament)?

Answer 5

No - however the court can assess whether gov/public body has complied with provisions of an Act

Question 6

Can the Administrative Court review delegated (secondary) legislation?

Answer 6

Yes - by assessing whether it is in accordance with the powers granted by parent Act (intra vires) - can also assess whether gov has acted intra vires delegated legislation

Question 7

Can Administrative Court assess common law/prerogative power?

Answer 7

Yes - whether gov has breached common law i.e. right to protest, or has lawfully exercised prerogative power

Question 8

Relevance of R v SoS Home Department ex parte Simms [2002]?

Answer 8

Parliament can (if it wishes) enact laws which undermine fundamental rights but language of legislation must be completely clear.

Question 9

What is an important aspect of legal certainty?

Answer 9

Legislation should apply to future actions not retrospectively to past actions

Question 10

Can Parliament enact retrospectively applicable legislation?

Answer 10

Yes - it’s constitutionally entitled to do so - what matters is not that the law changes; it is the impact of the new law on the person who acted under the old law that is significant.

Question 11

Examples of retrospective legislation?

Answer 11

War Damage Act 1965
War Crimes Act 1991
Jobseekers (Back to Work Schemes) Act 2013

Question 12

Relevance of R v Somerset County Council, ex parte Fewings [1995]?

Answer 12

Local Gov Act 1972 - councils could manage common land. Deer hunting case.
Public authorities must act within powers given by legislation. Council decided to ban deer hunting for moral reasons. Court ruled this ban was not granted to council under Act - only if it was needed to manage deer herd, for example.

Question 13

Relevance of Liversidge v Anderson [1942]?

Answer 13

Judicial attitude - whether home secretary had power to imprison any person under ‘reasonable cause to believe hostile intentions’ under Defence Regulations.
Famous Lord Atkin minority opinion - ‘more executive minded than the executive’ was held that executive could do this - during war.

Question 14

Relevance of Inland Revenue Commissioners v Rossminster Ltd [1980]?

Answer 14

Tax authorities (IRC) to enter premises and seize documents under 'reasonable grounds' 
Contrast to CoA, HoL found actions not unlawful - HOWEVER found use of 'reasonable cause to believe' was question of objective test to be tried of evidence, and noted Liversidge judgment excusably wrong.

Question 15

Relevance of Padfield v Minister of Agriculture, Fisheries and Food [1968]?

Answer 15

Milk prices case.
HoL held minister’s discretion (to appoint committee to investigate complaints about milk prices) not unfettered. Had acted unlawfully by taking into account legally irrelevant factors.

Question 16

In what way can a minister’s exercise of discretion be lawful? What is this principle called?

Answer 16

It must not frustrate the policy or purpose of the statute which contains the discretionary power - Padfield principle.

Question 17

What’s an important feature of the rule of law (discretion)? What is this constrained by (3)?

Answer 17

Judicial discretion is exercised rationally and consistently. 
Constrained by: 
- sentencing guidelines
- previous sentences pass
- D's right of appeal

Question 18

In Gouriet v Union of Post Office Workers [1977] Lord Denning famously quoted Thomas Fuller, saying ‘be you ever so high, the law is above you’.
Generally this is true: what are the few exceptions?

Answer 18

• The monarch is, arguably, above the law.
• Judges in higher courts are immune from civil litigation for acts done within their official jurisdiction.
• Parliamentary privilege.
• Diplomatic immunity.
• Children are not subject to the same laws as adults.

Question 19

Was is meant by unclear and inaccessible legislation?

Answer 19

Badly drafted legislation and unreliable sources; legislation.gov.uk is not kept up to date

Question 20

Do dissenting judgments undermine the rule of law?

Answer 20

No if the principle of law is laid down and the majority judgment is clear - but this is not always so…

Question 21

What is meant by administrative discretion?

Answer 21

It’s given to Parliament via legislation - administrators are charged with the duty of running society. Some issues include whether some of these decisions can be challenged by the people affected, i.e. the homeless etc.

Question 22

What does Lord Bingham note re. equality before the law?

Answer 22

The differentiation must be relevant to the distinction.

Question 23

Example of inequality of application?

Answer 23

Police/customs officer need not have any grounds for suspecting the person has any involvement in terrorism - can be detained and searched. Research suggests Asian passengers 42 times more likely.

Question 24

How are the ECHR rights UK law?

Answer 24

Have been incorporated into domestic system by s 1 HRA.

- Whilst HRA codifies them, they are longstanding common law rights.

Question 25

What’s the most obvious barrier to obtaining justice?

Answer 25

Access to legal fees, and no pro bono - cuts to gov legal aid have made it increasingly difficult.

Question 26

Relevance of R (Unison) v Lord Chancellor? [2017]

Answer 26

Employment Tribunals and Employment Appeal Tribunal Fees Order 2013 unlawful.
Supreme Court reiterated that constitutional right of access to the courts was inherent in the rule of law.

Question 27

What has Liberty identified as significant threats to the right to a fair trial? (3)

Answer 27

• ‘fast-track’ extradition treaties - prevents courts from considering evidence
• line between criminal and civil - ASBOs and other civil orders
• ‘closed material procedure’ - one party can present sensitive material without other examining

Question 28

Example of non-compliance with international law?

Answer 28

June 2018 - Joint Intelligence and Security Committee (JISC) identified instances of government complicity in the unlawful treatment of detainees in its ‘Report on Detainee Mistreatment and Rendition’

Question 29

Example of gov criticism of judges?

Answer 29

Miller (No.2): PM ‘profoundly disagrees’ with judges decision - detrimental to rule of law for gov officials to express views outside constitutional remit

Question 30

Example of challenge to rule of law in context of Brexit?

Answer 30

Oct 2019 gov withdrew SI which empowered officials to amend VAT on customs by notice NOT by law… likened to Henry VIII powers
Also post-Brexit algorithm LTR applications (not confirmed but possible - how can they appeal)

Question 31

Principle in Entick concerns the requirement of legality: what two mechanisms does the separation of powers underpin for that restraint?

Answer 31

1. control by parliament - deciding what proposals become law
2. restraint by the courts - executive’s ‘ultra vires’ actions restrained by judicial review (Jackson)

Question 32

Can you seek redress in a UK court if your ECHR rights have been breached?

Answer 32

Yes - the court should attempt to interpret UK law in a way compatible with Convention rights

Question 33

What needs to be considered to understand if Convention rights are protected in UK constitution? (2)

Answer 33

1. absolute or qualified Convention right

2. how rights of individuals are weighed against interests of society as a whole

Question 34

What is the ECHR concept of proportionality?

Answer 34

Sometimes the state can interfere with qualified rights if:

1. legitimate aim
2. restriction is prescribed by law
3. necessary in a democratic society (requires restriction to correspond to pressing social need and proportionate to aim pursued)

Question 35

Relevance of Sunday Times v UK [1979] ECHR

Answer 35

Thalidomide case
Demonstrates how proportionality principle is applied:
UK gov applied for order for Sunday Times to stop publishing investigation of tragedy. UK court made the order, but ECtHR decided freedom of expression infringed due to no greater ‘pressing social need’

Question 36

Example of ‘derogation’ from Convention rights?

Answer 36

art 15 ECHR: time of war

Question 37

A & Others v Secretary of State for Home Dept [2004]?

Answer 37

Case concerned UK gov’s derogation under art 15 ECHR of the art 5(1) ‘right to personal liberty’ - detention of foreign nationals suspected of terrorism.
Judgment from HoL?
1. public emergency = political decision: great weight to gov re. competence to make decision (Lord Hoffman dissent)
2. however; not proportional (only targeted non-nationals): also unjustifiably discriminatory (Art 14)

Question 38

In what case does Laws LJ broadly define constitutional statute?

Answer 38

Thoburn v Sunderland City Council [2003]:
‘conditioned the legal relationship between the citizen and state in some general, overarching manner, or enlarged or diminished the scope of what were regarded as fundamental, constitutional rights’.

Question 39

What is the doctrine of ‘implied repeal’? Can constitutional statutes be ‘repealed’?

Answer 39

The doctrine of ‘implied repeal’ is that a new statute, which is inconsistent with an existing statute, will automatically supersede the existing law without there needing to be an explicit provision to that effect.
NO: constitutional doctrines may be repealed, but only by “express words in a later statute or by words so specific that the inference of an actual determination [by Parliament] was irresistible. (see H v lord Advocate [2012] re Scotland Act 1998 being altered…)
Note: can act as a restriction on executive power.

Question 40

What’s the case re. common law constitutionalism?

Answer 40

Kennedy v The Charity Commission [2014]