The Rule of Law

Question 1

how would the Administrative Courts consider whether governmental action was lawful, in accordance with the power granted and the rights protected?

Answer 1

1. primary legislation
   - the courts cannot review but they can assess whether government has complied with provisions by an Act.
2. Delegated legislation
   - the courts can review the legality of delegation by assessing whether it has been made in accordance with the powers granted by the parent Act
3. common law and prerogative power
   - courts can assess whether the government has breached a common law
   constitutional right or has lawfully exercised a prerogative power.

Question 2

the rule of law requires that the law applies “equally to everyone”. what are the exceptions for this?

Answer 2

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

Question 3

The principle of rule of law is used by the judiciary to restrict the effect of legislation, created by Parliament, in the interests of protecting individual liberties and rights. How can this be achieved?

Answer 3

Through judicial interpretation of statutory
provisions and by using common law (and ECHR) principles of justice and fairness.

Question 4

what are Lord Bingham’s 8 elements of the the rule of law?

Answer 4

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

Question 5

Court’s control of discretionary powers

Answer 5

the court is able to regulate the use of discretionary powers by the State/ decisions and actions of the executive are reviewable by the court “at the suit of an interested citizen”

Question 6

what are the threats/ challenges to the rule of law?

Answer 6

1. unclear legislation
2. uncertain court decisions
3. automated decision-making
4. the difficulty of challenging decisions made my administrators
5. equality before the law is challenged by differences between rights of British vs non-British nationals
6. access to justice is threatened by Legal Aid cuts
7. unfair processes
8. government criticisms of judges
9. use of statutory instruments to fundamentally change laws