Public Law Flashcards

Workshop 1 - What is the United Kingdom?

The 'United Kingdom' did not exist in law until the Acts of Union of 1800, which unified the Kingdom of Great Britain (England, Wales and Scotland) with the Kingdom of Ireland. Prior to this date, the two kingdoms were in 'personal union', i.e. they had the same monarch, but their boundaries, laws and interests remained distinct. Since 1922, the United Kingdom ("UK") has consisted of England, Wales, Scotland and Northern Ireland.

What is a constitution?

'A code of rules which aspire to regulate the allocation of functions, powers and duties among the various agencies and officers of government and defines the relationship between these and the public.' (Vernon Bogdanor, Constitutions in Democratic Politics (1988)).

What is a fundamental principle of the functioning constitutional democracy?

the 'separation of powers', that is a system of checks and balances which prevent a single organisation of the state becoming too powerful.

Three bodies of state?

· Parliament (legislature)

· Executive

· Judiciary

Attempts at destroying the monarchy?

The earliest was the signing of the Magna Carta in 1215, often referred to as the first and fundamental constitutional document of the country, which sought to establish that the monarch was not above the law.

How did courts in 17th century try to promote destroying the monarchy?

In the Case of Proclamations [1610], the court tried to establish that the Monarch could only make new laws through Parliament. Two essential principles were stated, which continue to be cited in legal argument about the limits of government power:

• "...the King […] cannot change any part of the common law, or statute law, or customs of the realm“, and:

• "the King hath no prerogative [power] but that which the law of the land allows him".

How has our constitution evolved?

The key constitutional turning point, after a highly volatile period in the middle of the 17th century, came with the so-called Glorious Revolution of 1688

what is a constitution?

"That set of rules which directly or indirectly affect the distribution and exercise of sovereign power in the state." Definition given by Professor Albert Venn Dicey, a constitutional theorist and author of the 'Introduction to the Study of the Law of the Constitution' (1885)

What is the glorious revolution?

It involved the overthrow of the Catholic King James II, who was replaced by his Protestant daughter Mary and her Dutch husband, William of Orange. The revolution arose from James II’s attempts to expand freedom of worship for Catholics in opposition to the desires of the Protestant majority. The Glorious Revolution resulted in the English Bill of Rights that established England as a constitutional rather than absolute monarchy and served as the model for the U.S. Bill of Rights

importance of bill of rights in 1689?

It is a landmark Act which affirmed the principles in Magna Carta, limited royal power, and reaffirmed certain civil rightsAfter this point a monarch was never again able to overrule an Act of Parliament.

What is the Act of Settlement?

Parliament passed the Act of Settlement in 1700, which created an independent, salaried judiciary.

Role of the monarch?

The King has no personal power to raise taxes, nor any influence as to how they are spent, nor any direct involvement in the government of the UK. However, the activities of government are still carried out in the name of the monarch. This is why the Executive (the government) is interchangeably referred to as 'the Crown'.

Monarch’s remaining powers which are limited by constitution?

-          Appointing the Prime Minister

-       Dissolving Parliament in some circumstances

-          Giving 'Royal Assent' to Acts of Parliament

“law-making power of Parliament is described as being vested” - what is vested?

'King-in-Parliament'

what is the royal prerogative?

Refers to the powers that are theoretically and nominally invested in the monarch, and do not require the consent of Parliament to use. The monarch does not act on his own initiative, but only on the advice of the Prime Minister or other senior government ministers.

powers include:

• summon and progue parliament

• issue passports

• mobilise armed forces.

Structure of UK government?

The King is the Head of State:

• His approval (“assent”) is required to Acts of Parliament and so he has a place in the legislature

• The other two bodies of state are the Executive (whose membership partially overlaps that of Parliament)

• And the judiciary, which is independent from both other bodies

Sovereign power definition

Today, it can still be used to refer to the monarch ("the Sovereign") but is also understood to mean the power of government overall, through its various agencies.

How are functions of state divided?

· The legislature

· The executive

· The judiciary

What is the legislature?

The body that enacts new law, and repeals or amends existing law. In the UK, this function is said to be carried out by 'the King in Parliament'. In practice, this means the House of Commons and the House of Lords; the King's role is limited to granting 'royal assent' to new laws.

What is the executive?

Body which formulate and implement policy. In the UK, the executive consists of the Prime Minister and Cabinet, the various government departments (ministries), a politically neutral civil service, and other bodies carrying out government functions at the local level, e.g., city, county and district councils

What is the judiciary?

This is the body of judges of all levels of seniority, who are responsible for the enforcement of criminal and civil law and the adjudication of disputes between individuals, as well as between individuals and the state.

Can you say the UK has no written constitution?

No, a more accurate statement is that the constitution of the UK is "uncodified" in a single document.

Where do constitutional rules come from?

· Legislation

· Case law

· Constitutional conventions

Acts of Parliament are the primary source of constitutional law in the UK. However, not all Acts of Parliament are constitutional – this classification depends on the subject matter of the legislation.

Laws LJ in Thoburn v Sunderland City Council [2002] stated:

"we should recognise a hierarchy of Acts of Parliament: as it were "ordinary" statutes and "constitutional" statutes […] in my opinion a constitutional statute is one which (a) conditions the legal relationship between the citizen and the state in some general, overarching manner and (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights”

What is entick v carrington (1765)?

Entick who was suspected of writing seditious (anti-government) pamphlets, had his property searched by agents of the King "with force and arms". Entick sued the agents for trespass. The agents' defence was that they acted on the authority of a warrant from Lord Halifax, one of the King's Ministers. The trial judge was Lord Camden, Chief Justice of the Common Pleas, who found for Entick, holding that Lord Halifax had no right under statute or precedent to issue a search warrant.

What are constitutional conventions?

Conventions are rules about the conduct of government which fall short of being enforceable laws but are still agreed upon and should be respected.

Conventions are generally:

- Informal rules of political practice.

- Developed in an evolutionary way, according to the political standards of the time.

- Without any clear source in legislation or case law.

Purpose of constitutional rules?

The purpose of a constitution (whether codified or uncodified) is to regulate – and so make as predictable as possible – the exercise of power by the state. Predictability is essential for the stable, peaceful and fair functioning of society.The idea of 'constitutionalism' contains these broad principles :

- Exercise of government power must be within legal limits, and government must be accountable in law.

- Power is dispersed between the organisations of the state, so power does not become concentrated in one body.

- The government is accountable to the people.

- The fundamental rights and freedoms of citizens are protected

Key facts regarding judiciary, legislative and executive?

The judiciary is responsible for how statute is interpreted.

The executive is responsible for the running of government and the creation and implementation of policy

The legislature is the supreme law-making body in the UK

Facts regarding UK constitution?

• The UK constitution is unentrenched

• reliant on conventions

• flexible

• proportion of rules are unwritten

Constitutional definition by Cabinet Manual 2011?

"rules of constitutional practice that are regarded as binding in operation but not in law"

What is a cabinet manual?

A 'guide to laws, conventions and rules on the operation of government'. It sets out in detail how the executive should operate

Functions of conventions?

Conventions are a flexible way of 'filling in the gaps' and developing constitutional rules informally, without recourse to the law.

Conventions tend to arise naturally over the course of time as a form of understanding about how it is constitutionally appropriate to behave in political life. they adapt with time and can develop with societal change?

Conventions relating to legislature?

• The House of Lords should defer to the House of Commons.

• House of Lords should not reject at second reading any government legislation that has been passed by the House of Commons which carries out a manifesto commitment. This is known as the Salisbury-Addison convention.

• Financial bills should only be introduced by Cabinet Minister in HOC

• Following the parliamentary vote on military engagement in Syria in 2013, (building on the 2003 vote in relation to war in Iraq), it is arguable that a new convention has emerged: that the House of Commons should be consulted before the government embarks on any major foreign policy initiatives involving the use of armed forces.

• The Westminster Parliament will not normally legislate with regard to devolved matters in Scotland, Wales or Northern Ireland without the consent of the devolved administration (the Sewel Convention).

Conventions relating to executive?

• monarch acts in accordance with the advice given by his Ministers (e.g. with regard to proroguing Parliament).

• The monarch will not exercise his strict legal right to refuse royal assent to bills passed through Parliament.

• The monarch will appoint as Prime Minister the leader of the political party which is able to command the confidence of the House of Commons

• The Prime Minister chooses the Cabinet Ministers

• The Prime Minister and the Chancellor of the Exchequer should be MPs

what are the two types of ministerial responsibility?

Collective and individual

What is collective ministerial responsibility?

Collective ministerial responsibility (‘CMR’) and Individual ministerial responsibility (‘IMR’)

CMR relates to the way in which government ministers should behave and operate as a collective whole. It has three components:

• Discussions between ministers (notably in Cabinet) should remain confidential

• Once a policy line has been reached by ministers, all ministers must stick to it and maintain a united front (‘unanimity’). If they do not feel able to, as a matter of conscience, they should resign as a minister. Examples of politicians doing this include: Robin Cook (over war in Iraq, 2003); Boris Johnson and David Davies (over Theresa May’s “Chequers agreement” in 2018)

• The purpose of the united front is so that Parliament has confidence in the government. If it loses that, and Parliament passes a ‘vote of no confidence’, the government should resign. The last time this happened was 1979 (James Callaghan).

What is an individual ministerial responsibility

IMR is intended to regulate how ministers should react if there has been a significant problem or failing in their department. However, after the notable post-war expansion in government, this became less realistic and appropriate and a distinction has increasingly been made, based on:

• The degree to which the minister was personally aware of / involved in / responsible for the mistake or failing a key point made in the Maxwell-Fyfe guidelines after the Crichel Down affair in 1954

• Whether the failing was an operational one (considered to be the fault of civil servants or other government agency involved) or a policy one. Ministers therefore ought to resign if there has been a significant policy failing but this convention is very much impacted by short-term political considerations.

What conventions relate to judiciary?

Judges must not be politically active (in addition to offending convention, this would risk the appearance of judicial bias and undermine the parties' right to a fair trial).

Parliament must not criticise the professional conduct of judges.

Conflict between convention and law?

Where there is a conflict between the law and a convention, the law will prevail. Although the Courts cannot enforce conventions, there may be political consequences for breach.

R (Miller) v Secretary of State for Exiting the EU [2017] details

the Supreme Court rejected the argument that the government was legally bound to seek the consent of the Scottish Parliament before triggering Article 50 (and so the UK's exit from the EU). This argument was based on the fact that the Sewel Convention has, since 2016, been specifically referred to in s. 28(8) of the Scotland Act. However, the Supreme Court decided that s. 28(8) functioned as an acknowledgement of the convention; it did not create a new rule with any legal force.

Key facts for conventions

• Conventions fill in the gaps of the UK’s sparse legal constitutional framework

• Conventions regulate the relationship between different bodies of state and those within the different parts of Parliament

• Conventions modify the effect of some strict legal constitutional rules

• Conventions create standards of accountability within government

how is power in UK divided?

executive ('government'); the legislature (Parliament); and the judiciary (Courts and Tribunals

Key functions of parliament?

• debate and scrutinise legislation

• propose amendments to legislation

• extract info from executive and hold to account its policies

• scrutinise public expenditure

responsibility of house of common

Responsible for making decisions on public finances, for example legislation which changes tax law, or introduces new taxes.

What is the type of primary legislation, what is required?

Bills

require approval by the House of Lords before the Sovereign gives 'royal assent' and the Bills become Acts of Parliament

Importance of Constitutional Reform Act of 2005?

It was designed to address concerns that the separation of powers between the judiciary and the other two bodies of state was blurred.

Role off an executive

• at the apex, the monarch

• prime minister and cabinet

• above head government departments

Where does the government retrieve its power from?

statute and common law

How does delegation of power work?

• Powers which have been granted by Parliament to a particular minister should, in principle, be exercised by that minister

• To ensure effectiveness, a power granted to a minister (usually by legislation) can be lawfully exercised by a government official (civil servant) working in the same department

Limit of power on the executive?

Government can only act if it is expressly authorised, either by statute or common law, to do so. If the government acts in excess of the powers it is given, the Administrative Court will intervene – not of its own accord, but if a claim is started against the government.

Role of the judiciary?

• In the case of the Administrative Court, to determine whether the government has lawfully exercised its powers.

• Determine the outcome of legal disputes between individuals

• decide the appropriate punishment in criminal cases

what changes did the constitutional reform bring?

• Reform of the office of the Lord Chancellor, so that judicial functions have largely been taken over by the Lord Chief Justice. (The Lord Chancellor now has no direct judicial role – he or she is an MP and a government minister.)

• Establishment of the Supreme Court as the highest appeal court in the land in 2009, with the ending of the House of Lords' judicial function (the old 'law lords').

• Creation of the Judicial Appointments Commission for the appointment of judges. Prior to this, the King had appointed judges on the 'advice' of the Lord Chancellor.

Why is the supreme court considered the guardian of the UK?

In a speech given on 9 November 2016, President of Supreme Court, Lady Hale, said that: "we [the Supreme Court] have definitely become the guardians of the United Kingdom constitution". She provided that:

• the Justices rule on validity of laws passed by the devolved legislature in Scotland, Wales and Northern Ireland.

• restrict government to exercise of powers within the limits that parliament has set: "this is nothing new. The higher courts have been doing this for centuries […] in this we see ourselves as servants of the sovereign legislature”

• They “protect the fundamental rights of individuals against encroachment by the State".

What are the constitutional fundamentals?

Rule of law

Separation of powers: executive, legislature, judiciary

Parliamentary Sovereignty: Parliament

What is a sewel convention?

UK parliament will not normally legislate on a devolved matter without the relevant devolved institution having passed a legislative consent motion

What is the reason for the convention that judges should not be politically active?

The appearance of judicial bias is avoided

Workshop 2 - What did Aristotle state in regard to the three branches?

'There are three elements in each constitution in respect of which every serious lawgiver must look for what is advantageous to it; if these are well arranged, the constitution is bound to be well arranged... The three are, first, the deliberative, which discusses everything of common importance; second, the officials; and third, the judicial element.'

Aristotle, The Politics (384-322 B.C.)

What did Montesquieu during the 18th century believe?

He believed that liberty would be best protected in a state if there was a separation of powers into judicial, executive and legislative branches

What are the separation of powers?

theory or an ideal. The theory is central to the question of whether or not an act of the executive is unlawful (going beyond its proper power), and also to the question of whether the courts should interfere in the decisions of the executive via the mechanism of judicial review

The role of the three organs in making law?

The Executive:Government proposes primary legislation to be considered by Parliament and drafts secondary legislation.

The Legislature: Parliament decides whether executive proposals become law. Individual MPs can also propose primary legislation (via Private Members' bills).

The Judiciary: interprets Parliament's intentions in making legislation and develops the common law (legal principles not found in legislation).

key case of Shaw v Director of Public Prosecutions [1962]

Shaw wanted to publish a directory of prostitutes and their services. He was advised that publication of the directory would not amount to a criminal offence. Nevertheless, a conviction of 'conspiracy to corrupt public morals' was upheld (even though there was no such statutory offence, and such a conviction was unprecedented). The House of Lords held that courts had 'residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the state'.

Case of Malone v Metropolitan Police Commissioner **[1979]

Malone was charged with handling stolen property. The prosecution admitted that there had been interception of Malone's telephone conversations on the Secretary of State's authority. Malone sought declarations against the Metropolitan Police Commissioner ('MPC') to the effect that the police conduct was unlawful. Court found for MPC for:

• no prohibition of telephone interception in English law

• no right to privacy in english law

Case of Gillick v West Norfolk Health Authority [1986]?

Two key points were introduced in judicial law making:

• judges in senior courts make decisions in explicit of stat or common law

• common law develops with modern day

he court was asked to rule on the question of whether children under the age of sixteen could lawfully be given contraception, without the knowledge of their parents. The House of Lords decided that in some circumstances they could, if the minor was competent to consent to medical treatment, (referred to since as 'Gillick competence'). There was no prior authority on the point. It was suggested that this was due to that fact that in previous eras, it would have been self-evident that parental authority was required, and the question would not have arisen.

Case of R v R [1992] 

.The judgment contained a comprehensive review of the authorities on the marital exception to the crime of rape and considered whether a change of the apparent common law position was appropriate, in the absence of clear legislation by Parliament

Case of Burmah Oil Company (Burma Trading) Ltd?

It is important to bear in mind that Parliament can 'make or unmake any law whatever' (in the words of Professor A.V. Dicey). This is what happened following the case of Burmah Oil Company (Burma Trading) Ltd. Oil fields in Burma were destroyed by British forces during the Second World War. The law lords decided that compensation should be paid to Burmah Oil, on the basis that the destruction was equivalent to an act of requisitioning in wartime, for which compensation is payable. Following this judgment, Parliament passed the War Damage Act 1965, which exempted the Crown from paying compensation for property damage or destruction in war.

Why is parliament seen to create a fusion of powers rather than a creation?

In our parliamentary system, the legislature selects and contains the political part of the executive branch, which is then ultimately dependent on the legislature for its position and power.

· Senior government ministers are, by convention, also Members of Parliament.

· Parliament, through the enactment of primary legislation, confers power on the government.

It is also the case that the executive carries out what are recognisably legislative functions under the authority of primary legislation (Acts of Parliament). This is done by creating secondary (also called subordinate, or delegated) legislation in the form of rules, orders and regulations.

There are three 'levels of delegation' which determine the level of scrutiny given to delegated legislation. What are they?

No scrutiny: Some delegated powers receive no parliamentary scrutiny, for example an order to close a major road while it is being developed

Negative instruments: can become law without a debate or vote in Parliament. They can be opposed and, in theory, rejected but not amended by Parliament.

Positive instruments: The most important delegations of power are subject to affirmative resolution. They cannot come into effect until both Houses have approved a draft SI in a vote. Every delegated or subordinate power must be exercised within (otherwise known as 'intra vires') the power granted. Usually (but not always) the power is granted by primary legislation.

Judicial similarities between the three organs?

Although overlap between the executive and the judiciary is much more limited than the overlap between the executive and the legislature, it is important to note that in addition to the judicial function performed by judges in the courts, certain aspects of the judicial role can, and have been, exercised by members of the executive, most notably in the past by the Home Secretary. This power derived from both statutory and prerogative sources

what happened following Tribunals, Courts and Enforcement Act 2007?

Tribunals are now administered as part of the court system with a new supervisory body known as the Upper Tribunal.

Role of attorney general

sits in Cabinet as the chief legal adviser to the government. He or she also has a role in deciding whether to bring a prosecution in individual cases.

Role of Lord Chancellor?

Lord Chancellor is the government minister with responsibility for the administration of justice, including the administration of the court system. Historically, this office carried a very wide portfolio of responsibilities. Under the Constitutional Reform Act 2005, the role was reorganised to remove overlaps with the office’s legislative and judicial functions. In particular, in 2006 the Lord Chancellor ceased to be the Speaker or President of the House of Lords and the head of the Judiciary in England and Wales.

Role of independent judiciary?

Judiciary to be insulated from political influence, it must be independent from government. The UK judiciary has effectively been independent from the executive since the Act of Settlement in 1701, which confirmed that judges could not be removed from their posts by the government “during good behaviour”.

The Constitutional Reform Act 2005 (“CRA”) was a piece of legislation which brought about a number of significant institutional changes. what changes specifically?

• separation of government and judiciary

• creation of supreme court

• reform of judicial appointments

The Act of Settlement 1701

Act originally provided for judicial security of tenure. This is an important factor because it protects judges from politically motivated dismissal by the executive

What is the House of Commons Disqualification Act 1975?

Full-time judges are disqualified from sitting in the House of Commons

Are judges immune to civil action?

Judges are immune from legal proceedings for actions that would otherwise be tortious (for example defamation), as long as the action is done in a judicial capacity in a court of justice. For example, a judge would not be immune when commenting to the media

Use of judicial review?

• prevent abuse of power by executive

• uphold individual rights

The fundamental point to understand at this stage is that judicial review examines the legality of a decision

Do Judges have the power to scrutinise proceedings in Parliament or 'review' primary legislation

No but with the exceptions of:

• here the Act was inconsistent with European Union law or is with retained EU law

• If the Act of Parliament is incompatible with the European Convention on Human Rights, the court may make a declaration to that effect pursuant to the Human Rights Act 1998

Where does judicial review occur?

Claims for judicial review begin in the Administrative Court. This is a specialist court within the King’s Bench Division of the High Court of Justice.

What courts can squash secondary legislation?

Administrative Court and the higher appeal courts are able to quash secondary legislation if it does not have the necessary legal authority.

When can the UK be traced back to?

United Kingdom can be traced back to 1707, the date of political union between England and Scotland to form 'Great Britain'. In 1801 the Acts of Union joined the Kingdom of Ireland to England, Wales and Scotland, creating 'the United Kingdom of Great Britain and Ireland'

What is devolution?

'Devolution' refers to the grant, by the Parliament of the United Kingdom, of legislative powers to the 'devolved' legislatures

The Northern Ireland Assembly and the Northern Ireland Executive

Scottish Parliament and Government

National Assembly for Wales and Welsh Government.

What is devolved legislation?

Devolved legislation is the legislation produced by the three devolved Parliaments or Assemblies of Scotland, Wales and N. Ireland

What is a devolved matter?

Devolved matters are the areas of government where decision-making has been delegated by the UK Parliament to a devolved administration

Process of devolution?

The process of devolution is designed to decentralise government power, and bring it closer to the people governed, so that local factors are better understood and given more prominence in decision-making

Responsibility for fiscal policy and public expenditure?

For the whole of the United Kingdom belongs to HM Treasury, i.e. central government at Westminster

What is the memorandum of understanding?

It is between the United Kingdom Government, the Scottish Ministers, the Welsh Ministers, and the Northern Ireland Executive Committee contains a series of non-legally binding principles which underlie relations between the administration.

In order to provide some central co-ordination of the overall relationship between Westminster and the devolved administrations, a Joint Ministerial Committee was established.

• To consider non-devolved matters which impinge on devolved responsibilities, and vice versa.

• To discuss the respective treatment of devolved matters within their administrations

• To keep the arrangements for liaison between the UK government and devolved administrations under review.

• To consider disputes between the administrations

Devolution rule in Scotland?

The general rule is that Acts of (the UK) Parliament extend to Scotland only if they deal with non-devolved or "reserved" matters, such as immigration. Under s. 28(7) of the Scotland Act 1998 (SA), it is explicitly stated that the power of the Scottish Parliament to pass Acts: "does not affect the power of the Parliament of the United Kingdom to make laws for Scotland".

Devolution in Wales?

The Wales Act 2017 extended the powers devolved to Wales under the Government of Wales Act 2006 (GOWA). Like Scotland, Welsh government is now based on a 'reserved matters' model. Matters reserved to the UK Government are now listed in Schedule 7A to the Government of Wales Act 2006. The Sewel Convention is also reflected in the GOWA (s.107(6)). The consent of the Welsh Assembly is sought by way of Legislative Consent Motion and the Sewel Convention applies

Devolution of Northern Ireland?

The devolved institutions of government in Northern Ireland were constituted by the Northern Ireland Act 1998. The Northern Ireland Assembly is the devolved legislature. It is a unicameral body of 90 members who are democratically elected. It is often referred to as 'Stormont', because it sits in Parliament Buildings at Stormont in Belfast, though it should be noted that its participation in the political process has not been consistent, as a result of continuing political divisions in the province

Role of Supreme Court?

UK Supreme Court is the final court of appeal for civil cases in the United Kingdom. It also has jurisdiction under the Scotland Act 1998, the Northern Ireland Act 1998 and the Government of Wales Act 2006 (as amended by the Wales Act 2017), to resolve questions of whether legislation by the devolved administrations goes beyond the scope of their legislative competence

Key cases for separation of powers?

Shaw v DPP [1962]

Malone v Metropolitan Police Commissioner [1979]

Gillick v West Norfolk Health Authority [1986]

R v R [1992]

Airedale NHS Trust v Bland [1993]

R v Home Secretary, ex parte Fire Brigades Union [1995]

Jackson v Attorney General [2005]

R(Evans) & Anor v Attorney General [2015]

What do Courts do?

Interpret Apply Enforce Consider issues Consider facts Analyse Implement Administer Scrutinise Develop common law Maintain law and order Resolve Check on power Uphold justice

Workshop 3 - Is there a definition for the rule of law?

No but has become a more significant and constitutionally important concept in recent years, as illustrated by direct reference to it as a 'constitutional principle' in section 1 of the Constitutional Reform Act 2005.

What is the formal perspective on the rule of law?

Formal – eg Professor Joseph Raz:

• Legal procedure must be clear and certain.

• The law must be prospective (i.e. no laws which are retrospectively applicable).

• The law must be clear.

• The law should be applied equally.

• The judiciary must be independent.

• The 'moral' content of laws is not determinative of whether the rule of law can be said to exist in a given jurisdiction.

What is the substantive perspective of law?

Substantive – eg Ronald Dworkin:

• The same formal requirements apply, but, additionally...

• Without respect for fundamental human rights and freedoms, the rule of law cannot be said to exist.

What is the principle on rule of law?

 Advocated by Aristotle in ancient Greece as a protection against tyranny, it found its way through medieval theologians, such as Sir Thomas Aquinas, into the core of modern liberal thought. It remains a fundamental principle of all modern liberal and democratic societies. 'It is better for the law to rule than one of the citizens ... so even the guardians of the laws are obeying the laws.' Aristotle (translated by Warrington) c. 350BC

Who created the rule of law

Lord Bingham, drawing on the work of Prof. A.V. Dicey (from the late 19th century)

What are the eight fundamental principles?

- 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.

The requirement of legality?

That the government must respect and act within the confines of the law.

- Any government interference with persons or property must be sanctioned by a legal authority (whether in statute or the common law), giving an identifiable power to perform the action in question – this power must be exercised in a lawful manner. See the important historical case of Entick v Carrington (1765).

- The presumption, when interpreting statutes, is that Parliament cannot be seen to have intended to restrict important rights and freedoms unless this is made clear. This has come to be known as the legality principle – see the later section on ex p Simms.

- The independence of the judiciary is essential in this respect, because the courts determine whether government power is lawfully exercised, i.e. has been exercised within the powers given to it and is not used in an arbitrary way. The mechanism for ensuring this is judicial review.