3.1.3 The Rule of Law Lecture – Hands on Examples
The following are some example essay questions, which you may find in an exam regarding the topic on the Rule of Law. Good answers should include reliance on a variety of arguments for and against a particular line of reasoning and show evidence of reading beyond lecture notes or a single academic textbook. Unlike other law topics, this one is fairly theoretical and hence various arguments based on legal scholarship should be revised in order to answer a question about the Rule of Law.
Q1 Outline the historical origins of the rule of law
Q2 Outline Dicey's key features of a legal system based on the rule of law, consider criticisms of his theories.
Q3 Assess the continuing value or even the actual existence of the rule of law today
Q4 Consider how judges have interpreted the principles of the rule of law, with reference to recent case law
- Question 1
- A possible starting point is the Roman period where the Prince was considered to be above the law
- In the UK the Magna Cara 1215 asserted that the King was subject to the law of England
- Outline main principles within the Magna Carta
- Prohibitions del Roy (1607, published 1656 (1572-1616 12 Co Rep 63) Sir Edward Cooke held that the King could not act as judge and use his own reason to reach legal decisions
- Period of civil unrest in the 17th century where the King exceeded his powers
- The Barons reasserted the rule of law in the Petition of Rights 1628
- Habeas Corpus Act 1679 was introduced to prevent the King from detaining prisoners without trial or charge
- Bill of Right Act 1689 asserted the need for law to laws to be repealed or suspended only with parliamentary authority. The Monarch and the court's were unable to subvert the right of the prisoner to Habeas Corpus.
- Question 2
- A.V. Dicey, writing inIntroduction to the Study of Law of the Constitution (1885) has been influential in establishing the rule of law within the 19th century and stating its content
- Three principles of the rule of law 1. Punishment requires the due process of law be followed, 2. Neither the King, nor the Prime Minister is above the law; 3. The rule of law is central to the UK constitution
- Jennings was one of Dicey's most notable critics. In The Law and the Constitution, (1933), argued that Dicey failed to consider the powers of government, his focus was more upon constitutional relationships with the elements of the United Kingdom, than upon internal problems that the working classes were facing in the country at the time.
- For Jennings the rule of law would be all encompassing and consider the substantive nature of the law, whereas for Dicey, the rule of law merely concerned the narrow view that it was merely concerned with the governance of the acts of public officials, law makers and adjudicators.
- Question 3
- Short introduction to the rule of law, how was it defined by Dicey for example? Is that still relevant today?
- Refer to recent cases, e.g. R v Rimmington  1 Cr App R 17 and Sharma v Brown-Antoine  UKPC 57 which both refer to Dicey's principles of the rule of law.
- Consider anti-terrorism legislation, including Anti-terrorism, Crime and Security Act 2001 and Immigration Act 1971, that permit the Secretary of State to deport terrorist suspect when considered a threat to national security, shows and example of the use of wide and arbitrary discretionary powers that need to be kept in check by the rule of law.
- Also consider detention without trial in A and others v Secretary of State for the Home Department  UKHL 56, and the requirement for the courts to overturn the discriminatory of the Anti-Terrorism, Crime and Security Act 2001 (since repealed).
- Importance of the right of Habeas Corpus particularly in relation to Guantanamo Detainees
- Does the Human Rights Act 1998 and the UK's membership of the European Convention on Human Rights make the rule of law obsolete? No, since both of these things are currently under threat from the Conservative government.
- Question 4
- Use various principles of the rule of law and use case law to illustrate how they have been applied in practice.
- Punishment requires that the citizen has broken the law - the principle has been circumvented in anti-terrorist legislation, e.g. section1 of the Anti-Terrorism, Crime and Security Act 2001, which permitted indefinite detention of terror suspects without trial. Refer to case of A and others v Secretary of State for the Home Department  UKHL 56,(Belmarsh case)
- Equality before the law - R v Mullen  QB 520, the CA held that Mullen's unlawful extradition undermined the administration of justice and his conviction was quashed, whatever the inconvenience. the rule of law must remain above the justification the state might attempt to use for acting outside of the law. The state was still subject the law on extradition proceedings.
- Citizen's should have access to court to challenge the decisions of the state - In R (on the application of G) v IAT and another; R (on the application of M) v IAT and another  2 All ER 165, challenged the change of procedure for asylum claims which was implemented within the Asylum and Immigration [Treatment of Claimants] Act 2004. The final appeal stage of judicial review was replaced with a single high court judge who would review written submissions. This was found to be a sufficient recourse to a legal remedy to remain within the rule of law.
- The requirement of legal certainty -R v Rimmington; R v Goldstein  2 All ER 257, HLquestioned the certainty of common law. The case reiterated that common law was certain due to the precedent established on a case-by-case basis
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