Self-test questions: Rule of law

. In The Introduction to the Study of the Law of the Constitution (1885), A.V. Dicey described the Rule of Law as a distinctive feature of the English constitution. Identify which of the following 'distinct though kindred' concepts he included as part of this feature:

no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law.

Parliament is sovereign.

Every man, whatever be his rank or condition, is subject to the ordinary law of the realm.

The law must afford adequate protection of fundamental rights.

The law must be accessible and, so far as possible, intelligible, clear and predictable.

. Which of the following cases articulated the principle that a positive law is required to justify trespass with dicta noting that '. . . if it is law it will be found in our books. If it is not to be found there, it is not law'?

Dr Bohman Case, Re (1609) 77 E.R. 646

Bagg's Case, Re (1615) 77 E.R. 1271

Entick v Carrington (1765) 95 E.R. 807

Balfour v Balfour [1919] 2 K.B. 571

Liversidge v Anderson [1942] A.C. 206

. The legal relevance of M v Home Office and Another [1994] 1 AC 337 is often described as illustrating the Rule of Law principle that:

Government ministers are subject to the law.

Adjudicative procedures provided by the state should be fair.

For the sake of liberty there must be separation of public powers to prevent its abuse.

The Rule of Law requires compliance by the state with its obligations in international law as in national law.

The law must be accessible and, so far as possible, intelligible, clear and predictable.

. The Magna Carta 1215 is considered by many to be an important historical milestone for the Rule of Law. Which among the following describe provisions found within the document?

That all men are created equal with certain unalienable rights.

That the Crown may not suspend or execute laws without the consent of Parliament.

That the freedom of speech (and debates or proceedings) in Parliament ought not to be impeached or questions in any court.

That no free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.

That justice will neither be sold nor denied.

. Lorraine is preparing for an exam and has listed a number of statements she believes are examples of principles associated with the Rule of Law. You have been asked to review her list and identify which among the following would not be considered general Rule of Law principles.

All are equal before the law.

For the sake of liberty there must be separation of public powers to prevent its abuse.

Only Parliament can legitimately make law.

Powers of discretion should not be exercised in an arbitrary manner.

Principles of natural justice should be observed

. In A and Others v Secretary of State for the Home Department [2004] UKHL 56, Lord Bingham commented that 'the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself.' Which of the following best describe the proposition to which he was responding?

That the courts are not adequately independent as the final court of appeal is constituted by the Appellate Committee of the House of Lords and is thus not a fully separate institution from Parliament.

That as the courts were not a democratic institution, they were precluded from assessing the issues raised.

That the courts are precluded from assessing the issues raised because only the Executive could appropriately interpret the relevant legislation.

That an ouster clause within the relevant legislation prevented scrutiny of the executive's decision by the courts

That as the derogation order was an order in council (and thus primary legislation) its lawfulness was not justiciable.

. Which of the following propositions are associated with formal approaches to the Rule of Law?

Law should be prospective

Human Rights are universal

The judiciary must be independent

The only legitimate source of law is the will of the people

There should be no punishment except for breach of law

. Harlow and Rawlings suggested two categories to describe ways of thinking about administrative law – red light and green light theories. Which of the following best describe a key proposition of green light theory'?

That excessive administrative – associated with a welfare state – is a threat to individual liberty.

That the administrative state should be welcomed as a vehicle for political progress, and the courts role should be minimised in favour of alternative forms of public accountability.

That natural justice is at the heart of the courts control of administrative action.

That the primary function of administrative law should be to control the excesses of state power and subject it to the rule of the law courts.

That procedural fairness is the primary virtue of the Rule of Law, and central to ensuring fair administration.

. In the mythical town of Brigadoon, the court is composed of a randomized selection of residents who decide on private disputes brought before them without reference/regard to previous decisions, a legal code, nor any particular set of rules. Instead, decisions are made on an ad hoc basis according to what the group deems fair in the particular instance. All of the private disputes of residents of Brigadoon are dealt with through this mechanism and the only codified rules relate to public law. This is the system of law that has been agreed among the people of Brigadoon who rarely have any private disputes. Which of the following principles/values associated with the rule of law have been contravened?

The law should be consistent.

Natural justice should be at the heart of the courts control of administrative action.

There should be no punishment without breach of the law.

Justice should neither be sold nor denied.

The judiciary must be independent.

. The day after Edwina was informally told by a friend working for the local government that her house was to be demolished to make way for a new road, the bulldozers arrived at her front door. When she challenged the legitimacy of the action, she was told that legislation gave discretion to the local council to decide when a private property needed to be removed for the purposes of development and that she had plenty of time to object as the notice for the plans had been available on display for the last 6 months at the local council's office. Edwina replied 'well, when I finally heard yesterday afternoon about this plan, I immediately went to find the notice and discovered it was 'displayed' in the back of a storage room with no working lights and a note on the door saying "toilets out of use." This can't possibly be fair!' To which the head of the demolition crew responded, 'life isn't fair' and proceeded to oversee the demolition of her house.

Which of the following principles/values associated with the Rule of Law would the above scenario be best described as having been contravened?

All are equal before the law.

The law should be general.

The principles of natural justice should be observed, and administrative powers should be exercised fairly.

International human rights obligations should be respected.

The law should be prospective rather that retrospective

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