Marks: 1 What are Dicey's three principles of the rule of law?
Choose one answer. A. No punishment may be inflicted other than for a breach of the law, irrespective of rank or status all are equal under the law, and rights and freedoms are best protected under codified law.
B. No punishment may be inflicted other than for a breach of statutory law, irrespective of rank or status all are equal under the law, and rights and freedoms are best protected under the common law.
C. No punishment may be inflicted other than for a breach of the law, irrespective of rank or status all are equal under the law, and the law must seek to do social justice.
D. No punishment may be inflicted other than for a breach of the law, irrespective of rank or status all are equal under the law, and rights and freedoms are best protected under the common law.
E. Don't know
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The correct answer is (d)
This is core knowledge which is covered in the Subject Guide at 5.3, so please revise Chapter 5 and its 'essential readings' if you answered this question incorrectly. The rule of law is one of the fundamental concepts of the constitution, to which we shall refer again at various points in the course.
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Marks for this submission: 1/1.Question 2
Marks: 1 What is the basis of Sir Ivor Jennings' critique of Dicey on the rule of law?
Choose one answer. A. Dicey's views are too conservative and favour certainty over social justice.
B. Dicey's views are too revolutionary and favour social justice over certainty.
C. The rule of law is a subterfuge which hides injustice.
D. The focus should be on the morality of law, not the rule of law.
E. Don't know
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The correct answer is (a)
This is essential material, so you should be familiar with the range of perspectives on the rule of law. See Barnett, Constitutional and Administrative Law, chapter 4 for the range of relevant academic writings. Jennings argued that Dicey was 'concerned not with clearing up the nasty industrial sections of the towns, but with the liberty of the subject', and that more discretionary power is necessary in order to promote social justice. If you chose answers (c) or (d), re-read pages 76-81 of Barnett and you should be able to see whose viewpoints those answers represent.
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Marks for this submission: 1/1.Question 3
Marks: 1 Which factor may be said to have undermined the rule of law in CCSU v Minister for the Civil Service?
Choose one answer. A. Due to the doctrine of the separation of powers, courts cannot interfere with decisions made by a Minister of the Crown.
B. Due to the doctrine of the separation of powers, some important policy decisions are non-justiciable.
C. Due to the margin of appreciation, some important policy decisions are non-justiciable.
D. Due to the doctrine of the separation of powers, courts cannot interfere with decisions of the executive.
E. Don't know
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That's correct
Judicial review is not always available. See Barnett page 89; in the CCSU case, the House of Lords identified the categories of decision which would be immune from judicial review as including (but not limited to) the making of treaties, the dissolution of parliament, the appointment of ministers, declarations of war and peace, and matters relating to the granting of honours.- all of which involve matters of 'high policy'. In the courts' view, such matters should be determined by the executive, not by the judiciary.
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Marks for this submission: 1/1.Question 4
Marks: 1 What is the effect of the Human Rights Act 1998 on the rule of law in the UK? (Please choose two of the following options)
Choose at least one answer. A. It makes no difference since the UK has been a signatory to the European Convention on Human Rights for over 50 years, and so the rights were already guaranteed.
B. It makes no difference since all relevant rights were already protected under the common law.
C. It is supportive of the rule of law since judges are required to interpret legislation 'so far as it is possible to do so' in accordance with the Convention.
D. It is supportive of the rule of law since it requires public authorities to uphold Convention rights, and failure to do so is now generally unlawful.
E. Don't know
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The correct answers are (c) and (d)
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Marks for this submission: 1/1.Question 5
Marks: 1 In Entick v Carrington (1765) 19 St. Tr. 1029, the court found that:
Choose one answer. A. The search and seizure warrant was illegal since it had not been signed by a justice of the peace, and hence the officers executing the warrant had been trespassing on the plaintiff's property.
B. The search and seizure warrant was illegal since there was no lawful authority for its issue, and hence the officers executing the warrant had been trespassing on the plaintiff's property.
C. The search and seizure warrant was legal but unenforceable since it had expired, and hence the officers executing the warrant had been trespassing on the plaintiff's property.
D. The search and seizure warrant was illegal but its use was justified because the plaintiff had committed a serious offence against the state.
E. Don't know
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The correct answer is (b)
This case is discussed in the Subject Guide, see p.59, where it is among a list of cases which you were asked to research further, and to think about. You should be familiar with its facts and understand the important issues which it raises!
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Marks for this submission: 1/1.Question 6
Marks: 1 Which of the following was emphasised in the ruling of the Court of Appeal in R (L and Another) v Secretary of State for the Home Department, Lord Chancellor's Department, interested party ((2003) Times LR, 30 January)
Choose one answer. A. The need for the law to be accessible.
B. That even those whose claims for asylum are refused have rights under the ECHR.
C. That ignorance of the law is no defence.
D. That prevention of terrorism can justify exceptions to legal rights.
E. Don't know
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The correct answer is (a)
The Master of the Rolls stated that: 'It was an aspect of the rule of law that individuals and those advising them, since they would be presumed to know the law, should have access to it in authentic form.' If you did not know the answer, note that this case is in the online update to the textbook; you should therefore be familiar with it. It is very important in Public Law to keep up to date with legal developments, both statutory and in case law. You need up to date examples of each legal principle on the course and its exceptions.
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Marks for this submission: 1/1.Comprehension
Each question in the Comprehension section refers either to the reading in the subject guide or to an extract. Please make sure you read the relevant extract before answering the questions below.
Question 7
Marks: 1 What does Entick v Carrington tell us about the rule of law?
Choose one answer. A. That the common law protects human rights.
B. That the rule of law has exceptions where the state is protecting the public interest.
C. That the courts have a general power to review executive actions and ensure that they comply with the law.
D. That the courts may safeguard the rule of law through review of executive actions.
E. Don't know
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The correct answer is (d)
See the textbook at p.25 and consider the contrasting case of Liversidge v Anderson (1942) if you answered (c). However, also note the effect of the Human Rights Act 1998 - the Act allows a citizen to challenge government action which appears to violate his rights under the European Convention on Human Rights.
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Marks for this submission: 1/1.Question 8
Marks: 1 In R v R [1991] 3 WLR 767, the key rule of law issue was that:
Choose one answer. A. The appellant was convicted, and his conviction upheld, due to a retrospective change in the relevant statute; he would not have been guilty under the law at the time of his act.
B. The appellant was convicted, and his conviction upheld, due to a retrospective change in the common law; he would not have been guilty under the law at the time of his act.
C. The courts tried to overturn the marital exemption to rape which had been created by Parliament.
D. The appellant's human rights had been violated due to a breach of Article 7 of the European Convention on Human Rights.
E. Don't know
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The correct answer is (b).
This case is the subject of Activity 5.1 in the Subject Guide, where you were asked to research the case and then to write a passage evaluating the case from the perspective of the rule of law. There are several case commentaries available on Westlaw which you might find helpful. The case is also relevant to human rights and to the powers of judges to make law; further, it is interesting from the perspective of separation of powers. Note that Parliament subsequently endorsed the decision of the House of Lords by amending the relevant statute.
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Marks for this submission: 1/1.Please read the following extract from the decision of the European Court of Human Rights in CR and SW v UK [1995] 21 EHRR 245, then answer the two questions (Q9 and Q10) that follow. Question 9
Marks: 1 How does retrospectivity undermine the rule of law?
Choose one answer. A. It attacks accessibility, clarity and certainty in the law.
B. It is an arbitrary exercise of power.
C. It gives too much discretion to the courts in the definition of criminal offences.
D. All changes to statutory law should be made by Parliament, not the courts.
E. Don't know
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The correct answer is (a).
From Dicey to the European Convention on Human Rights, retrospectivity in law is condemned for the reasons given in (a): a person should not be made liable for an act which was not unlawful at the time he committed it. See page 56 in the Subject Guide and pages 85-6 in the textbook.
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Marks for this submission: 1/1.Question 10
Marks: 1 Which of the following most accurately portrays the reasons why the European Court of Human Rights found that Article 7, which prohibits retrospectivity in criminal offences, had not been violated?
Choose one answer. A. Marital immunity was an unacceptable and out of date principle, had many exceptions which affected the clarity of the law and no injustice had been done by its removal.
B. Rape is such a serious offence that no immunity should ever have been justified, the change to the law was foreseeable, and the common law immunity did not protect one of the applicants in the present case.
C. Marital immunity had never really had a sound basis in the common law but had been created by academic writers such as Hale; thus no injustice was done by the removal of the unsound principle and there had not really been a change in the common law.
D. Marital immunity was an unacceptable and out of date principle which failed to give effect to the rights of wives; the courts had removed the immunity in accordance with the requirements of equality between the sexes; the change was reasonably foreseeable and reflected Convention principles.
E. Don't know.
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The correct answer is (d).
Although the reasons behind the decision of the European Court of Human Rights are complex, in essence they were as summarised in (d). The convictions did not violate Article 7 since they were a continuation of a line of reasoning which diminished a husband's anachronistic immunity; the convictions had been a reasonably foreseeable development in the law and did not contravene either the aims of Article 7 or the underlying aims of the entire Convention.
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Marks for this submission: 1/1.Question 11
Marks: 1 Which of the following do we learn from the events in Malone v Metropolitan Police Commissioner [1979] 1 CH 344 and Malone v UK [1984] 7 EHRR 14?
Choose one answer. A. That illegally intercepted communications cannot be used as evidence in criminal trials since to do so would violate the rule of law.
B. That without a statute to regulate police actions in intercepting communications, such actions will be unlawful according to English courts and the Convention.
C. That although a state action may be lawful under English law, it may still be the case that insufficient protection is given to Convention rights or that the law lacks the necessary degree of certainty and clarity.
D. That a state action taken to prevent or detect crime in a manner which is lawful under English law will not be interfered with by the European Court of Human Rights, since it is within the margin of appreciation left to a state to determine how to deal with such matters.
E. Don't know.
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The correct answer is (c).
While reliable and complete evidence is of crucial importance to the rule of law, equality before the law is subject to many exceptions and you should be aware of how the principle has moved on since Dicey. We shall return to the human rights aspects of this case later in the course.
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Marks for this submission: 1/1.Application
Please answer the following examination question (Q12):
Question 12
Marks: 1 The following is an examination question from a past paper involving the rule of law. Which set of issues would you discuss in answering it?
"In our society the rule of law rests on twin foundations: the sovereignty of the Queen in Parliament in making the law and the sovereignty of the Queen's courts in interpreting and applying the law." (Lord Bridge of Harwich, 1991). Discuss.
Choose one answer. A. The rule of law, the sovereignty of Parliament, the role of the judiciary and separation of powers; the relationship between the three; in discussing the rule of law, the key matters to discuss are Dicey's three principles and the critique of them from other academics and viewpoints.
B. The rule of law, the sovereignty of Parliament, the role of the judiciary and separation of powers; the relationship between the three; in discussing the rule of law, an in-depth analysis of all aspects is necessary for this question.
C. The rule of law, the sovereignty of Parliament, the role of the judiciary and separation of powers; the relationship between the three; in discussing the rule of law, the key matters to discuss are the nature and purpose of the rule of law, i.e. to ensure that powers are exercised according to the law and that individual rights are protected by the law.
D. The rule of law, the sovereignty of Parliament and the role of the judiciary; the relationship between the three; in discussing the rule of law, the focus should be on recent cases after a detailed historical examination of the development of the rule.
E. Don't know.
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The correct answer is (c).
This is the best plan. The rule of law is an important topic and one which pervades this course, but it does not always require detailed consideration in examination questions, and there are obvious topics with which it is intertwined. Sometimes a question may involve two or even three central topics, and you should be prepared to deal with such questions appropriately; writing everything you know about the topics is not an appropriate answer. It is vital to answer the specific question asked. Students often hope, very optimistically, to find a whole question in the exam on each identifiable topic of the course; past papers should show you that this is not realistic. Planning answers is a vital skill. If you have not already done so, look at the Examiners' Reports for previous years: this question was from the 2003 paper and was unpopular and not answered particularly well by students.
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Marks for this submission: 1/1.
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