The can use as evidence to show the

The definition of Rule of law by T.R.S Allan is: “the
term the rule of law seems to be primarily a corpus of basic principle and
values, which together lend some stability and coherence to the legal order”1.
The rule of law breaks down into two theories; the formal and the
substantive.  The formal theory of law is that, law is made by a
predetermined procedure which is clear, certain and stable. No one is also
punished via the state other than for a breach of the law. Finally, the law
applies equally to all regardless of their status. The substantive theory
includes all aspects of formal law, but also believes that the law must uphold
human rights. It considers a common good, making the law a moral system used
for justice.  In this essay I will analyse both types of these theories
and how they affect UK courts. 

A reason why the substantive rule of law may be a better
source of law in the UK is because it embodies the law with human rights,
making a more moral system. As Joseph Raz states “a non-democratic legal system
based on the denial of human rights” could change to “slavery without violating
the rule of law”2. Raz
argues that without the law being moral; too much power is given to the courts
in a formal system.  This could lead to law becoming unethical, for
example, allowing slavery, as the formal theory is too limited and doesn’t
consider human rights.  The case
which I can use as evidence to show the
differences between the Formal and Substantive law is A and others v
Secretary of state for the home department, 2004, UKHL 56. In this case, the
appellants were foreign nationals, who were suspected of terrorist activities. They were all certified by the home
secretary, under section 21, of the Anti-Terrorism, Crime and Security Act
(2001). This shows how in a formal system law can be enforced, whilst breaching
people’s human rights. The plaintiffs claimed it was too risky for them to be
sent home, due to fear that they may be killed, this lead to them being
detained indefinitely without grounds for a trial. This shows how in a formal
system the law can be enforced, whilst breaching people’s human rights. The
Home Secretary was not acting illegally, in a formal system.  However,
is indefinitely imprisoning foreign nationals without proof legal in a
Substantive System? This is backed up by Dicey
and his four principles of the rule of law: “a man may with us be punished for
the breach of law, but he can be punished for nothing else”3.
This shows that the fundamental purpose of the rule of law has been breached
due to a formal system, which chose not to protect the human rights of the
foreign nationals as they were detained without correct cause. This is a very tricky issue, as you could
argue that it was due to exceptional circumstances.  It was necessary to
protect the people of the state from a potential terrorist attack under
legitimate law.

We Will Write a Custom Essay Specifically
For You For Only $13.90/page!


order now

An
argument for the formal theory is that the rule of law should be clear, certain
and stable, although the substantive theory agrees with this, it can still
weaken the clarity of the law.  This is backed up by Joseph Raz who argues
that “If the
rule of law is the rule of the good law then to explain its nature is to
propound a complete social philosophy”4 The rule
of law is a political ideal the legal system should not be influenced by human
rights justice or equality. This shows that if the rule of law is substantive
it will create more than just a supreme power over all men; it will create a
philosophy on how the state should be run.  This will reduce the clarity
and certainty of the law, as it is an objective concept, not open to being
moral and having emotions, instead it’s a tool used to keep all residents under
“basic principle and values, which together lend some stability and coherence
to the legal order”5 stated
by T.R.S Allan. If the law were substantive it would undermine the principles
of formal law which it agrees with, such as certainty and stability, as the law
would be more open to interpretation. Which would also make lots of current
precedent irrelevant due to a large moral change in UK’s legal system.

My final substantive paragraph is based on this quote by
J.Finnis “just because a country has a strong commitment to the rule of law
does not mean it cannot be eroded through legislative changes…… as evidence by
Germany under Nazi rule”6
All of their acts were legal as the rule of law was changed via legislation and
propaganda, this lead to an unethical legal system without human rights. They
were using a formal system which was easily influenced and manipulated. 
If it had been a substantive system, it would have been more difficult to pass
the legislation.  The rule of law would have been built on morals, making
the creation of “Concentration camp”, as stated in the quote, almost impossible
with human rights imbedded in the law itself.

My final formal point is also based on J.Finnis: 
“the strengths or weakness of the rule of law vary overtime within any given
state” This shows that as the law consistently changing, the strengths and
weaknesses are always there, but do change overtime. This is shown in the Magna
Carta in 1215.  It was the first time that the law was above all people,
including the Monarch, in the UK. Prohibitions del Roy (1607) 12 Co Rep 63, in this case there was a
dispute over land and the King decided to settle it himself, but Sir Edward
Coke LCJ said “the King in his own person cannot adjudge any case”7.
This shows that by having a formal, very objective based law by 1607, the most
powerful man in the country was also forced to obey.  It shows that as the
Law was formal it made it very powerful, as it was easy to enforce and clear
for everyone to understand.  J.Finnis was not arguing that substantive is
defiantly a better approach, but in the example of Nazi Germany, it may have
helped prevent the lack of morality. In the current system in the UK, we have a
democratically elected parliament who create the laws which are enforced by the
courts, therefore a formal system of law maybe appropriate, as if members of
parliament try to pass laws which as stated in the quote “persecuted sections
of its people” they are very unlikely to be voted back into power again. 
Also, before coming law, a bill is not only approved by the elected House of
Commons, it is then sent on the House of Lords (which is made up of people from
all walks to life), to be checked and challenged. Before finally being approved
and sent to the Monarch for ‘Royal Ascent’ as one of her royal prerogatives. Even
if all this fails the Monarch has the prerogative power to dissolve the parliament
if she believes they are abusing their power or possibly going against what the
people in the UK want. On the other hand, since the royal prerogatives are part
of common law they can be restricted or abolished by the government via Statutory
legislation. This is because common law can be altered via newer Statutory legislation
as parliament creates the highest form of law in the UK which gives it the
power to restrict or abolish the Monarch and his/her prerogative powers. A rebuttal
of this is the royal family generate 500 Million per year in tourism8
so are unlikely to be removed due to their economic benefits to the UK per
year.

To conclude, I believe that the UK should keep the Formal
rule of law system in place, even though this may give more power to the
courts, which it could be argued may lead to a legal system which lacks
morality.  I believe that since Parliament creates the law, and they are
democratically elected, they generally act in the best interests of the people,
plus there are checks in place to ensure that they do. The formal theory ensures that the law is clear, certain and stable, it
has been built up over time.  The Substantive theory helps to stop the
state from persecuting sections of its people.  It makes the state
consider Human rights and what is moral, but it can reduce the clarity and
certainty of the law.  I believe that in the UK, currently, there is less
need for a Substantive rule of law, as there is a lot of protection for all
sections of its people in place. There are weaknesses, for example, the breach
of human rights in A and others v Secretary of state for the home department
2004 UKHL 56, but I still believe that a formal clear and objective approach is
better, since the courts in the UK mostly enforce the law not create it.

 

                                                                                Question 2

In this essay
I will weigh up whether the indefinite detainment of Non-UK citizens without a
trial in the case of A and Others v
Secretary of State for the Home Department 2004 UKHL 56 was justified
by the courts. To do this I will consider the circumstances of the case; for example,
the indefinite detainment to only non-UK citizens and not the suspected
terrorists who were born in the UK, whether the situation was exceptional
enough to justify the detention of the Appellants. To do this I will back up my
arguments by quoting lords and their opinions on the matter.

One benefit of the courts being able to “decide whether
restrictions of human rights of suspected terrorists…” as stated in the
quote, is it allows the courts to protect the public without being forced to
define a “emergency threatening the life of the nation” forcing the law to be
objective and act in the best interest of the nation without pushing its own
political view point. This is backed up by Lord Nicholls of Birkenhead who
says, “Exceptional circumstances must exist before this extreme step can be
justified”9. 
I believe that in this case that it was justified; the suspected terrorists refused
to go home, due to the risk of being killed on return. This created an
“exceptional circumstance”, the Plaintiffs could not be sent home, but as they
were suspected terrorists there was a potential threat to the public, so they
detained under section 21 of the anti-terrorism, Crime and security Act 2001.
This was created shortly after 9/11, therefore there was a larger emphasize on
national security, which lead to Non-UK nationals to be detained for an
indefinite period without trial. Although this is an extreme step, I would
argue that we can’t just allow suspected terrorists to move freely around the
UK just because they cannot be sent home. This means the courts should be
allowed to detain and restrict the human rights of suspected terrorists, in exceptional
circumstances, where it is not possible to send the Non-UK nationals back to
their country of origin and where there is a risk to the public safety.

On the other hand, you could argue that the courts in the
UK should not have the right to breach human rights regardless off the
situation, especially without hard evidence or a trial. This is important, as
it breaches Dicey’s four principles of the rule
of law:” a man may with us be punished for the breach of law, but he can be punished
for nothing else”10. 
A fundamental value has been broken, as no crime was committed or at least none
proven, but the Plaintiffs were still detained. This is backed up by Lord
Justice Laws (at 146-147) “our conception of the rule of law has been
becoming increasingly substantive … courts have special reasonability in the
field of human rights” this shows that the courts have a duty to protect human
rights and can only breach them in very rare situations. This is not an
exceptional enough situation to warrant the indefinite detain of suspected
terrorists.  Otherwise every suspected terrorist could be detained
indefinitely; therefore, we need a better system in place to deal with this. I
also believe it was unfair as, in section 21, of the anti-terrorism,
Crime and security Act 2001, only non-UK citizens could be detained indefinitely
without trial, which makes the law discriminatory.  It could be said that
the courts acted unjustly, as they enforced a discriminatory law, to breach
human rights and detain suspects without grounds of trial. The Appellants were
left in an awful situation; they could not return home, without risking their
own wellbeing or they trapped in the UK, with no knowledge of when they would
be released or even when there would be a trial to prove that they were
“innocents”.  The court should only have been able to detain them if they
had some evidence linking them to the suspected terrorist attack.

To conclude I believe that in case A and Others v Secretary of State for the
Home Department 2004 despite the breach of their human rights, it was
justified. This is because there were very limited options for the secretary of
state and the courts. They were caught in a situation where they could not
simply send the Plaintiffs back to their home country, as they were in danger
and may have been killed. Due to section 21, of the anti-terrorism, Crime and
security Act 2001, they had legislation which allowed them to detain the
suspects indefinitely without trial. Although this is a hard act to justify, I
believe the courts should have the power to detain suspects, if they are viewed
as a danger to the public. This is an outdated version of the act, house
arrests were not an option at the time, so the courts had no choice but to
either detain them indefinitely or release them into the UK.  Under the
circumstances, I believe they did the right thing and that the courts should
keep hold of this power.

 

                                                                                Question
3

To: Mohammad Asghar AM

From: William Elkins

Date: August 15, 2017

Subject: Wales act 2017

 

Mr. Asghar,

 

I’ve attached my views of the Welsh
act 2017 and the effect of Devolution (the transfer of powers of the government
to regions of the state)

 

The Wales act 2017 changes the balance
of power between the Welsh assembly and the UK government.  It changes
Wales from a conferred powers model to a reserved power model.  It does
this by amending previous acts, by changing the Government of Wales Act 2006
which now gives more powers to Wales via Devolution.  It also introduces
legislation which was not in the Wales act 2014, based on St David’s day
agreement.  Finally puts greater emphasis on the permanence of the UK,
which has been added as a new section to the Government of Wales Act 2006;
stating that the welsh assembly “are a permanent
part of the United Kingdom’s constitutional arrangements”. Due to this
permanence, the bill states that with a two third majority, the Welsh Assembly
will be able to change its name to Parliament, if they wish, making them more
established in 2018 when the bill comes into power.

 

Under the Wales Act
2017, there has been an increase in legislative control for Wales.  It has
been allowed control over; Taxes, Roads and Transport, Energy and the
Environment, Ofcom and Equality. This has caused controversy, as although more
power has been transferred from Parliament to the Welsh Assembly, there are
still lots of reserved powers.  Foreign affairs, for example, and around
two hundred other areas have either been fully reserved to the UK government or
at least partially. This has caused a mixed view, as some people believe that
it is a good/acceptable offer, as Wales have never been able to alter tax rates
previously, without a referendum and they are now able to do so. This is backed
up by First Minister Carwyn Jones said, “The Act had some good parts and that
it should be accepted, because a better deal from the UK government wasn’t
going to be put on the table”11.
On the other hand, some people believe that it is not fair and that they voted
for the Conservatives, who promised more powers.  The Assembly group
chair, Dai Lloyd, said: “This is an undemocratic bill which represents a
significant roll-back of powers. Plaid Cymru cannot, in good conscience,
support a bill which undermines the democratic will of people in Wales who
voted for more powers in the 2011 referendum.”12

 

I believe that it is
a good offer, as I don’t think that the Welsh assembly can expect to be given
equal powers to those that the UK Parliament.  According to a study in
2013-2014, London generated 125 billion in economy taxes compared to Cardiff’s
10 billion (both approximately taken from a graph)13.
This shows that London produces far more tax income, so I believe it is
reasonable for the place where the driving force of the economy is situated to
hold most power and that this level of devolution offered under the 2017 Wales
act is a fair starting point.

 

Best,

William Elkins

Swansea University

 

1 T.R.S
Allan,Law,Liberty and justice: The legal Foundations of British
Constitutionalism (Oxford:Oxford university press, 1995) 143.

2  Raz, J.  The rule of law and its virtue.1977 93 law quarterly review
p.211,212,222.

3 A.V.Dicey, Introduction to the study of law of the
constitution (10th edn, London:Macmillan and co, 1959), pp. 202-203

4 Raz, J.  The
rule of law and its virtue.1977 93 law quarterly review p.211,212

 

5
T.R.S Allan,Law,Liberty and justice: The legal
Foundations of British Constitutionalism (Oxford:Oxford university press, 1995),
p.143

6 J.Finnis, Natural Law and Natural
Rights (Oxford University Press 1980) , p.270

7 Sir Edward Coke (1572-1616) 12
Co Rep 63

8  Khazan,
O. (2017). Is the British Royal Family Worth the Money?. online The
Atlantic. Available at:
https://www.theatlantic.com/international/archive/2013/07/is-the-british-royal-family-worth-the-money/278052/
Accessed 10 Dec. 2017.

9
A and others v Secretary of state for the home
department UKHL 56 2004 74

10
A.V.Dicey, Introduction to the study of law of
the constitution (10th edn, London:Macmillan and co, 1959), pp. 202-203

 

11 Milne, O. (2017). The Wales Bill is now law – here’s what it means.
online walesonline. Available at :http://www.walesonline.co.uk/news/politics/wales-bill-now-law-heres-12532956
Accessed 10 Dec. 2017.

 

12 Milne, O. (2017). The
Wales Bill is now law – here’s what it means. online walesonline.
Available at :http://www.walesonline.co.uk/news/politics/wales-bill-now-law-heres-12532956
Accessed 10 Dec. 2017.

13 Citymetric.com. (2017). London
still generates more than twice the tax revenue than the entire Northern
Powerhouse region | CityMetric. online Available at:
http://www.citymetric.com/politics/london-still-generates-more-twice-tax-revenue-entire-northern-powerhouse-region-1235
Accessed 10 Dec. 2017.