The can use as evidence to show the

The definition of Rule of law by T.

R.S Allan is: “theterm the rule of law seems to be primarily a corpus of basic principle andvalues, which together lend some stability and coherence to the legal order”1.The rule of law breaks down into two theories; the formal and thesubstantive.  The formal theory of law is that, law is made by apredetermined procedure which is clear, certain and stable.

No one is alsopunished via the state other than for a breach of the law. Finally, the lawapplies equally to all regardless of their status. The substantive theoryincludes all aspects of formal law, but also believes that the law must upholdhuman rights. It considers a common good, making the law a moral system usedfor justice.  In this essay I will analyse both types of these theoriesand how they affect UK courts. A reason why the substantive rule of law may be a bettersource 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 systembased on the denial of human rights” could change to “slavery without violatingthe rule of law”2. Razargues that without the law being moral; too much power is given to the courtsin a formal system.  This could lead to law becoming unethical, forexample, allowing slavery, as the formal theory is too limited and doesn’tconsider human rights.  The casewhich I can use as evidence to show thedifferences between the Formal and Substantive law is A and others vSecretary of state for the home department, 2004, UKHL 56.

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In this case, theappellants were foreign nationals, who were suspected of terrorist activities. They were all certified by the homesecretary, under section 21, of the Anti-Terrorism, Crime and Security Act(2001). This shows how in a formal system law can be enforced, whilst breachingpeople’s human rights. The plaintiffs claimed it was too risky for them to besent home, due to fear that they may be killed, this lead to them beingdetained indefinitely without grounds for a trial. This shows how in a formalsystem the law can be enforced, whilst breaching people’s human rights. TheHome Secretary was not acting illegally, in a formal system.

  However,is indefinitely imprisoning foreign nationals without proof legal in aSubstantive System? This is backed up by Diceyand his four principles of the rule of law: “a man may with us be punished forthe 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 breacheddue to a formal system, which chose not to protect the human rights of theforeign nationals as they were detained without correct cause. This is a very tricky issue, as you couldargue that it was due to exceptional circumstances.

  It was necessary toprotect the people of the state from a potential terrorist attack underlegitimate law.Anargument for the formal theory is that the rule of law should be clear, certainand stable, although the substantive theory agrees with this, it can stillweaken the clarity of the law.  This is backed up by Joseph Raz who arguesthat “If therule of law is the rule of the good law then to explain its nature is topropound a complete social philosophy”4 The ruleof law is a political ideal the legal system should not be influenced by humanrights justice or equality.

This shows that if the rule of law is substantiveit will create more than just a supreme power over all men; it will create aphilosophy on how the state should be run.  This will reduce the clarityand certainty of the law, as it is an objective concept, not open to beingmoral and having emotions, instead it’s a tool used to keep all residents under”basic principle and values, which together lend some stability and coherenceto the legal order”5 statedby T.R.S Allan.

If the law were substantive it would undermine the principlesof formal law which it agrees with, such as certainty and stability, as the lawwould be more open to interpretation. Which would also make lots of currentprecedent irrelevant due to a large moral change in UK’s legal system.My final substantive paragraph is based on this quote byJ.Finnis “just because a country has a strong commitment to the rule of lawdoes not mean it cannot be eroded through legislative changes…… as evidence byGermany under Nazi rule”6All of their acts were legal as the rule of law was changed via legislation andpropaganda, this lead to an unethical legal system without human rights.

Theywere using a formal system which was easily influenced and manipulated. If it had been a substantive system, it would have been more difficult to passthe legislation.  The rule of law would have been built on morals, makingthe creation of “Concentration camp”, as stated in the quote, almost impossiblewith 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 givenstate” This shows that as the law consistently changing, the strengths andweaknesses are always there, but do change overtime. This is shown in the MagnaCarta 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 adispute over land and the King decided to settle it himself, but Sir EdwardCoke 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 mostpowerful man in the country was also forced to obey.  It shows that as theLaw was formal it made it very powerful, as it was easy to enforce and clearfor everyone to understand.  J.Finnis was not arguing that substantive isdefiantly a better approach, but in the example of Nazi Germany, it may havehelped prevent the lack of morality. In the current system in the UK, we have ademocratically elected parliament who create the laws which are enforced by thecourts, therefore a formal system of law maybe appropriate, as if members ofparliament try to pass laws which as stated in the quote “persecuted sectionsof 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 ofCommons, it is then sent on the House of Lords (which is made up of people fromall walks to life), to be checked and challenged. Before finally being approvedand sent to the Monarch for ‘Royal Ascent’ as one of her royal prerogatives. Evenif all this fails the Monarch has the prerogative power to dissolve the parliamentif she believes they are abusing their power or possibly going against what thepeople in the UK want.

On the other hand, since the royal prerogatives are partof common law they can be restricted or abolished by the government via Statutorylegislation. This is because common law can be altered via newer Statutory legislationas parliament creates the highest form of law in the UK which gives it thepower to restrict or abolish the Monarch and his/her prerogative powers. A rebuttalof this is the royal family generate 500 Million per year in tourism8so are unlikely to be removed due to their economic benefits to the UK peryear.To conclude, I believe that the UK should keep the Formalrule of law system in place, even though this may give more power to thecourts, which it could be argued may lead to a legal system which lacksmorality.  I believe that since Parliament creates the law, and they aredemocratically 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, ithas been built up over time.  The Substantive theory helps to stop thestate from persecuting sections of its people.  It makes the stateconsider Human rights and what is moral, but it can reduce the clarity andcertainty of the law.

  I believe that in the UK, currently, there is lessneed for a Substantive rule of law, as there is a lot of protection for allsections of its people in place. There are weaknesses, for example, the breachof human rights in A and others v Secretary of state for the home department2004 UKHL 56, but I still believe that a formal clear and objective approach isbetter, since the courts in the UK mostly enforce the law not create it.                                                                                  Question 2In this essayI will weigh up whether the indefinite detainment of Non-UK citizens without atrial in the case of A and Others vSecretary of State for the Home Department 2004 UKHL 56 was justifiedby 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 suspectedterrorists who were born in the UK, whether the situation was exceptionalenough to justify the detention of the Appellants. To do this I will back up myarguments by quoting lords and their opinions on the matter.One benefit of the courts being able to “decide whetherrestrictions of human rights of suspected terrorists..

.” as stated in thequote, is it allows the courts to protect the public without being forced todefine a “emergency threatening the life of the nation” forcing the law to beobjective and act in the best interest of the nation without pushing its ownpolitical view point. This is backed up by Lord Nicholls of Birkenhead whosays, “Exceptional circumstances must exist before this extreme step can bejustified”9.

 I believe that in this case that it was justified; the suspected terrorists refusedto 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 theywere suspected terrorists there was a potential threat to the public, so theydetained 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 onnational security, which lead to Non-UK nationals to be detained for anindefinite period without trial. Although this is an extreme step, I wouldargue that we can’t just allow suspected terrorists to move freely around theUK just because they cannot be sent home.

This means the courts should beallowed to detain and restrict the human rights of suspected terrorists, in exceptionalcircumstances, where it is not possible to send the Non-UK nationals back totheir country of origin and where there is a risk to the public safety.On the other hand, you could argue that the courts in theUK should not have the right to breach human rights regardless off thesituation, especially without hard evidence or a trial. This is important, asit breaches Dicey’s four principles of the ruleof law:” a man may with us be punished for the breach of law, but he can be punishedfor nothing else”10.

 A fundamental value has been broken, as no crime was committed or at least noneproven, but the Plaintiffs were still detained. This is backed up by LordJustice Laws (at 146-147) “our conception of the rule of law has beenbecoming increasingly substantive … courts have special reasonability in thefield of human rights” this shows that the courts have a duty to protect humanrights and can only breach them in very rare situations. This is not anexceptional enough situation to warrant the indefinite detain of suspectedterrorists.  Otherwise every suspected terrorist could be detainedindefinitely; therefore, we need a better system in place to deal with this. Ialso believe it was unfair as, in section 21, of the anti-terrorism,Crime and security Act 2001, only non-UK citizens could be detained indefinitelywithout trial, which makes the law discriminatory.  It could be said thatthe courts acted unjustly, as they enforced a discriminatory law, to breachhuman rights and detain suspects without grounds of trial.

The Appellants wereleft in an awful situation; they could not return home, without risking theirown wellbeing or they trapped in the UK, with no knowledge of when they wouldbe 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 theyhad some evidence linking them to the suspected terrorist attack.To conclude I believe that in case A and Others v Secretary of State for theHome Department 2004 despite the breach of their human rights, it wasjustified. This is because there were very limited options for the secretary ofstate and the courts. They were caught in a situation where they could notsimply send the Plaintiffs back to their home country, as they were in dangerand may have been killed. Due to section 21, of the anti-terrorism, Crime andsecurity Act 2001, they had legislation which allowed them to detain thesuspects indefinitely without trial. Although this is a hard act to justify, Ibelieve the courts should have the power to detain suspects, if they are viewedas a danger to the public. This is an outdated version of the act, housearrests were not an option at the time, so the courts had no choice but toeither detain them indefinitely or release them into the UK.

  Under thecircumstances, I believe they did the right thing and that the courts shouldkeep hold of this power.                                                                                 Question3To: Mohammad Asghar AMFrom: William ElkinsDate: August 15, 2017Subject: Wales act 2017 Mr. Asghar, I’ve attached my views of the Welshact 2017 and the effect of Devolution (the transfer of powers of the governmentto regions of the state) The Wales act 2017 changes the balanceof power between the Welsh assembly and the UK government.  It changesWales from a conferred powers model to a reserved power model.  It doesthis by amending previous acts, by changing the Government of Wales Act 2006which now gives more powers to Wales via Devolution.  It also introduceslegislation which was not in the Wales act 2014, based on St David’s dayagreement.

  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 permanentpart of the United Kingdom’s constitutional arrangements”. Due to thispermanence, the bill states that with a two third majority, the Welsh Assemblywill be able to change its name to Parliament, if they wish, making them moreestablished in 2018 when the bill comes into power. Under the Wales Act2017, there has been an increase in legislative control for Wales.  It hasbeen allowed control over; Taxes, Roads and Transport, Energy and theEnvironment, Ofcom and Equality.

This has caused controversy, as although morepower has been transferred from Parliament to the Welsh Assembly, there arestill lots of reserved powers.  Foreign affairs, for example, and aroundtwo hundred other areas have either been fully reserved to the UK government orat least partially. This has caused a mixed view, as some people believe thatit is a good/acceptable offer, as Wales have never been able to alter tax ratespreviously, without a referendum and they are now able to do so. This is backedup by First Minister Carwyn Jones said, “The Act had some good parts and thatit should be accepted, because a better deal from the UK government wasn’tgoing to be put on the table”11.

On the other hand, some people believe that it is not fair and that they votedfor the Conservatives, who promised more powers.  The Assembly groupchair, Dai Lloyd, said: “This is an undemocratic bill which represents asignificant roll-back of powers. Plaid Cymru cannot, in good conscience,support a bill which undermines the democratic will of people in Wales whovoted for more powers in the 2011 referendum.”12 I believe that it isa good offer, as I don’t think that the Welsh assembly can expect to be givenequal powers to those that the UK Parliament.  According to a study in2013-2014, London generated 125 billion in economy taxes compared to Cardiff’s10 billion (both approximately taken from a graph)13.This shows that London produces far more tax income, so I believe it isreasonable for the place where the driving force of the economy is situated tohold most power and that this level of devolution offered under the 2017 Walesact is a fair starting point. Best,William ElkinsSwansea University 1 T.

R.SAllan,Law,Liberty and justice: The legal Foundations of BritishConstitutionalism (Oxford:Oxford university press, 1995) 143.2  Raz, J.

 The rule of law and its virtue.1977 93 law quarterly reviewp.211,212,222.

3 A.V.Dicey, Introduction to the study of law of theconstitution (10th edn, London:Macmillan and co, 1959), pp. 202-2034 Raz, J.  Therule of law and its virtue.1977 93 law quarterly review p.

211,212 5T.R.S Allan,Law,Liberty and justice: The legalFoundations of British Constitutionalism (Oxford:Oxford university press, 1995),p.1436 J.Finnis, Natural Law and NaturalRights (Oxford University Press 1980) , p.

2707 Sir Edward Coke (1572-1616) 12Co Rep 638  Khazan,O. (2017). Is the British Royal Family Worth the Money?. online TheAtlantic. Available at:https://www.theatlantic.

com/international/archive/2013/07/is-the-british-royal-family-worth-the-money/278052/Accessed 10 Dec. 2017.9A and others v Secretary of state for the homedepartment UKHL 56 2004 7410A.V.

Dicey, Introduction to the study of law ofthe 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-12532956Accessed 10 Dec. 2017. 12 Milne, O. (2017). TheWales 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-12532956Accessed 10 Dec. 2017.13 Citymetric.com. (2017).

 Londonstill generates more than twice the tax revenue than the entire NorthernPowerhouse region | CityMetric. online Available at:http://www.citymetric.com/politics/london-still-generates-more-twice-tax-revenue-entire-northern-powerhouse-region-1235Accessed 10 Dec.

2017.

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