Thomas Paine

Thomas Paine was a great Englishman - who played an influential role in both the American and French revolutions. Sadly, those who decree what history is taught in schools - or what we can watch on TV - don't like to pay much attention to the glorious radical tradition in Britain.

I've long been an admirer of Thomas Paine. Over the summer I published some posts about one of his great works - "Common Sense" (the series began on 28th July).

If listening to Common Sense makes you want to know more here are some suggestions for Further Reading

The Rule of Law

Beware of treating this as a wishy-washy general idea about acceptable legal behaviour. There are some very specific meanings to the phrase.

Dicey proposed three aspects

(1) No person is punishable except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land
- therefore there should be no 'arbitrary' justice
- behaviour should be prohibited in advance - not after the event
- people we think might have mischievous intent shouldn't be locked up because they might commit a crime (despite the exasperation of certain Home Secretaries that the Courts are reluctant to deport or intern people who aren't convicted of anything, but are clearly evil.)

(2) No person is above the law
- the ordinary law of the land applies to everyone, and as Barnett comments, "there must not only exist a system of courts available locally but the cost of having recourse to the courts must be such that there is real - rather than symbolic - access to the courts. For the law to be attainable, adequate legal advice and assistance must be provided at a cost affordable by all." (Once upon a time....)

(3) the general principles of the constitution are the result of ordinary cases in which rights have been determined.
- Dicey meant that in the UK we don't have special courts for Administrative Law, but the ordinary courts applied the same approach whether they were dealing with bureaucrats or ordinary citizens involved in disputes with other citizens. (Perhaps a bit quaint in this era of judicial review and multi-national corporations.)

NOTE - I've tried to be deliberately provocative - how who you respond to such opinions in an exam question? Reasoned evaluation is the key - and examiners look for it. You can practice by looking at newspaper headlines in the coming week - apply the "Rule of Law" to what the editor or the politician is arguing.

Allen and Thompson deal with the concept in Chapter three of their Cases and Materials on Constitutional and Administrative Law - 10th Edition



There are some useful cases to reflect upon - Prohibitions del Roy (1607); Entick v Carrington (1765)R v IRC ex parte Rossminster Ltd; R v Horseferry Road Magistrates Court ex parte Bennett; Phillips v Eyre; In re M (1993) - worth making brief casenotes on!

There are also some useful questions to consider as you revise.

Do reflect on how the concept of the Rule of Law relates to other constitutional principles.

There's an excellent book on the Rule of Law and related subjects by the late Lord Bingham.

The New Season

As long term readers of this blog will know (and as typing 'American Football' into the search box on the right hand side of this blog will reveal), I'm a big fan of American Football. [that doesn't mean I don't enjoy soccer - as Stadium MK is just a short walk away, and MK Dons are my local team - I enjoy going to watch them play in person].

Today will see the start of the 2013 season. The Thursday after Labor Day is the traditional starting day for the new season - after the pre-season games in August. The Ravens and the Broncos will set the new season off. Sadly, here in the UK, we have the problem of the time difference with the USA. It will actually be the early hours of Friday here. I will however watch the game - at a decent hour - because of my subscription to NFL's Game>Pass. Of course my loyalty is - you'd expect this in a blog called 'Washminster' - to the Washington Redskins.

Last season they played at FedEx field during my stay in Alexandria, and I enjoyed seeing them in person for the first time. I'll be cheering them on again in 2013 - starting on Tuesday morning. (the curse of the Monday Evening game!).

What do I like about the game? It's like chess with real people - without the need to stay silent! There can be some fantastic plays - as the ball goes flying over the heads of players until it is caught by a well placed attacker. At other times a nimble runner weaves his way around the seemingly impregnable wall of defenders. A quarterback can be getting ready to throw a potentially match winning throw when he is pounced upon - or the ball is intercepted as it flies through the air. It's a great game - it might take a little while for Brits to get used to, but it's worth it!.

There's a beginner's guide here.

What's your view?

...on the doctrine of precedent?

Does it provide -

• Consistency?
• Certainty?
• Efficiency?
• Flexibility?

Or is it promote

• Inflexibility?
• Uncertainty?
• Fixity?
• Unconstitutionality?

[Slapper and Kelly briefly outline the arguments on  pages 138-139 and 144-145 of their book "The English Legal System - 13th Edition].




Other books develop these - and put other arguments. If you are taking a Law Degree exam (English Legal System - or the Open University's W200 course), it is worth summarising the arguments about the strengths and weaknesses of the doctrine of precedent. Then prepare short arguments - one version arguing for the utility of the doctrine and other arguing that it has more disadvantages than advantages. How would you put across each argument? How would you anticipate objections? Should you face an invitation in an exam to discuss precedent you'll have developed the knowledge and flexibility to answer it. Remember, there is no right answer. An examiner is looking for evidence of critical evaluation; and an ability to present a logical argument.

You should also be able to explain the "mechanics" of the doctrine - can you describe and explain

• the significance of law reporting?
• the rules about which courts bind which?
• when previous decisions are not binding? [and Young v Bristol Aeroplane Co Ltd]
• 'Ratio decidendi'?
• 'Obiter dictum'?
• Overruling?
• the Practical importance of Precedent?

You might find it useful to review these Washminster posts.
http://washminster.blogspot.co.uk/2010/10/english-legal-system.html
http://washminster.blogspot.co.uk/2012/02/what-kind-of-law.html

Separation of Powers

A key concept in Constitutional Law - and not just for those countries that have the concept at the heart of their constitutional structure.

In the USA powers are expressly allocated to the Executive; and others allocated to Congress (the Legislature) and to the Supreme Court. Article I Section 6 concludes "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emouluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office."

Similarly, in France - Article 23 states "Membership of the Government shall be incompatible with the holding of any Parliamentary office..."

According to the House of Commons Library "In the UK, in theory a minister does not have to be a member of either House of Parliament.  In practice, however, convention is that ministers must be members of either the House of Commons or House of Lords in order to be accountable to Parliament. From time to time, Prime Ministers appoint non-parliamentarians as ministers. In recent years such ministers have been appointed to the House of Lords." The rational is that "for parliamentary scrutiny to work ministers must have a seat in either chamber."

The key points to remember about the doctrine are

• It's origins - the classification of government powers into Legislative; Executive and Judicial goes back to Aristotle [The Politics]. Montesquieu stressed that "when the legislative powers are united in the same person, or in the same body of magistrates, there can be no liberty...Again, there is no liberty if the power of judging is not separated from the legislative and executive." and

• that the modern interpretation of the doctrine is that a person should not hold power in more than one of the branches of government (compare the US, France and UK)
• that the objective is to create countervailing governmental power centres which check and balance each other and thereby inhibit the abuse of power.
• what the principal institutions are of the Executive; Legislature and Judiciary
• its impacts on
• the Executive and the Legislature
• the Executive and the Judiciary
• the Judiciary and the Legislature

(it may be helpful to think of a triangle and link to each side the main rules)

• How the rules have changed in recent years - in the UK it is important to note
• Art 6 ECHR
• Constitutional Reform Act 2005
• creation of the Judicial Appointments Commission
• development of 'Judicial Review'
• Human Rights Act 1998
• House of Commons Disqualification Act 1975
• the sub judice rules of both Houses of Parliament (Commons; Lords)
• How it relates to other key doctrines - the Rule of Law; the Supremacy of Parliament; the doctrine of Ministerial Responsibility.

When it comes to exams - the most common problem is failure to answer the question properly. Don't answer a question about 'separation of powers' with "everything you know about SoP" - because questions often focus on the relationships between particular branches - and ask you to evaluate the level of separation in practice.

You may also find the post and mindmap in an earlier post on Separation of Powers useful. It can be accessed here.

There are some excellent explanations and diagrams in the book below