since should keep the Formal rule of law system

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 tourism1
so are unlikely to be removed due to their economic benefits to the UK per

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.

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                                                                                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
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”3. 
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

1  Khazan,
O. (2017). Is the British Royal Family Worth the Money?. online The
Atlantic. Available at:
Accessed 10 Dec. 2017.

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

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