AQA A Level Law (7162): Rule of Law, Parliament, Morality and Justice – Study Guide

This guide covers four parts of AQA A-level Law (7162) section 3.1 that are mostly tested through essays: the rule of law, parliamentary law making, law and morality, and law and justice. Because section 3.1 appears on all three papers, these are among the most examined ideas in the course. Each part below states what the specification requires, gives the examples and authorities to use, and shows how to evaluate. The rest of section 3.1 is in the Nature of Law and the English Legal System study guide.

Where this fits in the specification

The specification lists the nature of law (including law and society, law and morality, law and justice), the rule of law, law making, and the legal system. The topics on this page supply the theory used across the whole course: a criminal law essay on consent, a tort essay on liability without fault or a human rights essay on restrictions will all draw on morality, justice or the rule of law. Practise linking them to the substantive law you study.

What is the rule of law?

The specification asks for a basic understanding of the constitutional doctrine of the rule of law and its application to law making, the legal system and substantive law, through three ideas:

1. No person shall be sanctioned except in accordance with the law. The state may act against a person only with legal authority. In Entick v Carrington (1765) officers who searched a house under a warrant with no legal basis were liable in trespass.
2. Equality before the law. The same law applies to everyone, including the government. In A v Secretary of State for the Home Department (2004) the House of Lords held that detention without trial of foreign terror suspects only was disproportionate and discriminatory.
3. Fairness and clarity. Laws should be public, clear and not retrospective, and applied through fair procedures.

The classic statement is A.V. Dicey’s in Introduction to the Study of the Law of the Constitution (1885). Lord Bingham’s The Rule of Law (2010) set out eight principles, including access to justice and compliance with international law. Section 1 of the Constitutional Reform Act 2005 states that the Act does not adversely affect the rule of law or the Lord Chancellor’s role in relation to it.

Applying it:

• Law making: Parliament can legislate retrospectively, as with the War Damage Act 1965, which reversed the House of Lords’ decision in Burmah Oil v Lord Advocate (1965) — legally valid but in tension with clarity and fairness.
• The legal system: access to justice is part of the rule of law. In R (UNISON) v Lord Chancellor (2017) the Supreme Court quashed employment tribunal fees because they prevented people from enforcing their rights.
• Substantive law: judge-made change can operate retrospectively, as in R v R (1991), where marital immunity from rape was removed. The certainty principle in criminal law (maximum certainty, no retrospective liability) applies the rule of law directly.

How does Parliament make law?

Green and White Papers

A Green Paper is a consultation document setting out government proposals for discussion. A White Paper sets out firmer proposals for legislation, after consultation.

The formal legislative process

Bills may be public (affecting the general public, usually government Bills), private (affecting a particular person, body or locality) or private members’ (introduced by backbench MPs; the Abortion Act 1967 began as one). A Bill normally passes through first reading, second reading (main debate), committee stage (detailed scrutiny), report stage and third reading in each House, then receives Royal Assent. Under the Parliament Acts 1911 and 1949 the Commons can pass most Bills without the Lords’ consent after a delay of about a year, as happened with the War Crimes Act 1991 and the Hunting Act 2004.

Influences on Parliament

Influence	Example	Advantage	Disadvantage
Political parties	Manifesto commitments delivered by the governing party	Democratic mandate	Short-term, partisan priorities
Law Commission	Reports leading to reform (see law reform)	Expert and independent	Many reports not implemented
Pressure groups	Snowdrop Campaign after Dunblane, leading to the Firearms (Amendment) Act 1997	Raise issues ignored by parties	Unequal resources; loud minorities
Media	Campaigning after high-profile cases, such as “Sarah’s Law” leading to the child sex offender disclosure scheme	Speed and public awareness	Knee-jerk, poorly drafted law, as critics said of the Dangerous Dogs Act 1991
Public opinion	Changing attitudes behind the Marriage (Same Sex Couples) Act 2013	Keeps law in step with society	Can be volatile or ill-informed

Parliamentary supremacy and its limits

On Dicey’s account Parliament may make or unmake any law, no Parliament can bind its successors, and no court can set aside an Act. Courts will not examine how an Act was passed (Pickin v British Railways Board, 1974), and Acts passed under the Parliament Acts are valid (R (Jackson) v Attorney General, 2005). Limits: while the UK was in the EU, courts could disapply Acts conflicting with EU law (R v Secretary of State for Transport, ex p Factortame, 1990), a limit removed by the European Union (Withdrawal) Act 2018; under the Human Rights Act 1998 courts may issue declarations of incompatibility; devolution to Scotland, Wales and Northern Ireland is legally reversible but politically very hard to reverse; and in practice a government with a majority controls the timetable.

Law and morality

The distinction. Law is a set of rules made by a recognised authority and enforced by the state; morality is a code of right and wrong enforced by conscience and social pressure. Moral rules develop gradually, are often unwritten and vary between groups; legal rules are made at an identifiable time and can change overnight. In a pluralist society, people of different faiths and none hold different moral views on issues such as abortion, euthanasia and drug use, so there is no single moral code for the law to follow.

The relationship and its importance. Much law reflects morality (murder, theft), some law is morally neutral (driving on the left), and some immoral conduct is lawful (lying in most situations). Law gains legitimacy when it reflects widely shared values; positivists such as Hart nonetheless argue law and morality are logically separate, while natural lawyers such as Aquinas argue an unjust law is not true law.

The legal enforcement of moral values. The Wolfenden Report (1957) recommended that homosexual acts between consenting adults in private should no longer be crimes, leading to the Sexual Offences Act 1967. Lord Devlin argued that society is held together by a shared morality and may use the law to protect it; Professor Hart, following Mill, argued the law should prevent only harm to others. Cases show the courts enforcing moral values: Shaw v DPP (1962) recognised conspiracy to corrupt public morals; R v Brown (1993) held consent no defence to actual bodily harm inflicted in private sadomasochism. Other cases show law changing with morality: Gillick v West Norfolk and Wisbech AHA (1985) on contraceptive advice to under-16s, Airedale NHS Trust v Bland (1993) on withdrawing treatment, and R v R (1991) on marital rape.

Law and justice

The meaning of justice. Justice is the idea of fairness, but writers disagree about what it requires.

• Aristotle: distributive justice (fair allocation of benefits and burdens) and corrective justice (putting right a wrong between two people, as tort damages do).
• Utilitarianism (Bentham, Mill): the just law produces the greatest happiness of the greatest number.
• John Rawls, A Theory of Justice (1971): just principles are those chosen behind a “veil of ignorance”, without knowing one’s own position in society.
• Robert Nozick, Anarchy, State, and Utopia (1974): justice lies in respecting entitlements to property fairly acquired, which limits redistribution by the state.

The extent to which the law achieves justice. In criminal law, safeguards include the burden and standard of proof, jury trial and the appeal courts; but miscarriages of justice such as the Birmingham Six, whose convictions were quashed in 1991, led to the Criminal Cases Review Commission under the Criminal Appeal Act 1995. The Criminal Justice Act 2003 allowed a retrial after acquittal where there is new and compelling evidence for serious offences. In civil law, corrective justice is delivered through damages and injunctions, but cuts to civil legal aid under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 leave many without representation, and costs and delay deter claims. Substantive rules can also produce injustice, for example the mandatory life sentence for murder covering mercy killings.

Worked example: planning an essay

Question: “The law should only enforce moral values where conduct causes harm to others.” Discuss.

1 Define law and morality; note pluralism
2 Hart (harm principle) v Devlin (shared morality)
3 Wolfenden 1957 and Sexual Offences Act 1967 -> Hart in action
4 R v Brown 1993, Shaw v DPP 1962 -> Devlin-style enforcement
5 Gillick, Bland -> courts adapting to changing morality
6 Conclude: the trend follows Hart, but harm is itself contested

Common mistakes

• Stating the rule of law only as Dicey’s three points, without the specification’s wording or any application.
• Describing the legislative process without evaluating the influences on Parliament.
• Saying the Lords can veto a Bill.
• Recounting Hart and Devlin without applying them to cases.
• Naming justice theorists without asking whether the law actually achieves justice.

Frequently asked questions

What are the three elements of the rule of law in the AQA specification? No person shall be sanctioned except in accordance with the law, equality before the law, and fairness and clarity. You must also show how they apply to law making, the legal system and substantive law.

What is the difference between a Green Paper and a White Paper? A Green Paper is a consultation document inviting views on possible proposals. A White Paper sets out the government’s firmer proposals for legislation.

What was the Hart–Devlin debate? After the Wolfenden Report (1957), Lord Devlin argued that the law may enforce a society’s shared morality, while Professor Hart argued it should only prevent harm to others.

Does the law achieve justice? Partly. Procedural safeguards and corrective remedies promote justice, but miscarriages of justice, limited legal aid and rigid rules such as the mandatory life sentence show its limits.

Check your understanding

1. Which case shows that state officers need legal authority to act? Entick v Carrington (1765).
2. Which Acts let the Commons pass a Bill without the Lords’ consent? The Parliament Acts 1911 and 1949.
3. What did the Wolfenden Report recommend? That homosexual acts in private between consenting adults should no longer be criminal.
4. What is Rawls’s veil of ignorance? Choosing principles of justice without knowing your own place in society.
5. Why were employment tribunal fees quashed in UNISON? They prevented access to justice, which the rule of law protects.

Official syllabus

AQA A-level Law (7162) specification, version 1.0, section 3.1 The nature of law and the English legal system — aqa.org.uk.