Public Law - Rule of Law I - Intro and Traditional views

  • Created by: Alasdair
  • Created on: 13-11-20 01:59
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  • Rule of Law I - Intro and Traditional views
    • Definition of Rule of Law according to Lord Hope in R (on the application of Jackson) v Attorney-General
      • Rule of Law enforced by courts as being 'the ultimate controlling factor on which our constitution is based'.
    • Traditional Definition of Rule of Law according to AV Dicey
      • 1. 'No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of the law established in the ordinary legal manner before the ordinary courts of the land...It means...the absolute supremacy...of regular law as opposed to the influence of arbitrary power...'
        • Present-day values/constitutional requirements
          • Legal certainty
            • Citizens should be able to rely on laws that are both made and set out clearly
            • No arbitrary exercise of power
              • Where Government disregards law and acts in any manner is sees fit
          • Personal liberty
            • Citizens should be detained and subject to punishment only if they have broken the law
          • Due process of law
            • Citizens have right to fair procedures for determining civil or criminal liability
      • 3. '...the general principles of the constitution (for example, the right to personal liberty, or the right of publlic meeting) are with us as a result of judicial particular cases brought before the courts.'
        • Dicy sees court as protectors of individual liberty, thereby developing constitutional principles through 'ordinary' judicial decisions
          • Links to case law being an important source of constitutional law
    • Observing rule of law should ensure:
      • 1. Government is prevented from exercising arbitrary power (because 'regular' law is supreme)
      • 2. Government can be held to account for its actions
        • (through process of judicial review, in which courts ensure Government does not exceed or abuse powers which has been granted)
      • 3. law is set out clearly for all citizens and is made properly following set procedure
      • 4. law does not operate retrospectively
        • ie. someone should not be punished for an act that was not a crime at time he carried out act, if that act subsequently becomes a crime.
      • 5. there is equality before law for all citizens
      • 6. there is equal access to law and Government or state has no special exemptions or 'get-outs'
      • 7.  citizens have a means of legal redress for their grievances
      • 8. independence of judiciary is maintained
        • thereby preserving separation of powers and preventing the Government from exercising its powers in an arbitrary way


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