RUle Of law

  • Created by: jesskeayy
  • Created on: 06-05-19 15:54
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  • ROL and Parliamentary Sovereignty
    • Rule of Law- no one is above the law, regardless of their position in society
      • Law must be accessible and so far as possible intelligible, clear and predictible
      • Must be clearly defined and accessible to those in society
      • Legal questions should be resolved by application of law, not through the exercise of discretion
      • Law of the land applies equally to all
      • Public servants must exercise only the powers conferred to them in good faith, fairly and with the purpose of using how they were intended
        • Should only be used when necessary to enforce justice
      • Law must give adequate protection to fundamental rights
      • Raz- rule of law is a social philosophy, a political ideal found in most legal systems, to what degree is different in all
        • Should be seen in formal terms. Democratic societies may not always match with the ROL
        • Laws should be capable of guiding one's actions in order to plan one's life.
        • Laws should be prospective, relatively stable, have clear rules, enforced by an independent judiciary
        • Persons should have access to a court system and law enforcement shouldn't undermine the purpose of the rules
      • Dicey- rule of law- no man is punishable/ can be lawfully made to suffer except for when there is a breach of law
        • Criticisms- Dicey underestimated the existence of discretionary powers that existed when writing
          • The discretionary powers at the time were necessary, as a legit consequence of the 19th century growth of governmental powers
    • Parliamentary Sovereignty- cluster of rules about the legislative competence of UK parliament, how courts should deal with laws and powers of courts to consider if acts if laws are valid
      • Key rules: 1. legislative competence over UK parliament
        • Parliament may make laws on any matter, with regard for EU law and ECHR regulations
      • 2. Express repeal & entrenchment
        • Any provision in any Act may be repealed or amended by an Act enacted at a later date
      • 3. Implied repeal
        • Where there is conflict between two provisions, the provision made at a later date is to be enforced,
      • 4. Jurisdiction of courts over Acts
        • No court/ tribunal in UK shall call into question an Act as a source of law; except where laws are incompatible with EU law
      • Acts cannot be entrenched, so that other parliaments cannot repeal it
      • BRB v Pickin [1974]- Pickin owned land that became compromised by BRB due to an Act. P argued Act was unlawful, this couldn't be questioned by the courts
      • Cheney v Conn [1968]- Taxpayer challenged a provision of Finance Act 1964. Provision was not to be questioned, as international laws at the time weren't supreme
      • R v Secretary of State for the Home Dept. ex parte Simms and O'Brien [1999]- parliament can choose to legislate contrary to HR principles. HRA will not detract from power to do so
      • AXA General Insurance v HM Advocate [2011]-
      • Sources- statute law, common law and constitutional conventions

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