Rule of Law

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  • Rule of Law
    • Definition
      • List of essential characteristics relating to law and legal process which exist in a good constitutional system
        • Laws should apply equally to all, adequate protection of fundamental rights
    • Content free or content rich
      • Content free - Joseph Raz - should be about procedures
        • Laws prospective, open and clear, stable, natural justice served, review powers, accessible
          • Rule of Law designed to minimise harm to freedom in dignity which the Law may breach
            • It is possible to say an evil legal system could adhere to the rule of law
              • Formal equality matters and not social or economic equality
      • Content rich - Dworkin
        • Rule book conception - act in accordance with rules no matter what they are
          • Rights conception - Citizens have moral rights against each other and the state
            • Three dimensions of failure of rights conception - state fails in scope of right, decline to enforce rights against self, fail in accuracy of rights
              • A good system will have a mixture of both rule book and rights conception
    • Dicey and critics
      • No man punishable unless he breaches law, no man is above the law
        • Thinks constitution just concerned with individual rights
          • Discretionary powers will make socially progressive goals
    • Sceptical Views
      • Rule of law should not be extended beyond ensuring criminals are punished and powers are not overstepped
    • Protection of the rule of law
      • Judiciary
        • Common law rights and freedoms
          • Judicial review: illegality, irrationality and impropriety
            • Rights flow from decisions of the court - right to life, fair hearing
        • Tort law
          • People are free to act unless their actions interfere with other people's rights
            • Entick v Carrington - right to secure property protected from trespass
              • Problem is if there is no cause of action in tort the right will not be protected - Malone v Met Police
        • Criticisms of common law
          • Unable to deal with situations where Act abolishes right previously recognised by court
            • Can only provide protection in certain circumstances - in Entick only trespass made it unlawful
              • Common law evolved to protect individuals in a liberal economic system
                • Legal rights rather than actual rights (parties have freedom to contract but this doesn't stop wage slavery)
                • Erratic nature of judgments - Liversidge v Anderson - judges typically conservative
        • Statutory Interpretation
          • The principle of legality - examines when PA claims to have a right conferred by statute to interfere with common law right
            • Pierson
      • Parliament
        • Parliamentary Supremacy means Parliament has the last say on the validity of provisions
          • Procedures in place to ensure Acts comply with the rule of law
            • Courts role limited when Parliament does enact legislation which is not rule of law compliant
              • R v Davis
      • Government: Lord Chancellor
        • Special responsibility for ensuring compliance with rule of law principles
          • Post removed by Tony Blair
            • Lawyer better at protecting rule of law?
              • In government, the LC ensured the cabinet took action in accordance with law
            • Why was Lord Irvine replaced?
              • Disguised as upholding separation of powers
          • Statutory reference to the rule of law
            • Constitutional Reform Bill should reference rule of law
              • The Act does not adversely affect - the existing principle of the rule of law or the LC's existing role in relation to the principle
                • Continues with existing standard and does not infringe upon chancellor's duty
              • Select committee's definition
                • Government must be able to point to some basis for its actions that is regarded as valid by the relevant legal system
                  • Legal rules should be capable of guiding one's conduct - variety of criteria
                    • Judiciary uphold the rule of law

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