Rule of law

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  • Created by: Nikki
  • Created on: 30-04-15 20:42

Defining the rule of law

One approach = list of essential characteristics relating to law and legal process that ought to exist in a good constitutional system

Bingham --> 'the core of the existing principle is...that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts'

8 sub-rules

  • Law must be accessible and so far as possible intelligible, clear and predictable
  • questions of legal right and liability should be resolved by application of law and not exercise of discretion
  • laws should apply equally to all, save to extent that objective differences require differentiation
  • ministers and public officers at all levels must exercise powers conferred on them in good faith, fairly, for purpose for which powers were conferred, without exceeding the limits of such powers and not unreasonably
  • law must afford adequate protection of fundamental rights
  • must be means for resolving civil disputes
  • requires compliance by state with obligations in international law as in national law
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Content free

About form of law and procedures by which it is made

Joseph Raz

  • all laws prospective open and clear
  • law relatively stable
  • making of laws should be guided by open, stable, clear and general rules
  • independence of judiciary must be guaranteed
  • principles of natural justice must be observed
  • courts should have review powers over implementation of other principles
  • courts should be easily accessible
  • discretion of crime-preventing agencies should not be allowed to pervert the law

Evil legal system can comply with rule of law if conforms to required forms and processes

Little account of social and economic equality --> what matters is formal equality 

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Content rich

Ronald Dworking

'rule book conception'

  • power of state should never b exercised against individual except in accordance with rules set out in public rule book and available to all
  • all are regulated by the same rules
  • rules can only be changed in accordance with correct procedure
  • narrow approach --> substantive justice is an independent ideal

'rights' conception

  • moral rights and duties with respect to one another and political rights against state as whole
  • these rights must be recognised in positive law so they can be enforced in courts
  • substantive justice as part of the concept of the rule of law
  • several dimensions of failure
  • not necessary to create a just society because a government of wise and just officers will protect rights on its own initiative --> often dismissed as legalistic 
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Dicey view

Basics

  • general rules
  • equality before the law
  • expression of the common law

No man can be punished except for a breach of law established in the ordinary legal manner before the courts

No man is above the law

Constitution is pervaded by rule of law on ground that general principles of constitution are result of judicial decisions determining the rights of private persons

Government under Law

  • principle --> government must be able to identity a law that authorises its action
  • Entick v Carrington (1765)
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Sceptical views

John Griffith

  • when rule of law is extended beyond its basic definition then it is simply a political creation used in an ideological way

Martin Loughlin

  • since modern era law is universally acknowledged to be human creation, it cannot be placed above human will, so law therefore cannot be placed above a government of man
  • laws cannot be said to rule, because ruling is an action and laws in themselves do not act
  • rhetorical expression
  • intrinsic ambiguity
  • coherent formulation of general concept can be devised but it is entirely unworkable in practice 
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Practical protection: judiciary

Articulates common law fundamental rights, applies law of tort against public office-holders, interprets legislation in ways supportive of rule of law principles, and applies HRA in protection of rule of law

Common law rights and freedoms

  • JR grounds
  • common law protects some basic rights --> gives most of benefits of written constitution in terms of protection of rights but preserves parliamentary sovereignty

Tort law

  • people free to act unless actions interfere with rights of others
  • right is protected if it is recognised by law of tort
  • Entick v Carrington
  • if no cause of action exists the right will not be protected
    • Malone v Commissioner of Police --> phone tapping case
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Practical protection: judiciary (2)

Criticisms of common law

  • too weak --> expressly limited or abolished by an Act of Parliament
  • can provide protection only in certain circumstances
  • limits rooted in way in which CL has evolved to protect individuals within a predominantly liberal economic system --> formal rights and euqality rather than actual equality e.g. economic freedom = formal rather than actual equality
  • nature of judgments --> record of judges is very mixed --> many decisions have failed to protect rights
    • Liversidge v Anderson
    • GCHQ case
    • R v Deputy Governor of Parkhurst Prison, ex parte Hague
    • R v Sec of State for Home Dept, ex part Brind
    • (judges typically conservative --> bias reflected in decisions and types of rights which are protected)
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Practical protection: judiciary (3)

Statutory interpretation

  • legislation as protection of rule of law --> by setting up and maintaining court system
  • as challengin rule of law 
    • ouster clause in Asylum and Immigration (Treatment of Claimants, etc) Bill
    • cuts in legal aid in 2012
  • once legislation enacted, courts seek to protect rule of law through techniques of statutory interpretation --> principle of legality
  • presume Parliament doesn't intend to deprive people of common law rights e.g. access to courts
  • presume Parliament does not intend to enact legislation that would be inconsistent with UK international obligations, inc human rights treaties
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Practical protection: Parliament

  • power through legislation to protect rule of law and to undermine it
  • PS = final say on validity of provision in Act that offends rule of law
  • procedures that help ensure that Acts comply with rule of law principles, or if not then Parliament legislates knowingly and explciitly
  • If Act clearly enacts legislation in conflict with rule of law principles, role of courts is limited --> Parliament ma even limit/abolish fundamental rights recognised by common law
  • R v Davis
  • Parliament's sovereign power is not absolute and certain inherent consittutional limitations on its power exists
    • since P derives sovereignty from constitution, scope of its sovereignty is delineated by constitution and by basic principles of constitutional system 
    • P cannot claim sovereign power to subvert basic principles upon which its very sovereignty is based
    • e.g. cannot enact legislation contrary to essential notions of democracy or rights that are fundamental
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Practical protection: Government

LC special responsibility for ensuring compliance with rule of law principles --> changes to role due to CRA 2005

Is lawyer better at protecting rule of law? --> no legal requirement LC should be lawyer but strong convention --> LC not legal adviser --> some statements to HL Select COmmittee on Constitutional Reform Bill that not very important factor

Were Blair's dismissal of Lord Irvine and subsequent reforms actually based on personal/political differences but dressed up as constitutional problem of separation of powers?

Statutory reference to rule of law

  • difficult ot find balance
  • Act does not 'adversely affect' the principle of the rule of law or the LC constitution role in relation to principle 
  • continued difficulties in defining rule of law
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Limitations to rule of law

IRC v Rossminster (1980)

Malone v MPC (1979)

Burmah Oil v Lord Advocate (1965)

ABUSES OF RULE OF LAW?

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Rule of law today

Rule of law as constitutional principle?

  • Subject to PS?
  • Bi-polar sovereignty?
  • Common law constitutionalism?

Rule of law today

  • Rule by law 
    • qualities that inher in the idea of rule - general, public, prospective, clear, consistent, constant, rational
  • Rule of law
    • conditions of legitimate rule - constitutional regime that disperses power, maintains checks and holds power-wielders to account (on the basis of 'reason')
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