The rule of law- public

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Rule of law

Rule of Law- statutory recognition- s1 Constitutional Reform Act, important concept of constitutionalism, political principle- one that governs our politicial systems- realised to some degree, difficult to define, government according to law not men.

1) Dicey's doctrine of the Rule of Law

2) A 'formal' conception?

3) a 'substantive' conception?

Diceys Doctrine of the Rule of Law- 1) absense of arbitrariness 2) equality before the law 3) secured through common law. 

1) absense of arbitrariness- 'no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land...absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power and excludes the existance of arbitrariness, of prerogative, or even of wide discretionary authority by the governement'- Dicey 

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Dicey 1

Two strands to this limb- 1) governmental action must have legal basis 2) predominance of regular law. Entick v Carrington 1765 and Cf Liversidge v Anderson 1942. 

Discretion has the potential to interfere with the rule of law. In some cases the rule of law requires discretion- different facts for different cases. 

Dicey's Limb 2- Equality before the Law- 'not only that with us no man is above the law, but that here every man whatever be his rank or condition is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals, equality before the law or the equal subjugation of all classes to the ordinary law of the law administered by the ordinary courts.'- Dicey. Based on human equality, everyone should be subject to the same rule of law. Eg police officers that break the law should be dealt with in the ordinary way. Entick v Carrington 1765 and M v Home Office 1994. 

Exceptions to the general principle of equality in the law- S20 State Immunity 1979, Art 9 Bill of Rights 1689, and Diplomatic Priviledges Act 1964.

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Diceys third limb

Secured by the common law- 'we may say that the constitution is pervaded by the rule of law on the ground that the general principle of the consitution (right to liberty, right to public meeting etc) are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the courts... with us the law of the constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequences of the right of individuals as defined and enforced by the courts.'- Dicey. No legal declaration of rights, rights arise throughout operation of common law.Judges in cases secure individual freedom. The law of the constitution isnt the consequence of human rights. The law is the source of the rights.

A formal conception of the rule of law- People must be ruled by rule, government ruled by law,even officials. Dicey- state power must have law, formal equality and common law. Many people disagree on these principles.

Joseph Raz is prominent in this area- 'if law is to be obeyed, it must be capable of guiding the behaviour of its subjects. It must be such that they can find out what it is and act on it.' - JR The Rule of Law and its Virtue.  Less about content and more about how the law is passed. 

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Formal conception

'this is the basic intution from which the doctrine of the rule of law derives, the law must be capable of guiding the behaviour of its subjects. It is evident tha tthis conception of the rule of law is a formal one. It says nothing about how the law is to be made, by tyrants, democratic majorities, or any other way, it says nothing about the fundamental rights, about equality and justice.'- JR The rule of law and its virtues 

A formal conception- 8 principles for a functioning legal system- 

  • the law should be general, prospective, open and clear
  • The law should be relatively stable
  • making of particular rules should be guided by open, stable, clear and general rules
  • the independence of the judiciary must be guaranteed (impartial, independent of gov)
  • the principles of natural justice must be observed (fair hearing, know charges etc)
  • the courts should have the power of review over implementation of other principles (judicial review)
  • courts should be easily accessible
  • discretion of crime preventing agencies should not be allowed to pervert the law (need to be lawful and certain and predictable)
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Formal conception

Non retrospectivity- Phillips v Eyre 1870, Waddington v Miah 1974, Burmah Oil v Lord Advocate 1965 and R v R 1991.

Limitation to the formal conception? R v IRC exp Rossminster 1980

Substantive rule of law- focused on the content of the law. Should do Raz's 8 things but should also have fundamental values such as human rights. Key writers are Ronald Dworkin, TRS Allan and John Laws. 

'it assumes that citizens have moral rights and duties with respect to one another, and political rights against the state as a whole. It insists these moral and political rights be recognised in a positive law so that they may be enforced upon the demands of individual citizens through courts.It does not distinguish between the rule of law and substantive justice, on the contrary it requires, as part of the ideal of law, that the rules in the rule book capture and enforce moral rights' Dworkin Political judges and the rule of law. 

'acccept that it has formal attributes but takes the doctrine further... the concept provides a foundation for those rights which are used to distinguish between 'good law' which comply with such rights and 'bad laws' that do not' - Paul Craig Public Law

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substantive conception

Jackson v Attorney General 2005- Lord Hope 'the rule of law enforced by our courts is the ultimate controlling factor on which our constitution is based.' - suggests that morals may be a reason to strike down an act of Parliament. Lord Steyn 'the classic account given by Dicey of the doctrine of supremacy of Parliament , pure and absolute as it was, can now be seen as out of place in a modern UK' 

Formal - the law has certain minimum requirements

Substantive- the law has certain minimum requirements, plus law has a moral requirement, must not interfere with the rights of individuals, constitutional sovereignty. 

Political constitution- parliamentary sovereignty, political model of rights protection (HRA 1998) and formal conceptino of the rule of law.

Legal constitution- constitutional sovereignty not parliamentary sovereignty, legal model of rights protection s3 HRA, sustantive conception of the rule of law.

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