The Rule of Law

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  • Created by: Calgary
  • Created on: 11-05-12 19:14

The Rule of Law

  • A constitutional principle meaning power allocated through law. The state may not exercise arbitary powers. Can only act in accordance with pre-announced legal powers.

Widely-accepted principles from R of L:

  • Government under the law - idea of formal equality. Concerned with application and enforcement of law. Laws must be applied equally, without irrational bias or distinction. That said, it does not prohibit unequal laws, just the unequal or bias enactment of existing laws.
  • Laws must not require the impossible
  • Like cases must be treated alike
  • Laws cant be retrospective and must be sufficiently clear in order to guide conduct
  • Cases must be tried fairl (through independant judiciary) and with due process.
  • Courts must be reasonably accesible to citizens.
  • Courts must have powers to review other public authorities forcompliance with the law (judicial revue)

R of L in the UK Con: Government action interfering with individual must be based on specific law:

  • Principle established in Entick v Carrington: Agents of King broke into house of Entick and removed certain papers. Found no specific legal authority justified action, therefore a common trespass.
  • But can be undermined by laws giving v wide discretionary powers to gov: warrants to allow entering of house by tax officers to remove anything thought to be evidence of tax fraud (R v Inland Revenue Commissioners) - warrants upheld by H of L although Lord Scarman commented: ' a breathtaking inroad upon the individual's right of privacy and right of property'.
  • European Convention on Human Rights: Art 2, 5 and 8-11. Interference with these rights must be 'prescribed by' or 'in accordance with' the law.

The Prerogative: A gap in the R of L?

The Nature of Prerogative Powers:

  • Source lies in custom - residual powers of the crown. 'The prerogatives are recognised rather than created by the common law, for their source is in custom.' (Munro)
  • Also disputed 'third source' powers: crown has all incidental powers necessary to carry out its functions - raises problem for R of L - customary legal powers whose number and scope unclear. Parl doesn't even have a right to know what these powers are, and Ministers have said that it would be impossible to create full and precise list of them. 'At the heart of the British Constitution there is a kind of constitutional black hole'
  • Distinguish between prerogative acts and prerogative legislation - 'Orders in Council made under prerogative powers are technically primary legislation, but are not subject to parliamentary consent or scrutiny' (Moules)

Do prerog powers conform


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