The Rule of Law
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- Created by: TabithaNash16
- Created on: 31-01-21 13:39
What does the rule of law support?
it supports democracy and its safeguarding against a dictatorship
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Why does the rule of law exist?
to restrain state power
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What did Tony Honore 1987 say about the existence of the rule of law?
"The Rule of Law exists when a governments powers are limited by law and citizens have a core of rights that the government are bound to uphold"
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What did Dicey say were the three features of the rule of law?
Equality before the law
No punishment without a distinct breach of law
Absence of arbitary powers
No punishment without a distinct breach of law
Absence of arbitary powers
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What does equality before law mean?
Everyone is subject to the same law no matter their rank or situation in society
Nqo person is above the law
The state can not act without sanction of the law
The state is accountable under the law for their actions
Nqo person is above the law
The state can not act without sanction of the law
The state is accountable under the law for their actions
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No punishment without the breach of law
What does article 7 state?
What does article 7 state?
"No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed"
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No punishment without the breach of law
What does article 5 state?
What does article 5 state?
this secures a right to liberty which can only be removed by a lawful arrest of conviction
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Punishment without infringement of the law
Common Law
What happened in the case of R v R 1992?
Common Law
What happened in the case of R v R 1992?
Defendant charged with attempted **** on his wife
At time of offence the couple seperated but no legal seperation existed and there were no divorce in place
The House of Lords overturned the maritmonial exception to **** and his conviction was up held
At time of offence the couple seperated but no legal seperation existed and there were no divorce in place
The House of Lords overturned the maritmonial exception to **** and his conviction was up held
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Punishment without infringment of law
Interpretation of statutes
What happened in the case of Smith v Hughes 1960?
Interpretation of statutes
What happened in the case of Smith v Hughes 1960?
Prostitutes were dancing on their balconies and in their windows to lure customers in
They were all charged with street offence for soliciting while in a public place, although they were in their private homes they were still on view to the public which
They were all charged with street offence for soliciting while in a public place, although they were in their private homes they were still on view to the public which
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What was said within the Belmarsh 9 case?
What sections were put forward?
What sections were put forward?
S.23 Anti-terrorism, Crime and Security Act 2001 provided that suspected terrorists could be held in prison indefinitely without trial
All 9 applicants were held under this category
The House of Lords held that the act was incompatible with Article 5 of
All 9 applicants were held under this category
The House of Lords held that the act was incompatible with Article 5 of
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What is freedom from arbitary power?
The states power must be set out in laws which are clear and certain
The rule of law advocates clearly defined powers rather than discretionary and arbitrary power
The rule of law advocates clearly defined powers rather than discretionary and arbitrary power
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What is one difficulty with arbitrary powers?
Statute law this requires interpretation (Smith v Hughes was arbitrary as they didnt know which way courts were going to go)
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What happened in the case of Shaw v DPP 1962?
defendant published a ladies directory (listed all the prostitutes and what they offered in the area)
there was no law that covered this at the time
The judge made the law on the spot which was conspiracy to corrupt public morals
there was no law that covered this at the time
The judge made the law on the spot which was conspiracy to corrupt public morals
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Criticisms of Diceys view of the rule of law
What was the dicretionary powers?
What was the dicretionary powers?
He did not anticipate the increased need for discretionary powers in the modern state and the need for legal control of such powers
Discretion is now seen as a necessary for the decision making required in a increasingly complex society
Discretion is now seen as a necessary for the decision making required in a increasingly complex society
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Criticisms of diceys rule of law
What does it mean by legal certainty?
What does it mean by legal certainty?
His explanation of legal certainty provides insufficient protection for individuals rights and freedoms - more concerned with the process
It provides no way of deciding whether a statute is exclusively restricts civil liberties
It provides no way of deciding whether a statute is exclusively restricts civil liberties
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Criticisms of diceys rule of law
What does it mean by equality?
What does it mean by equality?
His view of equality was very narrow
Modern concepts incorporate gender, race, sex, disability etc
His ignored the fact that large sections of society were excluded from defending action in court due to their economic situation or lack of skills
Modern concepts incorporate gender, race, sex, disability etc
His ignored the fact that large sections of society were excluded from defending action in court due to their economic situation or lack of skills
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What were a couple of things that Joseph Raz said about the rule of law and its virtue 1977?
Laws should be stable and not changed frequently
Laws should be prospective rather than retroactive
The discretion of the crime preventing agencies should not be able to pervert the law
Principles of natural justice should be observed requiring an open
Laws should be prospective rather than retroactive
The discretion of the crime preventing agencies should not be able to pervert the law
Principles of natural justice should be observed requiring an open
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What is the Constituional Reform Act 2005?
this is a relatively recent piece of legislation which demonstrates the continuing importance of the rule of law
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how do statutes uphold the rule of law and law making?
Laws are debated and challenged in both Houses of Parliaments
The chambers are not open to public
House of Commons is democratic
Debates are recorded and accesible by the public
The chambers are not open to public
House of Commons is democratic
Debates are recorded and accesible by the public
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how do statutes go against the rule of law and rule making?
They may be ambiguous and require interpretation
Parliament are able to make laws that infringe human rights
House of Lords is unelected and not accountable
Parliament are able to make laws that infringe human rights
House of Lords is unelected and not accountable
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How does common law uphold the rule of law and rule making?
Courts are open to the public
Set procedures are followed
Principles of natural justice are applied in the courts
Set procedures are followed
Principles of natural justice are applied in the courts
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How does common law infringe the rule of law and law making?
Laws made by common law are retrospective
Overruling and distinguishing of procedures creates uncertain laws
Courts are powerless to protect human rights in the event of conflict with legislation
Overruling and distinguishing of procedures creates uncertain laws
Courts are powerless to protect human rights in the event of conflict with legislation
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How does delegated legislation uphold the rule of law and law making?
Set procedures for making laws
The courts can review and strike down delegated legislation which limits the power of the executive
The courts can review and strike down delegated legislation which limits the power of the executive
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How does delegated legislation infringe the rule of law and law making ?
Law makers can be granted wide discretion
Some parts of delegated legislation do not require parliaments approval
Some parts of delegated legislation do not require parliaments approval
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Other cards in this set
Card 2
Front
Why does the rule of law exist?
Back
to restrain state power
Card 3
Front
What did Tony Honore 1987 say about the existence of the rule of law?
Back
Card 4
Front
What did Dicey say were the three features of the rule of law?
Back
Card 5
Front
What does equality before law mean?
Back
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