BPP SG Ch 5: Rule of Law Flashcards
What is the basic principle of ‘rule of law’?
- principle that those exercising a governmental function should not be able to exercise power arbitrarily but should be subject to legal controls
What recent case revolved around the issue of the rule of law?
R (on the application of Corner House Research) v Director of the Serious Fraud Office
Why did the Corner House Research case relate to the rule of law?
- Divisional Court initially concluded that the SFO surrendered to an external threat from the government of Sauid Arabia
- this ran contrary to the principle of rule of law
- HoL concluded the director of the SFO had the right to decide protecting the public interest was more important
Which modern authority has provided the most clarification as to the meaning of the rule of law?
Lord Bingham
What is the formal view of the rule of law?
- that laws must adhere to procedural requirements for government to work under the law
- nothing to do with morality
- must allow citizens to always know their position and relationships within society
Who is the key proponent of the formal view of the rule of law?
Joseph Raz
What is the substantive approach to the rule of law?
- law must contain some internal morality for it be a legal system
- a regime which commands authority without morality may be a governmental system but not a legal system
- legal system must serve the interests of the population, not just those of the regime
Who is the key proponent of the substantive view of the rule of law?
Leon Fuller
What three characteristics of ‘rule of law’ did Dicey put forward?
1) supremacy of regular law over arbitrary power
2) equality before law
3) no higher law other than the rights of individuals as determined through the courts
What happened in Kelly v Faulkner
- Northern Ireland Court of Appeal refused to accept GB soldiers should be exempt from normal requirements for a legal arrest
- executive attempts to achieve this judged to run contrary to the rule of law
How does the rule of law view retrospective lawmaking?
- generally retrospective laws are viewed as incompatible with the rule of law
- retrospective criminal legislation contrary to ECHR
- exception for actions which were criminal at the time according to “the general principles of law as recognised by civilised nations”
How does the rule of law relate to discretionary or statutory powers?
- statutes generally deemed to sufficiently adhere to the requirements for formal legality
- some instances where exercise of statutory powers seen as incompatible with rule of law
- eg IRC v Rossminster
How has the courts’ attitude towards grants of discretionary powers changed during wartime? What case demonstrates this?
- Liversidge v Anderson
- more reluctant to interfere
- HoL unwilling to strike down the Home Secretary’s power to imprison those he thought were a threat during WW2
- HoL ignored the obvious meaning of the words in the statute in order to avoid demanding HS show evidence for imprisonment
How does the rule of law relate to Parliamentary sovereignty?
- supports it by checking executive power; requires executive to act only on teh basis of legitimate authority ie Parliament
- acts as a check on Parliamentary sovereignty itself by limiting Parliament’s power through the courts.
- courts interpret statutes and incorporate notions of justice and fairness
In what case and how did the rule of law limit Parliamentary sovereignty?
- R v Sec of State for Home Dept ex p Simms
- if MPs want to enact legislation contrary to fundamental human rights they can, but they must do so openly intead of by using vague, general or ambiguous words.
