Chapter 3: Rule of Law Flashcards
What is rule of law
Lord Bingham - the core of existing principles that all persons and authorities within the state, whether public or private should be bound by and entititled to benefits of laws publicly and prospectively promulgated and publicly administered by courts
Whcih British academics talk about ROL?
- Lord Bingham
- A.V Dicey
- Raz
What are the view points that the different academics have for ROL
A “content-free” (procedural) rule of law
A “content-rich” (content of law) rule of law
What are the role of judges in ROL
Judges comply with the ROL by recognition of fundamental human rights and liberties through common law, by means of application of tort law and statutory interpretation through principle of legality and construing ouster clauses
What act fortified judicial power
Human Rights Act 1998 sections 2,3,4,6
What is the role of Parliament
Parliament supremacy allows parliament to create and remove legislations if they see fit
It has the power to safeguard and weaken ROL. They could even choose to legislate contrary to fundamental principles of human rigths and ROL
What is the Lord Chancellor’s role
Section 1 of the Constituional Reform Act 2005
* reforms don’t affect the constituional principles or the LC
Section 17(1)
* LC is to respect the ROL and defend the independence of the judiciary
What are the 5 elements of the concept of UK constitutionalism
Not the same as constitution
- Parliamentary supremacy - Concentrates on the ultimate public power in one institution
- Representatitve governrment - government organised by majority rule (reflective of people’s views)
- Limited govnerment - practices and power is determined by constitutional principles (rule of law, seperation of powers, respect for individual rights)
- Political accountability - government (executive) is held account by parliament for its policies and conduct
- legal accountarbility - government is held account by an independent judiciary through the principal of of judicial review
What are the 8 sub-rules of Lord Bingham’s principles for rule of law
- law must ber accesible and so far as possible intelligible, clear and predictable
- Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion
- Law is equally applied to all, unless objective differences require differenciation
- All ministers and officers must exercise power in good faith, fairly, for the purpose it was given, without exceeding their powers
- Law must be afford adequate protection of fundatmental rights
- Means must be provided for resolving should be inexpensive and without undue delay
- Adjudicative procedures proivided by the state should be fair
- ROL requires compliance by the state with its obligations in international law as in national law
LB thinks that ROL should be a mix of content and procedure
What is the ideology that Raz employs and what are his 7 principles?
- All laws should be prospective, open and clear
- Laws should be relatively stable, the making of particular laws (legal orders) should be guided by open, stable and clear and general rules
- Independence of the judiciary must be guaranteed
- procedural fairness in decision making by public officials
- courts should have review powers over the implementation of other principles
- Courts should beeasily accesible
- Discretion of crime preventing agencies should not be allowed to exploit the law
Raz argued for a negative, content free version of the ROL
What is the ideology that A.V. Dicey employs and what are his 3 postulates
- No man is punishable or can be made to suffer in body or goods unless they made a dinstinct breach of law - absolute supremacy or predominace of reuglar law (staute is king)
- No man is above the law - no matter rank or condition
- General principles of the constititution are the result of judicial decisions determining the right of private persons (common law protects individual liberties)
A.V. Dicey argues for a procedural ROL
Who said ROL and parliamentary sovereignty are ‘twin pillars’ of the British Constitution
A.V Dicey said they work side by side to build the constitution
Are Dicey’s first postulates met
- Presumption that parliament does not intend legislate retrospectively (Article 7 ECHR)
- GCHQ - Courts will not hesitate to inquire into the invocation of the powers of the roayal prerogative, unless matters relating to national security are non-justiciable
- R v Secretary of State for the Home Department Ex Parte Fire Brigades’ Union and others [1995] - execuitve’s royal prerogatives are suspended by the Act of Parliament
- (Miller & Ors) v Secretary of State for Exiting the Euoprean Union [2017] SC (Miller 1) - If royal prerogative will not be valid if it clashes with statute, or if its exercise has effect of changing law of the land
- R (on the Application of Miller) v Prime Minister [2019] SC (Miller 2) - exercise of royal prerogative (Boris Johnson) prorogued parliament and was held to be null and void
Council for Civil Service Unions v Minister for Civil Service [1985]
QCHQ
Courts have the right to inquire into the invocation of powers of the executive (royal prerogatives) unless matters regarding national security are non-justiciable
Meaning some people have justifiable means to be subject by the law
R (Miller & Ors) v Secretary of State for Exiting the European Union [2017] SC
Miller 1
Ruled that royal prerogatives cannot be valid if it clashes with statute or if it changes the law of the land.
Facts: Executive overstepped their powers, where they tried to leave the EU
