Courts, Rule of Law, and Separation of Powers Flashcards
give the 3 main periods of growth of the judicial role and court power in the UK
-expansion of judicial review in 1960s
-growth in significance after New Labour reforms
-recent controversies: Brexit and Covid
give 3 principles that shape the operation of the courts
-parliamentary sovereignty
-rule of law
-separation of powers
give 3 preliminaries of the rule of law
-historically a highly contested concept
-most disagreement revolves around definition and scope
-must differentiate ‘rule of law’ from ‘rule by law’
historical development of the rule OF law
what does Dicey believe about the rule of law
-as well as PS, RoLaw identified as a major constitutional principle
-gave 3 meanings to the concept
what are the 3 meanings dicey gave the concept of RoLaw
-Systemic ‘regular’ law v arbitrary ‘discretional’ power
-Equality before the law
-Rights of individuals best protected by common law
do Dicey’s views still apply today
-largely, scholar’s disenchanted with Dicey’s views on this concept esp in 20th Century
-significant shift as historically, RoLaw and Ps complemented one another but today it is often posed as clashing thus bigger focus in 21st cent
what does Thompson (1993) say on the RoLaw
-“The rule of law has a comforting ring to it. If we are concerned about
restraining government then the idea of government by laws rather than men seems to be helpful, until we realise that laws are made by men and women.”
-“The rule of law is not a robust check upon government. There is government according to law but the law can indemnify past illegalities and take retrospective effect. These are not everyday occurrences but they show that whatever is the check upon government is not law.
what does Carroll (1998) say on RoL
“This is neither a rule nor a law. It is now generally understood as a doctrine of political morality which concentrates on the role of law in securing the correct balance of rights
and powers between individuals and the state in free civilised societies.”
what does de Smith (1998) say about RoL
“The concept has an interesting characteristic: everyone who tries to redefine it
begins with the assumption that it is a good thing, like justice or courage. When Communist theoreticians extol the merits of ‘socialist legality’ they could simply substitute the term ‘rule of law’, though their conceptions of what it connoted would differ from those of liberal democratic
ideologists.
give the 3 main aspects/implications about RoLaw today
- Law and Order better than anarchy
- Gov must act according to the RoLaw
3.Applied as a broad doctrine affecting the making of new law and the operation of gov
explain 1. Law and order better than anarchy
-In a democracy, it must be possible to change the
government w/o threating the existence of the
state
explain 2. Government must act according to the rule of law
-Principle of legality
-Public authorities can be subject to effective
sanctions
who is the main authority/theorist on RoLaw today
-Bingham and his 8 principal ingredients
what are Bingham’s 8 principal ingredients for RoLaw
- the law must be accessible 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 - the laws should apply equally to all, save to the extent that objective differences justify
differentiation - Public officers at all levels must exercise their powers in good
faith, fairly, for the purposes for which powers are conferred,
without exceeding the limits of such powers and not unreasonably - the law must afford adequate protection for fundamental human
rights - means must be provided for resolving, without excessive cost or
delay, civil disputes which the parties themselves cannot resolve - adjudicative procedures provided by the state should be fair
- the state must comply with its obligations in international law as
in national law
simplified, what are Bingham’s 8 principal ingredients for rule of law
- law= accessible, intelligible, clear, predictable
- legal right/ liability resolved by law not discretion
- law applies equally to all, with exceptions
- public officers should be fair with their power
- law should protect human rights
- should provide for those in civil disputes who cant pay/resolve themselves
- right to fair trial
- state complies with international law the same it does national law
give 2 international aspects of the rule of law
-Since the end of WWII, there has been a large focus on rule
of law (and human rights)
E.g., ECHR ‘prescribed by law’ test
give 2 social and economic aspects of the rule of law
-Has been broadened to values that lie far beyond the courts, legal process and the legal profession
-Difficult to make social & economic values legal principles
what are the 3 practical applications of RoLaw
-judicial review
-statutory interpretation
-human rights
explain judicial review as a practical application of RoLaw
-CCSU [1985] AC 374
-Access to justice (e.g., UNISON)
-policing the prerogative (e.g., Miller II/Cherry
CCSU [1985] AC 374
-procedural steps followed (???) rewatch lecture
Access to Justice eg UNISON
-gov introduced high fees for access to courts
-judiciary agreed with challenges in favour of equal access to justice
explain statutory interpretation as a practical application of RoLaw
-principle of legality (eg ex parte Simms)
ex parte Simms
-fundamental rights cannot be overridden by ambiiguous words, if this is challenged judges can fight back on the interpretation
what happened inR. (Dolan) v. SoS for Health and Social Care [2020] EWCA Civ 1605
-challenges powers enforced during COVID lockdown
-argued violated number of human rights
-but this challenge ultimately failed
what was said in R (Dolan) v SoS for Health and Social Care (2020) EWCA Civ 1605
-“First, the Government had no power under the legislation they used to make the regulations, namely the Public Health (Control of Disease) Act 1984, as amended by the Health and Social Care Act 2008 (“the 1984 Act”). Secondly, the regulations are unlawful applying ordinary public law principles; and thirdly they violated a number of the Convention rights which are guaranteed in domestic law underhe Human Rights Act 1998 (“HRA”).”
give 3 cases that champion the idea of the RoL
-Entick
-Miller I
Jackson v Attorney General (2005) UKHL 56
explain the case of Entick championing the idea of RoL
-express legal authority needed for government to interfere with citizen’s
person/property, or it will be unlawful
explain the case of Miller I championing the idea of the rule of law
- ‘‘the constitutional remit of the judiciary… is to protect the rule of law’ [151]
explain Jackson v Attorney General [2005] UKHL 56 as championing the idea of the rule of law
-Lord Hope’s obiter (not leading judgement) : “the rule of law enforced by the courts is the ultimate controlling factor on which our
constitution is based”
-Baroness Hale’s obiter (also not leading judgement) “The Courts will treat with particular suspicion (and might even reject) any attempt to
subvert the rule of law”
what is Lord Bingham’s core principle
‘all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly
made, taking effect (generally) in the future
and publicly administered by the courts’
what actions threaten the rule of law
-civil disobedience?
-terrorism
-other actions?
