PUBLIC LAW L4 - Rule of Law - OVERVIEW & CHARACTERISTICS Flashcards
What does Lord Bingham’s book The Rule of Law state? (5)
The rule of law has identifiable features. ‘The core of the existing principle is that 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 in the future and publicly administered in the courts.’
What is the rule of law? (4)
It is a very broad concept.
There is no single accepted definition of it.
It is referred to as a constitutional principle in S1 in CRA 2005.
It is fundamental to an understanding of public law principles.
What do formal perspectives on the law mean? (6)
The legal procedure must be clear and certain.
The law must be prospective.
The law must be clear.
The law should be applied equally.
The judiciary must be independent.
The moral content of laws is not determinative of whether the rule of law can be said to exist in a given jurisdiction.
What do substantive principles the rule of law mean? (2)
The same formal perspective requirements apply but also that without respect for fundamental human rights and freedoms the rule of law cannot be said to exist.
What can the judiciary be seen as? (1)
Guardians of the rule of law.
Describe the relationship between the rule of law and the separations of power. (2)
The doctrine of separation of powers is intrinsic to the rule of law because it means that those in government are prevented from exercising power arbitrarily.
Describe the history of the rule of law. (2)
Rule of Law was advocated in Ancient Greece as a protection against tyranny and it remains a fundamental principle of all modern liberal and democratic societies.
What are the eight fundamental principles of the Rule of Law that Lord Bingham et out? (8)
The law should be accessible, clear and predictable.
Legal issues should ordinarily be resolved through legal processes and not through the exercise of administrative discretion by government officials.
The law should apply equally to all.
The law should afford adequate protection for human rights.
There should be access to justice in courts without inordinate delay or expense.
Public officials should exercise the powers they have been granted in good faith and within the limits of those powers.
Legal and adjudicative processes should be fair.
The state should comply with its obligations under international law.
What is the purpose of judicial review in terms of the rule of law? (1)
The mechanism by which the rule of law is protected in UK constitution.
Can the courts review primary legislation? (1)
No, but they can assess whether the government or any other public body has complied with the provisions in an act.
What is meant by Ultra Vives? (1)
Outside its legal authority.
Can the courts review delegated legislation? (1)
Yes by assessing whether it has been made in accordance with powers granted by the parent act.
What else can the courts assess other than legislation? (2)
Whether the government has breached a common law constitutional right or has lawfully exercised a prerogative power.
What is legal certainty? (2)
A fundamental feature of the rule of law. The law should be set out clearly so that citizens can appreciate the rules of operating in society ad can go about their lives knowing what they can and cannot do.
When may retrospective legislation occur? (2)
Legislation should only apply to future actions and not retrospectively to past actions. But may happen when parliament wishes to legislate to overturn a decision of courts.
