Rule of Law Flashcards
What is meant by the idea that there are ‘formal’ and ‘substantive’ perspectives on the Rule of Law?
‘Formal’ (e.g. Prof. Joseph Raz)
- Legal procedure must be clear and certain.
- The law must be prospective (i.e., law should not be applicable retrospectively) & predictable.
- The law must be clear.
- It must 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.
‘Substantive’ (e.g. Ronald Dworkin)
- The same formal requirements apply, but a moral component is also necessary …
- Without respect for fundamental human rights and freedoms, a rule of law society cannot be said to exist.
Who is seen as the ‘guardians’ of the RoL?
Judiciary
Can the judiciary use the RoL to restrict the effect of legisaltion created by parliament? If so, how?
yes in the interest of protecting individual liberties and rights?
can be achieved through judicial interpretation of statutory provisions (rules for statutory interpretation) and by using common law (and ECHR) principles of justice and fairness.
Can Parliament enact laws which undermine rights?
Yes, but language must be completely clear and unambiguous.
‘legality principle’ -> unless otherwise stated, courts will always presume that legisaltion is intended to protect fundamental rights.
Give 2 examples of retrospective legisaltion.
The War Damage Act 1965 overrode the judgment of the House of Lords in Burmah Oil Co Ltd v Lord Advocate; eventually, the government was not obliged to pay damages for property destroyed or damaged in the war, as the court had previously ordered.
War Crimes Act 1991 empowered the UK courts to punish war crimes committed by persons who were not subject to British jurisdiction at the time when the crimes were committed (WW2).
What is Dicey’s fundamental principle regarding discretionary power?
Public officials, including ministers, should exercise the powers they have been granted in good faith and within the limits of those powers.
Some matters have to be left to the discretion of the executive, as legislation can’t / shouldn’t prescribe a single lawful course of action in every situation.
note: key function of JR is to control the exercise of this discretionary power granted through legisaltion.
What is a ‘McKenzie friend’?
a person who attends a trial as a non-professional helper or adviser to a litigant who does not have legal representation in court.
“clients must know what their options are, including McKenzie friends, mediation, barristers, and solicitors”
There is a general rule that that the RoL applies equally to everyone as far as possible. There are however, some exceptions - what are these?
- The monarch is, arguably, above the (criminal) law.
- Judges in higher courts are immune from civil litigation for acts done within their official jurisdiction.
- Parliamentary privilege – MPs cannot be sued for what they say in Parliament. No civil claim can be initiated against an MP.
- Diplomatic immunity.
- Children are not subject to the same laws as adults.
- Are there now barriers to meaningful access to justice, caused by cuts to legal aid funding over the last decade or more?
What is Article 6 ECHR?
right to a fair trial
What is the principle in Entick v Carrington (1765),
General:
that governmental power can only be exercised on identifiable authority and in a lawful manner, is fundamental to the exercise of restraint on the power of the executive.
In the case:
An individual has the right to prevent access to his land to anybody unless the access is granted by the law. It is only if the law permits an agent of the state to do something on the land of an individual that they will be able to do so. If the law is silent, any entry onto the land is a trespass. The state is therefore subject to the same position on trespass as would be the case for an individual. Any entry onto land without licence of the land owner is forbidden.
What are the 2 main ways in which the power of the executive may be restrained?
- Control by Parliament
Parliament decides whether or not government proposals become law, and it passes laws which gives the executive powers but within regulated restrictions.
- Restraint by the courts
The executive’s ‘ultra vires’ actions are restrained by judicial review.
“The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based.” Per Lord Hope in Jackson v AG [2005] UKHL 56.
How does the concept of proportionality exercise a protective function of the ECHR?
Some rights under the Convention are absolute rights, such as
- The prohibition on torture and
- Inhuman or degrading treatment.
The state can never restrict absolute rights.
Others are limited or qualified rights, which the state can legitimately interfere with in some situations.
Qualified rights (such as privacy and freedom of expression) can be interfered with, if:
- There is a “legitimate aim” in restricting the right (including public safety, the prevention of crime, the protection of health, national security or the protection of other people’s rights).
- The restriction is in accordance with or “prescribed by” law. (Note the rule of law basis of this concept).
- The restriction is “necessary in a democratic society”.This requires that the restriction corresponds to a pressing social need and is proportionate to the aim pursued.
What is an ‘absolute right’? Give 2 examples.
Right which cannot be interfered/ restricted with under any circumstances.
e.g:
1. The prohibition on torture and
2. Inhuman or degrading treatment.
What is an ‘qualified right’?
rights that the state may legitimately interfere with in some situations.
Any interference must be done in-line with the law (Belmash case)
When can a qualified right be interfered with?
i) “legitimate aim” in restriction -> e.g. public safety, prevention of crime, protection of health…
ii) restriction in accordance with “prescribed law.
iii) restriction is “necessary in a democratic society”
