S4: ROL Flashcards
What are Dicey’s three elements for the rule of law ?
1.Every man principle-monarchy, executive, government
2.Absence of arbitrariness- only punishable by the law
3.ROL permeates the whole constitution- judge made/ underpinning principle of the UK
Element 1 of Dicey’s principles
-Dicey believed the rule of law was kind of vague in the way it was explained and described
-‘We mean in the first place no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of land. In this sense, the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide arbitrary discretion powers of constraint’- Dicey is saying that here we can’t be punished arbitrarily. In other words, a law needs to be there. It needs to be stable, consistent and clear for someone in power to stop judging you against the law and potentially taking measures if you’ve breached the law.
Element 2 of Dicey’s principles
‘We mean in the second place, when we speak of the rule of law as a characteristic of our country, not only that with us no man is above the law, but that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amendable to the jurisdiction of the ordinary tribunals’-
Here, Dicey is meaning to say that no man is above the law.
Element 3 of Dicey’s principles
- ‘attribute of English institutions. We may say that the constitution is pervaded by the rule of law on the ground that the general principles of the constitution, are with us- the result of judicial decisions determining the rights of private persons in particular cases is brought before the courts. Whereas, under many foreign constitutions, the security given to the right of individuals results, or appears to result from the general principles of the constitution’
Here, it’s trying to be conveyed that even though we don’t have a written constitution in the way other jurisdictions do, and even though our constitution is different to a democratic one that’s kind of written down, that doesn’t mean our constitution doesn’t embody some core values that are relevant to the rule of law. These includes things like personal liberty or the right to a public meeting.
What is Lord Binghams core interpretation ?
-‘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 and publicly and prospectively promulgated and publicly administered in the courts’.
What are some of the practical effects ?
-Courts will strike down government action that is incomplete with the ROL;
-Courts will try to give legislation a meaning that is compatible with the ROL;
However, if it has such prominent practical effects, should be better defined conceptually? It’s the result of and it’s just the very nature of our constitution.
The application of the rule of the durig the Covid-19 pandemic
- Public Health control of Disease Act 1984
- Partygate scandal
- Good Law Project
Public Health control of Disease Act 1984
- Example of regulation under this act= Health Protection (Coronavirus, international Travel)(England) Regulations 2020- made under the Parent Act
Here, we can argue that maybe legislation was being abused under the guise of it being said that it was used for the pandemic but was actually evading parliament. It was also a threat to human rights as we were all confined in our own homes, shops or even gyms. We weren’t able to celebrate key events and our freedoms were restricted.
“Partygate” scandal (and Dominic Cummings and Matt Hancock)- Met and Durham police forces refusal to investigate
-Govt got into a lot of trouble for holding gatherings where individuals got together with alcoholic beverages whilst the rest of the UK were locked in their houses unable to see their loved ones. Matt Hancock and Dominic Cummings were caught having an affair and breached breaking COVID regulations by and getting intimate with a colleague. So here we can see a key minister at the point breaking the law in context of the COVID regulations. We can tie this in with the rule of law as Dicey’s second element that no man is above the law is suggested here and its quite ironic because government made this legislation and regulations which prohibited individuals from basic liberties and of course they themselves breaking the rules.
Good Law Project
-VIP lanes for unusable equipment
-Public First
-Lack of Transparency e.g., private emails and failing to disclose details of COVID contracts
