The rule of law Flashcards
Traditional definition
Dicey said that the rule of law meant the following 3 things:
1) No man is punishable or can be lawfully made to suffer in body of goods except for a distinct breach of the law established in the ordinary legal manner before the ordinary courts
2) No man is above the law
3) The general principles of the constitution are with us as a result of judicial decisions
Traditional definition - Legal certainty
Citizens should be able to rely on laws that are both made and set out clearly. The rule of law is a process of enforcing prospective, uniform and clearly pre-agreed rules, regardless of the content of the laws
Traditional definition - Personal liberty
Citizens should be detained and subject to punishment only if they have broken the law
Traditional definition - Due process of law
Citizens have a right to fair procedures for determining civil or criminal liability
Traditional definition - Equality before the law
Not only equality between citizens but also between public officials and citizens. Like cases should be treated in like ways - no unjustified discrimination. State officials have no exemption from legal control or accountability. Members of the executive should not legislate or adjudicate in court cases
Traditional definition - Observing the rule of law
Observing the rule of law should ensure that:
- The gov. is prevented from exercising arbitrary power
- The gov. can be held to account for its actions
- The law is set out clearly for all citizens and is made properly following a set procedure
- The law does not operate retrospectively
- There is equality before the law for all citizens
- There is equal access to the law and the gov. or state has no special exemptions or get-outs
- Citizens have a means of legal redress for their grievances
- The independence of the judiciary is maintained, preserving SoP
Modern interpretations of the rule of law - Lord Bingham’s definition - 8 sub-rules
1) The law must be accessible, intelligible, clear and predictable
2) Questions of legal rights and liability should ordinarily be resolved by application of the law and not the exercise of discretion
3) The laws of the land should apply equally to all
4) The law must afford adequate protection of HRs
5) Means must be provided for resolving, without excessive cost or delay civil disputes
6) Ministers and public officers must exercise the powers conferred on them reasonable, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers
7) The adjudicative procedures provided by the state should be fair
8) The state must comply with its obligations in international law
Modern approach
Requires a non-discriminatory application of the law to ensure legitimacy and uphold HRA
