The Rule of Law Flashcards
What is the legality principle?
The Government must act in accordance with the law.
What is the formal school principle?
Laws should have certain characteristics e.g clarity, regardless of their content.
What is the substantive school principle?
Requires that the law is consistent with Human Rights and dignity.
What examples are breaches to the rule of law?
-Public officials acting without lawful authority.
-Secreta and retrospective laws.
-Governments controlling judges or instructing the police to ignore inconvenient court orders.
What does the legality principle include?
-Natural justice
-Access to the courts
-Clarity
-Prospective in legal rules.
What is the constitutional reform Act 2005?
It allowed for a stricter separation of powers and divided the executive, judicial and legislative branches. Accordingly, the Act reformed the office of the Lord Chancellor, introduced the Supreme Court of the United Kingdom, and regulated the appointment of judges outside of the auspices of the House of Lords.
How did the Constitutional Reform Act 2005 create the separation of powers?
-Restricted the powers of the Lord Chancellor.
-Introduced the Supreme Court into the UK, this replaced the House of Lords as the new superior court.
What is the social contract theory?
This argues that individuals have surrendered some of their freedoms and submitted to authority in return for their rights in the social order.
Obedience in return for protection/order.
How is the legality principle valuable?
-Imposes procedural restrictions on the state.
-Government can usually rely on a majority in The House of Commons.
-The House of Lords cannot veto legislation, yet have power and can cause delays.
What does the legality principle require?
The state to have legal authority over its actions (procedural).
Yet legal authority by way of Parliament.
What are formal school concepts?
-Laws must be made properly by authorised persons, using authorised procedures.
-Clarity of the law. it must enable people to make the right decisions about their conduct.
-Whether the law only applies to future conduct.
-Equality before the law
What are substantive school concepts?
-Aims to use the rule of law as the basis for substantive rights, allowing a critique of legal provisions.
-Equality of arms
What is Dicey’s first rule of law?
No arbitary power.
-Punishment can only follow if convicted at court.
-Yet fails to create a balance between rule and discretion.
What is Dicey’s second rule of law?
Equality before the law.
-Clergymen and soldiers were the exception as subject to different bodies of the law.
Why was Dicey hostile to the French style of administrative law?
-It had separate rules for state of conduct and separate courts.
-He misunderstood the system to be that public bodies have powers and individuals do not.
How does the UK constitution derive from ordinary laws?
-Laws concerning liberties of the individual are judge made laws.
Why was Dicey sceptical of foreign institutions?
He believed whilst written constitutions had declaration of rights, these in practice weren’t delivered, and did not restrain government abuse of power.
What did Joseph Raz believe (quotes)?
Ø ‘The Rule of Law should outline what ought to be, rather than what is.’
What did the ECHR claim about clarity?
‘A norm cannot be claimed as law, unless it is formulated with sufficient precision to enable the citizen to regulate his conduct.’
What does the rule of law require about access to legal positions?
‘A citizen before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it.’
What is the prospective idea about the rule of law?
-Laws should only apply to future conduct.
-Shouldn’t try to change previous legal character.
-Willes J claimed that the prohibition on retrospectivity is not absolute and there are rare exceptions, decided by Parliament.
What was an exception to the martial rule in 1991?
Ø R v R (1991) - House of Lords decided that D could be guilty of rape in relation to his wife.
Ø Known as the ‘removal of legal fiction.’
-ECHR claimed that a husband in 1989 ought to have foreseen that non-consensual sex with his wife could be treated as rape.
Why must the independence of the judiciary be guaranteed?
Ø Rule of law can only exist if there is redress for executive lawlessness, it must come from courts and judges who are independent of the executive that they are holding account.
What protection do judges have which shows judicial independence?
Judges have security of tenure (cannot be sacked because of there judgements), security of salary, and immunity from suit (cannot be subject to harassment, being sued for what they do as a judge).
-Strengthened by the 2005 Constitutional Reform Act.
How do ouster clauses try to allow the Government to escape accountability?
Governments sometimes attempt to prevent courts from hearing challenges to the decisions of the public bodies, by inserting ouster clauses into legislation.
-If the courts read these literally, the jurisdiction to hear claims that a public body acted unlawfully would be ousted.
-The court is hostile to outer clauses, instead using the rule of law as something to be interpreted.
What did Joseph Raz believe?
‘A non-democratic legal system, based on denial of human rights…in principle conform to the requirements of the law better than any of the legal systems of the more enlightened western democracies.’
What did TRS Allen believe?
The rule of law is aimed at the common good which requires adherence to the basic features of human rights.
What did Bingham believe?
The rule of law is based on a ‘fundamental compact’ between the individual and the state, with both sacrificing a ‘measure of the freedom and power which they would otherwise enjoy’.
Believes a broad interpretation of the law is mostly beneficial.
-Practical.
What is Lord Bingham’s definition for the rule of law?
“The core of the existing principle is, I suggest, that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts”.
What does Lord Bingham’s definition mean?
Law should not be made in secret, but made publicly. The people can see justice being achieved and how the law operates.
What is TRS Allen’s definition to the rule of law?
“The rule of law is an amalgam of standards, expectations, and aspirations: it encompasses traditional ideas about individual liberty and natural justice, and, more generally, ideas about the requirements of justice and fairness in the relations between government and governed.”
What does TRS Allen’s definition mean?
Not just should those rules be open and accessible, they should have particular quality such as support justice and fairness. Only rules which are compliant with law should be made.
-Principled.
What is the formal approach?
-Procedural/surface considerations.
-The form of the law/the way it looks, legal procedure.
-Don’t believe it is the law’s concern of the good and bad (this is political).
-Not about content.
-Not retrospective looking,
concerned with clarity, equality, accessibility and the prospective nature of law.
What is the substantive approach?
In addition to the formal conception:
-Concerned about content:
-Value considerations
○ Human rights
○ Deeper, moral implications.
-Fairness, justice.
