The Rule of Law Flashcards
What is the rule of law?
The rule of law is a principle that requires everyone to be subject to the law, including the government, and that the law applies equally to all people.
What is the formal school of thought in relation to the rule of law?
The `formal’ school states the moral content of laws is not determinative of whether the rule of law can be said to exist in a given jurisdiction.
What is the substantive school of thought in relation to the rule of law?
The `substantive’ school of thought states without respect for fundamental human rights and freedoms, a rule of law society cannot be said to exist.
What is the content of the rule of law?
*The law should be accessible, clear and predictable
*Legal issues should 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 to human rights
*There should be access to justice in the courts without inordinate delay or expense
*Public officials, including ministers, 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 requirement of legality?
The government must act “in accordance with the law”.
What is the legality principle?
The presumption when interpreting statutes, is that Parliament cannot be seen to have intended to restrict important rights and freedoms unless that is made clear.
How does judicial review protect the rule of law?
Legislation: the court cannot review primary legislation, however, it can assess whether a public body has complied with the provisions in an Act.
Additionally, the courts can review the legality of delegated legislation, by assessing whether it is in accordance with the powers granted by the parent Act, and can assess whether the government has acted in accordance with the delegated legislation.
Common law and prerogative power: The court can assess whether the government has breached a common law constitutional right or has lawfully exercised a prerogative power.
What is the relationship between the rule of law and parliamentary sovereignty?
The principle of the rule of law is deployed by the judiciary to restrict the effect of legislation, created by Parliament, in the interests of protecting individual liberties and rights. This can be achieved through judicial interpretation of statutory provisions by using common law principles of justice and fairness.
Parliament could, if they wish, enact laws which undermine rights, but the language of the legislation must be completely clear.
What is legal certainty?
Legislation should be clearly drafted but that is not always the case.
Legislation should apply to future actions, not retrospectively to past actions. Uncertainty is created if one does not know whether the law may change so that something you do in the present, which is currently lawful, becomes illegal and punishable at a later date.
Can retrospectively applicable legislation be passed?
Retrospectively applicable legislation is sometimes passed when Parliament wishes to legislate to overturn a decision of the courts – as it is constitutionally entitled to do – or put an accepted procedure on a statutory footing.
How can the authority of governmental power be restrited?
*The courts role is to ensure that governmental bodies stay within the boundaries of what is allowed by Parliament through legislation.
*In addition, there are other limitations on the use of such power. For example, the need for governmental bodies to use their power for their intended purpose.
What is discretionary power?
An important aspect of the rule of law and one of the key functions of judicial review is to control the exercise of discretionary power granted by legislation. If discretionary power has been given, the courts can put the decision-maker to the test to see that it has been exercised properly.
Does the judiciary intervene with the government’s exercise of its statutory discretion?
The willingness of the judiciary to intervene in the government’s exercise of its statutory discretionary power increased considerably in the second half of the 20th century.
What are the exceptions that the law applies equally to everyone?
*The monarch is, arguably, above (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.
*Diplomatic immunity - the privilege of exemption from certain laws and taxes granted to diplomats by the state in which they are working.
*Children are not subject to the same law as adults.
*Are there now barriers to meaningful access to justice, caused by cuts to legal aid funding?
What is parliamentary sovereignty?
Parliamentary sovereignty is a principle of the UK constitution. It makes Parliament the supreme legal authority in the UK which can create or end any law. Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change. Parliamentary sovereignty is the most important part of the UK constitution.
