The Rule of Law

Question 1

Definition of the RoL

Answer 1

Dicey = ‘no man is above the law’
Bentham = all ‘should be bound and entitled to the benefit of laws’
McWhinney = the RoL is a ‘distillation of English common law legal history’ … ‘great battles’ between the monarch and parliament and between the courts also = Bill of Rights + Case of Proclamations

Question 2

Bingham’s features of the RoL

Answer 2

1. the law must be accessible, clear and predictable = Entick v Carrington [executive must have clear authority to infronge rights]
2. disputes should be resolved by the application of the law = Evans v AG
3. the law should apply equally to all = M v HO
4. the law must adequately protect fundamental human rights = CONTROVERSIAL
5. Resolution of disputeswithout cost or delay = UNISON case
6. Public officials must exercise their powers reasonably
7. Legal decisions should be fair = outlined in Doody
8. The state must comply with its obligations under international law = vs. Safety of Rwanda Act

Question 3

Key cases

Answer 3

• Evans v AG = Freedom of Information request to see then-Prince Charles’ letters to governemnt, AG issued a certificate saying that they did not have to be published, the SC said that this went agaisnt the rule of law as the executive’s decisions should be reviewable = majority held that FoI Act was not clear to give the executive this power to issue a certificate [principle of legality], with Hale and Mance holding that their decision was not fully reasoned [reasonable grounds]
• M v Home Office = cannot deport whilst legal proceedings are ongoing, SoS did so anyway, the court ordered them to return them to conclude proceedings, wide such of court’s powers to order the executive
• GCHQ case = preogorative powers are judically reviewable
• Ouster clasues Privacy International

Question 4

4. the law must adequately protect fundamental human rights

Answer 4

• The principle of legality = statute and case law
• There must be clear justifications for the infringement of rights
• Simms = Parliament can ‘legisalte contrary to fundamental human rights’
• Article 8 (2) ECHR = ‘no interference by a public authority [in the right to private life] … except such as is in accordance with the law’ [so when Parliament clearly legislates out of it]

Question 5

RoL presence outside of case law

Answer 5

• RoL is affirmed in statute, such as the Constitutional Reform Act 2005
• HoL Constitutional Committee uphold it

Question 6

Ouster clauses

Answer 6

Anisminic = the court did review a case which it was ousted from
Privacy International = ouster clauses must be clear, and in this case, clearer language should have been used

Question 7

RoL v PS

Answer 7

• Jowell argues that the RoL is superior to parliament = argued that in extreme circumstances the rule of law may even trump the sovereignty of Parliament should Parliament fail to uphold the rule of law [e.g. Court’s potential response to the Safterty of Rwanda Act = showdown]
• Dicey = ‘[t]he supremacy of law necessitates the exercise of parliamentary sovereignty.’
• vs. parliament has the legal power to limit the rule of law [as recognised in Simms]