The Rule of Law Flashcards
What is the Rule of Law?
How laws are made
How the system works
How the legal system works
Whether the protection of Human Rights (Substantive)
What is the difference between formal and substantive meanings?
Concerned with whether the law is that sense was a good or bad law.
Whom are the three theorists of the Rule of Law?
Professor Joseph Raz
Professor Albert Dicey
Lord Bingham
What does Raz state about the rule of law?
May institute slavery without violating the rule of law.
What are Raz’s four principles about how law’s should be?
- Prospective, open and clear
- Stable
- Made properly (under open, clear rules)
- Applied by independent judges
What are the remaining four principles?
- Be open and fair
- Review whether the government and Parliament obey the Rule of Law
- Be accessible
- Not allow arbitrary action by police or prosecutors
What are the three parts to Dicey’s theory?
People should only be punished under the ordinary law, in ordinary courts
No-one is above the law.
Judges protect our liberty through ordinary cases.
What does Dicey believe?
People should be only punished for breaches of ordinary law, in ordinary courts, not through special law or special courts. Discretion is dangerous.
What does Dicey state about discretionary powers?
where there is discretion there is room for arbitrariness. Used to bypass the ordinary law. State punishing us through special courts.
What are the examples of discretion powers?
Sentencing of criminals
Acquiring British citizenship
Declaration of war
Parliament’s power to “pass what legislation it pleases
Does the UK have a history of special court laws?
Star Chamber - punishes people for immoral action even if law has not been broken.
Is discretion too dangerous?
Dicey claims it is something in which is too dangerous to be allowed.
Is discretion always a bad thing?
Lindley v Rutter 1981 - young woman out drinking too much and swore at police - had her bra removed. Discretion is allowed and required.
What is Diceys second principle of the rule of law?
No- one is above the law. Everyone is responsible for their actions under the ordinary law.
Why should the law apply to everyone?
Ensures fairness and consistency.
What was held in the case of Yip Chiu-Cheung (1995)?
Y agreed with an undercover police officer to smuggle heroin into Australia.
Although the police officer had good motives he intended to commit a criminal offence. Therefore, Y was guilty of conspiracy.
This case illustrates the principle that ‘no-one is above the law
Whom in which has an illegal immunity?
Children Diplomats Heads of State Judges Members of Parliament
What is meant by Equality before law?
Entick v Carrington - no one is above the law - must point to some legal authority
M v Home Office 1994?
Contempt of Court - ignoring a court order. Individual asked for sanctuary. the argument that there is no power to enforce the law … against a minister would, if upheld, establish the proposition that the executive obey the law as a matter of grace and not as a matter of necessity
What is Dicey’s third theory of the rule of law?
Our constitution is made, and our liberty is protected, by decisions of judges in ordinary courts
Can judges protect our liberty? R v Horseferry Magistrates Court.
If the court is to have the power to interfere with the prosecution, it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action.
R (on the application of Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36
The right to be told of an administrative decision against you
R (on the application of Anufrijeva) v Secretary of State for the Home Department
It is … a cardinal principle of the rule of law … that … effect should be given to a clear and unambiguous legislative provision.”
The executive can do anything
that is not unlawful - Malone v MPC
Can judges be unwilling to protect liberty?
Liversidge v Anderson - Yes
What are the principles from IRC v Rossminster [1980] AC 952
Burmah Oil v Lord Advocate [1964] 2 All ER 348
Judges may be unable to protect our liberty because state action may be authorised by an Act of Parliament
What are the four principles held from Lord Bingham in relation the rule of law?
The law should be accessible, clear and predictable.
Legal questions should be normally decided by applying law, not discretion.
Laws should apply to everyone unless objective differences justify treating people differently.
Law must protect human rights.
What are the four remaining principles from Lord Bingham?
The legal system must enable people to resolve disputes at a reasonable cost, in a reasonable amount of time.
Governments must use their powers reasonably and honestly for the right purposes.
The court process should be fair.
The state must comply with international law
