Week 4- The Rule of Law

Question 1

What are Diceys three conceptions of the Rule of Law?

Answer 1

1) “no man is punishable except for a distinct breach of law…before the ordinary court of the land”
2) “Every man is subject to the ordinary law of the realm and amenable to the jurisdiction by ordinary tribunals.”
3) legal spirit is the real source of law in the UK and pervades our constitution.

Question 2

What are the first 3 (out of 8) general principles of the rule of law explained by Raz which require that the law should conform to standards designed to enable it effectively to guide action??

Answer 2

1) Laws should be prospective, open and clear
2) Laws should be relatively stable
3) The making of laws should be guided by open, stable, clear, and general rules.

Question 3

What are the last 5 (out of 8) principles of the Rule of Law as explained by Raz which ensure that the legal mechanisms do not impede on the ability of citizens to guide their own behaviour?

Answer 3

4) The independence of the judiciary must be guaranteed
5) The principles of natural justice must be observed
6) The courts should have review powers over the implementation of other principles
7) The courts should be easily accessible.
8) The discretion of crime-preventing agencies should not be allowed to pervert the law

Question 4

What does the constitutional reform act 2005 s1 say about the rule of law?

Answer 4

“This Act does not adversely affect—
(a)the existing constitutional principle of the rule of law”

• Parliament recognising the rule of law as a constitutional principle
• it limits the scope of the rest of the act in a vague way which shows that the rule of law will not be adversely affected by constitutional reform. It may help explain why we value particular institutional arrangements.

Question 5

What does Allan regard as the desirability in the Rule of Law as a constitutional principle ‘pervading’ our constitution?

Answer 5

• The ROL is vital in allowing our country to avoid the arbitrary discretion of power by official persons.
• “there is a whole theory of good governance wrapped up in the rule of law”

Question 6

Who does Allan regard as the ‘vindicator of our rights”?

Answer 6

The courts as opposed to parliament.

Question 7

What name does Allan give to the Rule of law as part of our constitution??

Answer 7

A constitutional principle. It is not written but is a practice followed by the courts, and recognised in legislation eg CRA 2005 “this act does not adversely affect the Rule of law”

Question 8

What is Allans view with regards to the rule of law?

Answer 8

Allan opts for a substantive/ thicker view of the rule of law, suggesting that the role of the law is to protect citizens rights and freedoms. The protection of freedom is not mutually exclusive to a substantive view of the ROL, freedom in the sense that citizens are able to plan their lives with full knowledge of the law and their obligations forms part of the formal view of the ROL (freedom in a narrow view)

Question 9

What is Razs understanding of the rule of law?

Answer 9

• Raz takes a narrow view with the rule of law, noting his ‘formal’ view of the ROL.
• This means that no matter the content of the law, so long as the law takes a clear, coherent, stable and prospective form, it is upholding the rule of law.
• His reason for the ROL is that it allows personal autonomy, in that citizens can guide their own behaviour in accordance with the law, knowing that they won’t be the subject of arbitrary discretion by the state or law-enforcing officials (as per number 8 of his principles of the ROL)

Question 10

What does Raz say the ROL is NOT concerned with?

Answer 10

“it says nothing about how the law is to be made; by tyrants, democratic majorities, or any other way. It says nothing about fundamental rights, about equality or justice”

-The ROL is not concerned with rights, equality or justice,

Question 11

What is Razs metaphor for the rule of law?

Answer 11

“A good knife is, among other things, a sharp knife. Similarly, conformity to the rule of law is an inherent value of law”

The law therefore works best vis the law when citizens can enjoy personal autonomy within the constraints of the law, planning their lives around the law.

Question 12

What does Raz say with regard to slavery?

Answer 12

“the law may legalise slavery without violating the rule of law”

clearly an extreme extension of the thin/ formal view of the ROL but the point is that the substance of the law is too complicated and open to too much contention to be efficiently followed as the basis for the rule of law.

Question 13

Is there a tangible link between the substantial and formal view of the rule of law?

Answer 13

• The formal view of the rule of law says that the rule of law is different to the rule of good law. However the form that law takes, in that it is clear, accessible, open, prospective etc means that the law may (subjectively) be good at protecting human rights or may be bad.
• The two views are not mutually exclusive, but rather the substantial view encompasses moral and philosophical understandings of the importance of freedom and human rights whereas the formal view is concerned with efficiency and autonomy, unconcerned with the actual substance of the law, so long as the mechanisms of the law do not impede on the laws ability to guide behaviour

Question 14

What is the benefit of a formal ROL?

Answer 14

Personal autonomy is of paramount importance and Razs understanding of the rule of law in its formal state increases the efficiency by which personal autonomy is achieved.

Question 15

How might economic and social issues be important in upholding the formal view of the ROL?

Answer 15

• One of Razs principles of the formal ROL is unrestricted access to the courts.
• If society is poor and tribunal fees exist, it may impede on the ability of citizens to access the courts.
• Therefore, as shown in the Unison case, the substance of the law can be important in determining how well the legal system works as a mechanism in order to guide behaviour; access to courts should be unfettered and therefore whilst parliament remains sovereign, the substance of their laws is inherent in the upholding of the ROL in either its thick or thin understanding, and there may be political factors (substantial factors) which weight into the decision making of parliament

Question 16

How does Barber distinguish different aspects of the rule of law and why?

Answer 16

Legal (formal) and non-legal (substantial)

-He feels that the formal and substantive views of the ROL has blurred lines between the two

Question 17

What is Barbers legalistic view of the ROL?

Answer 17

-The legalistic view resonates closest with the formal view, but Barber argues that some social and economic values can be placed in the legalistic view to allow the smooth running of the law as the mechanism of protecting personal autonomy, without transcending into non-legalistic factors (related to political, moral or philosophical factors and rights)

Question 18

Why does Barber disagree with Craigs division between formal and substantive?

Answer 18

It gives a hard division between the two concepts and suggests that no overlap is possible between the two. and doesn’t explain why Raz and Allan appreciate both formal and substantive aspects of the ROL in their writing, despite their apparent view of ROL.

Question 19

How does Barber describe Razs and Diceys formal understanding of the rule of law being ‘extended’?

Answer 19

Their formal views differ, with Razs being a formal view with a legal background whilst Diceys exists more as a formal view with a political background.
-Their legalistic views can be extended to include social issues which are necessary in allowing the formal ROL to function effectively.

Question 20

What are the social issues Barber talks of as important as part of the legalistic aspect of the rule of law, and why don’t these ideas fall into the more substantial, ‘non-legalistic’ view?

Answer 20

Economic welfare, economic equality, education, social empowerment.
-The importance of these issues allow for effective functioning of the mechanism of the law as a behaviour-guiding instrument but can still be observed whether there is ‘good’ or ‘bad; law ie in a dictatorship

Question 21

Facts and significance of Purdy v DPP

Answer 21

Facts- Purdy was a woman with an increasingly severe illness, seeking euthanasia in Switzerland. The domestic law was unclear on the legal implications for her husband if he aided her travel, and so she wanted to travel alone before she became too ill to stop the prosecution of her husband

Significance- This decision for the DPP to promulgate an offence-specific policy alludes to the importance of the legalistic view of the rule of law. Purdy was concerned with the availability of the information surrounding the law, rather than arguing that the law should (normatively) have accommodated for her husband to aid her without prosecution. Also relates to clear, open, accessible law as part of the formal view of law.

Question 22

Walumba Lumba v SS for Home department facts and significance?

Answer 22

Facts- L and M were detained awaiting deportation under unpublished policies. They could’ve been lawfully detained had the published policies been used.

Significance- Diceys view that one cannot be prosecuted save when they are in breach of the laws of the land holds true. The unpublished policy was not part of the law and therefore could not have been applied
-Furthermore the clarity and accessibility of the law failed because the policies were unpublished; the Rule of law battles against arbitrary discretion by the executive, which clearly it had done here

Question 23

Reilly v SS for Work and pensions facts and significance?

Answer 23

Reilly litigated against SSWP after taking two weeks of unpaid work which wasn’t required for her to claim JSA. a 2013 act retrospectively validated sanctions against people looking to claim without undertaking the work

Significance- The courts have no more important function than to ensure that the executive complies with the requirements of Parliament as expressed in a statute. Further, particularly where the statute concerned envisages regulations which will have a significant impact on the lives and livelihoods of many people, the importance of legal certainty and the impermissibility of sub-delegation are of crucial importance”
-People should not be in ignorance of what rights are conferred on them. The rule of law has therefore broken down

Question 24

R (Unison) V Lord Chancellor Facts and significance?

Answer 24

Facts-The UKSC rejected the tribunal fees imposed by the Lord Chancellor as unlawful, due to its infringement of the constitutional rights of access to courts; a right inherent to the rule of law.

Significance- the fees order was ultra vires of the Lord chancellor if access to justice was impeded

3) this may be seen as the courts exercising judicial review on the actions of parliament and the executive, challenging parliamentary supremacy for the construing of legislation in order to protect the rights of citizens
- in order to uphold the rule of law there needs to be some overlap in the functions and powers of the judiciary and legislative to ensure good governance.

-Separation of powers (or partial lack of it) strikes the balance between a sovereign parliament and the rule of law, as it was the courts role in protecting the rights of citizens when parliament had failed to do so to stop the rule of law collapsing

Question 25

What did the CRA 2005 change with regards to the Lord Chancellor’s role and judicial independence?

Answer 25

• The Lord chancellor’s role is to protect the independence of the judiciary from bills or legislation which might threaten independence, as well as wider abuse of judges by the public and media, ensuring high levels of non-partisan behaviour.
• To keep the judiciary independent from parliament, matters which are the subject of legal proceedings may not be referred to in any motion, debate or question.

Question 26

What is the scope of those included in judicial independence?

Answer 26

Anyone performing a judicial function must be independent of any other branch of the state or private interests eg political affiliation

Question 27

What is the two ways in which the judiciary should be independent?

Answer 27

• independent in the sense that:1) it doesn’t belong to any of the above parties. Absence of overlap (explains why the judiciary is more independent of the other two branches than they are of each other)
  2) not subject to the control or manipulation of other parties

Question 28

What are the two ways that the judiciary may be accountable?

Answer 28

• Sacrificial accountability

- Explanatory accountability

Question 29

What is sacrificial accountability, what changes did the CRA 2005 make to sacrificial accountability and what is its downfall?

Answer 29

• Subjecting judges to sanctions
• Under CRA,, Lord chancellor and Lord chief justice can remove judges together if subject to criminal investigations. Can also issue reprimand or warnings to judges.
• The act of settlement is rarely used and therefore this accountability appears to be more theoretical than practical.

Question 30

What is explanatory accountability and who holds them to this accountability?

Answer 30

A duty on judges to explain and justify their decisions to ensure openness and fairness, just like ministers in parliament.

• very simply, judges issuing reasons in their cases.
• reports and answers to questions.
• Select committees hear from judges about the court system and procedural issues to provide parliament with useful information.

Question 31

How is judicial independence now guaranteed through the separation of personnel (CRA 2005 reform)??

Answer 31

-Constitutional reform act 2005 created Supreme court, removed judicial role of Lord chancellor and removed House of Lords members from being Law Lords

Question 32

How did judicial independence differ before 2005??

Answer 32

Appellate committee of HL used to be drawn from the house of lord and therefore judiciary. Also Lord chancellor overlapped all 3 main branches.
-There was a convention that law lords wouldn’t involve themselves in politically controversial cases, but this was political only and didn’t guarantee independence.

Question 33

What is the security of tenure for judges and what does art 7 of the act of settlement say about tenure?

Answer 33

Senior Judges cannot be dismissed because they are unpopular, or the legislature disagrees with them
Art 7 of the act of settlement 1701: judges hold office on good behaviour and otherwise be removed on address to the crown passed by both houses of parliament.

Question 34

How are judges appointed after the CRA 2005??

Answer 34

-CRA 2005 helped reduce the chance of aristocratic nepotism, as previously Lord Chancellor made appointments and considerations in private.
CRA 2005 meant that the process is more public (judicial vacancies now advertised), more inputs into process (judicial appointments commission assess and recommend).
-Not just within the hands of the executive anymore.

Question 35

What duties exist for judges to help guarantee independence?

Answer 35

Duties on judges: not permitted to engage in any political party involvement under convention, but also in the 2013 guide of judicial conduct. Judges must remove themselves from a case where they have acted without an open mind.

Question 36

Home sec v Anderson facts and significance?

Answer 36

Facts- Home sec attempted to extend the tariff of a prisoner who was coming to the end of his tariff

Significance- The sentence should be decided by the judge, not the HomeSec who is part of the executive. Anyone performing a judicial function is expected to be impartial and independent of external influence.

Question 37

What does art 6 of the ECHR 1998 say about the role of the judiciary?

Answer 37

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”

Therefore the HRA has incorporated judicial independence into our law as part of constitutional statues, indicative of the Rule of law existing as a principle which ‘pervades’ our constitution

Question 38

What was the over effect of the CRA 2005 on the public and the ROL?

Answer 38

CRA 2005 helped reduce the chance of aristocratic nepotism, as previously Lord Chancellor made appointments and considerations in private. This helps to achieve more open judicial procedure, allowing courts to be considered to better respect the rule of law in their very structure and make up, and therefore ensuring a higher level of trust in the legal system which could arguably be attributed to fall within either the form or substantive

Question 39

What is the benefit of the meaning of law being predictable/ accessible?

Answer 39

-Predictability of the meaning of law allows people autonomy to plan their lives, enhancing their ability to be morally autonomous

Question 40

What powers do courts have with regards to delegated legislation relating to the rule of law?

Answer 40

-Courts can hold delegated legislation to be invalid if incompatible with the rule of law. (may conflict with the HRA 1999 for example). Parliament can reverse this with retroactive law.

Question 41

How can morality come into both the legalistic/ formal and non-legalistic/ substantial views of the ROL?

Answer 41

-Morals come into both views in different ways; some argue that the formal view is important as a moral virtue in the nature of what flows from upholding the rule of law, as these principles of clarity, accessibility, predictability are necessary for moral autonomy of citizens lives, the state guiding the behaviour of citizens who know what to expect from the legal system. Even if a wider view of morals would suggest the laws aren’t morally acceptable, there may still be morals to be found within the formal view of rule of law.

Question 42

What is my narrow and wide view of morality relating to the rule of law?

Answer 42

• The narrow view says that the extent of morality with regards to the ROL means that the only morality provided by the ROL is that the mechanism of enacting law and the mechanism of enforcing law is clear and accessible enough for citizens to be morally autonomous
• The wide view alludes to a more non-legalistic view regarding political and philosophical questions of morality and human rights, suggesting that the content of laws is important in upholding the ROL by making sure that inherent and important rights are protected by the law.

Question 43

How might the ROL relationship to efficiency?

Answer 43

-Some argue that the ROL is there to enhance laws ability to guide action efficiently because it allows people to know what legal standards are expected of them, giving reason for actions.

Question 44

Is judicial independence a requirement of the ROL??

Answer 44

-If we accept that the rule of law has the function of protecting citizens from the arbitrary discretion of the state, it is required that citizens have access to impartial courts independent from any external persuasion or influence, to guarantee that they are not the subject of arbitrary abuse of power which impedes on their moral autonomy in the courts.

Question 45

What authors do I need to remember for this topic?

Answer 45

Raz- formal view of ROL
Allan- substantial view of ROL
Barber- legalistic v non-legalistic conceptions, morals transcend both
Dicey- 3 principles of ROL
Craig- Hard division between substantial and formal views of ROL

Question 46

What are the 3 basic Diceyan factors of the ROL?

Answer 46

1) Rule of law alone
2) Equality before the law
3) Legal spirit- constitutional law stems from ordinary law

Question 47

What does Dicey say about the rule of law related to the supremacy of parliament, and how does it make his argument a more ‘political version of the legalistic view’ as appreciated by Barber?

Answer 47

Dicey concedes that parliament is sovereign but that whilst it is free to choose how it legislates, it has chosen to reconcile with the demands of the rule of law. His ROL does not place limits on parliament but provides a political argument to legislators and MPs about how they ought to exercise their sovereignty.

• His understanding of the rule of law is that: no one is punished save for a breach of the law, everyone is subject to the same punishment for the same breach of the law, and that the common law
• This shows that he is considerate of some substantive aspects of the ROL but not enough as to transcend his perspective into the non-legalistic or substantive category as such.

Question 48

How could Razs first 3 and last 5 elements of the ROL be understood?

Answer 48

First 3= the form which the laws take
last 5= the procedural application of the law
both of which are somewhat objective features of the legal system

Question 49

What is my current understanding of the distinctions between legalistic and non-legalistic understanding of ROL

Answer 49

Legalistic= Raz and Dicey, more formal understanding of the legal system, which also incorporates some quasi-legal features attributable to the rise of the welfare state, which are said to be objectively important in allowing the legal system to operate effectively and efficiently guide the lives of its subjects. Such quasi-legal factors include economic equality, education and social equality. It is moral to allow people to achieve personal autonomy, but this is a more objectively moral standard compared to many aspects of the non-legalistic version.

Non-legalistic= Allans wider view of the rule of law in that its substance must be protective of liberty and freedom, with much more moral and philosophical strands which are more subjective, as different people attribute different levels of importance to different rights, and they are not necessarily inherent to a legal system in the way that clarity and prospectiveness are.