Rule Of Law Flashcards
What is the formal perspective on rule of law?
- legal procedure = clear and certain
- prospective
- law = clear
- applied equally
- independent judiciary
What is different about the substantive perspective?
Moral component also necessary
No rule of law without fundamental rights and freedoms
What are Dicey’s 8 fundamental principles of the rule of law?
- Accessible, clear and predictable
- Legal issues resolved through legal processes
- Apply equally to all
- Protect human rights
- Access to justice without inordinate expense/delay
- Public officials exercise powers in good faith/within limits
- Fair
- Comply with international law
What is the requirement of legality?
- govt interference should be sanctioned by legal authority
- legality principle - parliament must expressly restrict rights and freedoms
- public bodies - statutory provisions will define and limit capacity
- independence of judiciary
What are three examples of retrospective legislation?
- War Damage Act - not paying damages for property destroyed in war
- War Crimes Act - punishing war crimes by non british people
- Jobseekers Back to Work Schemes Act - judgement to give rebate for those who refused to take part overriden
What was the ruling in R v Somerset County Council ex parte Fewings?
Ban on stag hunting for ethical reasons was not using their powers for its intended purpose
What does legislation often confer?
Discretionary power
What are the exceptions to the rule of law applying equally to everyone?
- Monarch is above (criminal) law
- Judges in higher courts immune to civil litigation for acts done within their official jurisdiction
- Parliamentary privilege (against defamation)
- Diplomatic immunity
- Children not subject to same laws as adults
- Cuts to legal aid funding?
What is the most obvious barrier to obtaining justice?
Not enough money to pay legal fees
Not being able to secure pro bono
Cuts to legal aid
Court fees and potentially paying other side costs
What are examples of objective differences that justify/don’t justify differentiation?
- age of criminal responsibility
- deporting non British nationals
- not justified - detaining non nationals terrorism suspects without charge
What is an example of rule of law being undermined by unequal application of the law?
Asian/ethnic minorities being targeted more by Terrorism Act
Do we have human rights without the HRA and why is it needed?
Yes under common law but HRA provides clarity + mechanisms of enforcement
What has Liberty identified as significant threats to the right to fair trial?
- fast track extradition treaties
- widespread use of Asbos and civil orders
- closed material procedures for terrorism suspects
What was the basis of the JISC report on breaking international rule of law?
Overseas Detainee mistreatment
What does rule of law mean for government criticising judges?
They should respect the role of judges as the final arbiters of what the law means
