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Flashcards in Rule of Law Deck (9)
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1

Dicey
No man is punishable or can be lawfully made to suffer in body or goods except for...

..a distinct breach of the law established in the ordinary legal manner before the ordinary courts of the land ... It means ... the absolute supremacy ... of regular law as opposed to the influence of arbitrary power ...’

This element has a number of connotations:
▪ Legal certainty - Citizens should be able to rely on laws that are both made and set out clearly. There should be no arbitrary exercise of power, where the Government disregards the law and acts in any manner it sees fit.
▪ Personal liberty - Citizens should be detained and subject to punishment only if they have broken the law.
▪ Due process of law - Citizens have a right to fair procedures for determining civil or criminal liability

2

Dicey
‘... no man is above the law ... every man and woman, whatever be his rank or condition, is subject to...

...the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals ...’

This element is concerned with equality before the law. This means not only equality between citizens, but also between public officials and citizens.

Thus:
▪ Like cases should be treated in like ways; there should be no unjustified discrimination (for example, on the grounds of race or gender).
▪ State officials have no exemption from legal control or accountability as a result of their position, and are subject to the ‘ordinary’ law of the land (see Entick v Carrington)
▪ Members of the executive should not legislate or adjudicate in court cases (this links to the principle of the separation of powers).

3

Dicey
'.‘... the general principles of the constitution (for example, the right to personal liberty, or the right of public meeting) are with us as a result of....

...judicial decisions ... in particular cases brought before the courts.’

Dicey sees the courts as protectors of individual liberty, thereby developing constitutional principles through ‘ordinary’ judicial decisions (this links to case law being an important source of constitutional law).

4

Observing the rule of law should ensure that:

1. the Government is prevented from exercising arbitrary power (because ‘regular’ law is supreme);

2. the Government can be held to account for its actions (through the process of judicial review, in which the courts ensure that the Government does not exceed or abuse the powers which it has been granted);

3. the law is set out clearly for all citizens and is made properly following a set procedure;

4. the law does not operate retrospectively (ie someone should not be punished for an act that was not a crime at the time he carried out that act, if that act subsequently becomes a crime);

5. there is equality before the law for all citizens;

6. there is equal access to the law and the Government or state has no special exemptions or ‘get-outs’;

7. citizens have a means of legal redress for their grievances; and

8. the independence of the judiciary is maintained, thereby preserving the separation of powers and preventing the Government from exercising its powers in an arbitrary way.

5

Lord Bingham's definition

1. The law must be accessible, intelligible, clear and predictable.
2. Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion.
3. The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.
4. The law must afford adequate protection of human rights.
5. Means must be provided for resolving, without excessive cost or delay, civil disputes which the parties cannot resolve themselves.
6. Ministers and public officers must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers.
7. The adjudicative procedures provided by the state should be fair.
8. The state must comply with its obligations in international law.

In some areas Lord Bingham’s definition overlaps with that of Dicey (for example, the idea that laws must be certain and the concept of equality before the law), whilst in other areas Lord Bingham goes a little further (for example, the importance of the protection of human rights and compliance with international law).

6

Manifesto of JUSTICE

1. The UK should adhere to international human rights standards in both domestic and foreign policy, with human rights being ‘constitutionally protected’ within the UK.
2. The independence of the legal profession and the judiciary must be upheld, with members of the Government to refrain from criticising the judiciary.
3. Due process of law and the right to fair trial must be protected.
4. There should be equality before and under the law, with no discrimination.
5. There should be an equal right of access to justice, with no one deprived of this right as a result of financial or other disadvantage.
6. Parliament should have greater powers to scrutinise legislation and hold Ministers to account for their actions. In particular, the scope of the Royal Prerogative should be restricted.
7. Greater co-operation between EU member states must be accompanied by greater protection for rights of individuals.

7

Modern definitions of the rule of law include...

Protection of human rights
Independence of legal profession
Affordable access to justice
Compliance with international law
Parliamentary scrutiny of legislation/restriction of royal prerogative

8

R (on the application of Jackson) v Attorney-General [2005] UKHL 56, Lord Hope referred to the rule of law enforced by the courts as being

the ultimate controlling factor on which our constitution is based’.

9

R (on the application of Jackson and others) v HM Attorney General [2005] UKHL 56, obiter comments from the House of Lords suggested that

some of their Lordships would be prepared to strike down legislation which infringed the rule of law.