Rule of Law and Separation of Powers Flashcards
(24 cards)
What is meant by the rule of law
Practical all persons should be bound by and entitles to the benefits of laws lord bingham
Rule of law is an amalgam of standards expectations and aspirations
Classifications of the rule of law
Formal;
* Procedural or surface considerations
* Not about content, but still concerned with clarity, equality, accessibility, and the prospective nature of law
Substantive;
In addition to the formal approach…
* Concerned about content (the substance)
* Value considerations
* Rights
* Deeper, moral implications
* Fairness, justice
Raz’s Principles of the Rule of Law
‘All laws should be prospective, open and clear’ (198)
‘Laws should be relatively stable’ (199)
‘The making of particular laws (particular legal orders) should be guided by open, stable, clear and general rules’ (199-200)
‘The independence of the judiciary must be guaranteed’ (200-201)
‘The principles of natural justice must be observed’ (201)
‘The courts should have review powers over the implementation of other principles’ (201)
‘The courts should be easily accessible’ (201) ‘Long delays, excessive costs, etc., … turn … law to a dead letter’ (201)
‘The discretion of the crime preventing agencies should not be allowed to pervert the law’ (201-202)
What does Raz emphasise about the rule of law
Law is morally neutral
Bingham on Rule of Law
Accessibility of law and legal mechanisms (p.69)
Resolution of questions of rights and liability ordinarily by law and not discretion (p.72)
Equality before the law (p.73)
Protection of fundamental human rights (pp.75-76)
Existence of means to resolve civil disputes (p.77)
Exercise of power by ministers and public officials in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers, and not unreasonably (p.78)
A fair trial / due process of law (p.80)
Compliance by state with international law (p.82)
Dworkin view on rule of Law
Not all of laws meaning found in rules but values too
empahsis on principled outocme
What does Trevor Allan say on the rule of law
We are obliged to confront wider questions of liberty, equality and autonomy in order to make concrete our commitments to the rule of law.’ 39
What are AV Diceys 3 Characteristics of the rule of law
All are equal before the law
Law should be certain there should be no room for discretion
English constitution is and constitutional rights are a product of judicial decision making
The content of the law is of less consequence than the manner in which it is created and enforced.
Formal equality is important
Discretion (choice) in the application of law should be avoided (note continental misconception!)
Judges interpret and develop the law, and in so doing protect rights
Criticisms of Dicey regarding rule of law
Jennings - ignores complexity of the modern administrative state (powers of authorities)
Heuston - rule of law is just good practice in a democracy – there’s nothing distinctively legal about it.
Rule of Law is a constitutional principle based upon practice of liberal democracies
Allan - Problems with accounts of parliamentary sovereignty v Rule of law (parliamentary sovereignty and rule of law are more interdependent than indepenent)
Equality before the law
Covid 19 inquiry transcript
when rules are made, everyone within the system should be subject to said rules
Government may not act arbitrarily
Laws must be made an changed according to a set process
Entick v Carrington
gov claimed power to seize papers inside private dwelling
gov claims to have power that parliament has removed
Ex parte fire bridages union - compensation scheme
something in statute cannot be changed by prerogative
Legal rules should be clear
R (oao UNISON) v Lord Chancellor
employment tribunal fees being too high
Clarity of law allows one to plan their lives
Legal processes should accord with the principles of natural justice
Ridge v Baldwin
Judiciary should be independent and partial
ex parte fire brigade union - … the normal function of the executive to carry out the laws which Parliament has passed, just as it is the normal function of the judiciary to say what those laws mean.”
R(oao Miller) v SSEU - the role of the judiciary is to uphold and further the rule of law; more particularly, judges impartially identify and apply the law in every case brought before the courts.”
The courts should be able to review the implementation of laws
M v Home Office
Law should be openly administered
A v BBC (Scotland)
Courts should be Accessible
R (oao UNISON) v Lord Chancellor
impediments to the right of access to the courts constitute a serious hinderance
Access to justice is key to liberal democracy
UNISON [2017]
The Rule of Law and the separation of powers
Executive cannot overrule judiciary merely because he does not agree with it
would go against rule of law and seperation of powers
R (OAO Evans) v Attorney General
Rile of Law and Parliamentary Sovereignty
“In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts … a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament … cannot abolish.”
Lord Steyn [102]
“The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based.”
Lord Hope [107]
“The courts will treat with particular suspicion (and might even reject) any attempt to subvert the rule of law…”
Lady Hale [159]
Jackson v AG [2005] UKHL 56
principles of rule of law
Equality before the law
Government may not act arbitrarily
Legal rules should be clear
Legal processes should accord with the principles of natural justice
Judiciary should be independant and impartial
The courts should be able to review the implementation of laws
Law should be openly administered
The courts should be accessible
Constitutional conventions and the rule of law
Constitutional conventions are not within the remit of the judiciary which is to protect the rule of saw
R (oao Miller) v SSEEU
Separation of Powers
Theory in western political thought when it comes to political power
power should not be concentrated in one place
Considerations within separation of powers
nature of powers which state can exercise relationships between different powers of the state
function of powers
