The rule of law Flashcards
(33 cards)
What is the rule of law?
An elusive concept that has numerous definitions.
A political philosophy that determines what the law ought to be- little more than a rhetorical device and the content of the law is irrelevant
Interpretive principle- courts use the rule of law to interpret legislation. In the UK this reigns the most true as the courts will attempt to construe legislation in line with the rule of law where possible
Extreme- the rule of law determines the validity of laws- laws that conflict with the rule of law should not be enforced.
What is the bare principle of legality in relation to the rule of law?
The bare principle of legality dictates that a law can be promulgated provided that it is enacted in the way that any relevant system prescribes- e.g. to make an Act of Parliament it needs to be approved by both houses and receive royal assent. Thus, only constitutionally authorised institutions can make law.
Relatively uncontroversial concept of the rule of law- important to note that this means that heinous laws such as slavery would be valid provided that they were made through the constitutionally authorised institutions.
What are the formal conceptions of the rule of law?
The formal conception of the rule of law does not focus on the content of the law- law is morally neutral. It suggests that there are certain principles that the law must follow so as to allow citizens to make informed decisions and plan their lives.
- must not be retroactive
- must not change too often
- must be publicly stated
- the executive should not have wide discretionary powers as it creates a degree of ambiguity
- access to independent courts
Raz is a proponent of the formal conception of the rule of law
Why do people advocate for the formal conception of the rule of law?
It facilitates legal certainty
It is morally neutral so judges do not need to think of moral considerations when formulating the law
Raz concedes that systems that deny basic human rights could still conform to his conception of the rule of law
However, arguably Raz supports human dignity as the idea of legal certainty enables individuals to plan and plot their future
Why does Raz reject the idea of good law?
As this would turn the rule of law into a political philosophy . The problem with this argument is that the rule of law itself is not morally neutral as by depending on legal certainty it respects the autonomy of the individual
The importance of the rule of law in the absence of a written constitution
Typically fundamental constitutional values and legality (the constitutionally authorised institutions and procedures) would be encapsulated in a written constitution e.g. human rights. In the absence of this, the rule of law gains more importance as it is the way we gauge the fundamental constitutional principles.
Judges decide what the rule of law means by interpreting legislation and undertaking judicial review to assess the legality of government action
What are some examples of cases where the bare princple of legality has been applied?
Jackson case
- courts held that unless the Act of Parliament had been created in conformity with the relevant procedure it cannot be valid. This is contrary to parliamentary sovereignty which deems that courts cannot refuse to apply acts of parliament.
Witham
- the claimant sued on the basis that the minister had acted ultra vires (exceeded his powers) the court declared that the minister had acted unlawfully- can only make laws within the limits prescribed to him by parliament otherwise it breaches the principle of legality
Entick v Carrington
- minister had authorised a warrant that allowed state agents to search the claimant’s house and seize his papers.
- there was no lawful basis for the warrant- clear breach of property rights
- once again the principle of legality was upheld
What are some examples of cases where the formal conception of the rule of law was upheld?
Anufrijeva
- Minister had stopped benefit payments once it was determined that Anufrijeva (an asylum seeker) would not be granted asylum. Lord Steyn invoked the rule of law claiming that an individual’s rights cannot be adversely affected without their prior knowledge- this involved the principle of legal certainty
Pierson
- the law should not have a retroactive effect
- typically the sentence for a double murder was 15 years- the home secretary wanted to extend this to 20 years- courts declared that ‘sentences should not be retroactively increased’
- Lumba v Secretary of State for the Home department
Witham
- upheld the principle of access to independent courts. In Witham the court fees would substantially increas- claimants argued that this would prevent access to the courts for low-income families. The court upheld this and stated that the rules were unlawful
Anisminic
- Legislation stipulated that the courts cannot interfere in decisions made by institutions empowered by the government. The House of Lords refused to accept that Parliament had included judicial review in this- preserving access to courts through judicial review
Does the law also recognise the substantive concept of the rule of law?
The notion of judicial review inherently reinforces substantive concepts of the rule of law. One such example of this is the right to a fair hearing. The substantive concept is further augmented by the HRA 1998. For instance, in Daly it was decided a government policy was unlawful as it infringed on rights to communicate confidentially with a lawyer.
Clear that the principle of equality is also recognised by the law. e.g. in Entick v Carrington the minister was held to the same standards as a regular citizen
What are the practical effects of the rule of law?
Courts will strike down legislation that is incompatible with the rule of law
Courts will try to reconcile legislation with the rule of law
Legislation can be deemed invalid if it does not satisfy the rule of law
Can the rule of law be reconciled with parliamentary sovereignty?
principle of parliamentary sovereignty suggests that the parliaments can act contrary to the rule of law- even releasing retroactive legislation. This would suggest that legislation enacted by parliament can trump the rule of law.
What is the significance of the HRA 1998?
The HRA 1998 gives effect to the ECHR in the UK (binding upon the UK). Many of the principles regarding the rule of law and the HRA overlap (especially the formal concept)
The HRA enables courts to apply the doctrine of incompatibility to strike down legislation that contravenes the HRA- courts are more empowered to scrutinise. This has resulted in courts scrutinising the actions of the executive more ruthlessly than in the past/
Using the doctrine of incompatibility does not mean that the Act is unconstitutional. Nevertheless, it is a significant power.
What are the three branches of government?
Executive- central and devolved governments- propose and implement public policy
Legislative- scrutinise and make legislation
Judiciary- resolve disputes
What is the basic idea of the separation of powers doctrine?
There should be three branches of government and each should be distinct from the other.
The strict interpretation suggests that the branches should not overlap- each branch should perform separate functions, the branches should not exercise power over another and no individual should be a member of more than one branch.
What are opinions about the separation of powers doctrine?
It has been regarded as the ideal government structure- one of the ‘two great pillars of Western political thought’
Implications that it underpins a constitutional government
Why should we embrace the separation of powers doctrine?
- Prevents functions from being performed by a single branch of government
- provides checks and balances ensuring against the abuse of power - allows ministers to be challenged
- prevents tyranny and facilitates socially useful conduct by government
- bolsters democracy
How does the separation of powers strengthen democracy?
The legislature performs the legislative function- most significant changes to policy can only be done by the branch that is most representative to the people.
What are the different conceptions of the separation of powers doctrine?
The above requires each branch to interfere with and undertake the business of another. This is the partial conception- idea that breaches of the doctrine are acceptable in order to prevent abuses of power and tyrannical behaviour. This partial view is also necessary for the survival of certain administrative bodies and government departments which span all three institutions. There is considerable overlap between the executive and parliament as the executive asserts influence over parliament.
Barber agrees that the lines should not be so aggressively demarcated
Absolute and pure conception- idea that the dividing lines between the executive, judiciary and legislature should be crystal clear and not breached under any circumstances. This is unrealistic. Important to note that the independence of the judiciary is strictly adhered to.
To what extent does the UK constitution adhere to the separation of powers?
Case of the Fire Brigades Union
- minister actively refused to implement a statutory compensation scheme and this was deemed unlawful by the courts
- controversy over whether the courts could intervene in such a situation where the concerned legislation was not in force- minority conceded that it was a political matter/ separateness of the judiciary. However, the majority expounded the importance of checks and balances to ensure that the executive does not arrogate itself powers of repealing legislation.
What is the purpose of the separation of powers doctrine?
Prevent the over-concentration of powers
Ensures those exercising public power are held to account and that their power is being used to facilitate public good.
What is the purpose/ role of the judiciary?
Resolve disputes
Interpret legislation
Developing common law- the court has law-making powers
Constitutional function to uphold fundamental constitutional principles such as the separation of powers and rule of law
What is judicial independence?
Judiciary free from any political interference and public opinion
How has the judiciary changed?
More involved in holding ministers to account after the HRA and there has been a growth of judicial review of government actions
What is the meaning of rule of law?
Government by law and not by men. The literal sense of the rule of law is that people should be ruled by the law and the law should be such that people will be able to be guided by it (formal conception of the rule of law)
