Flashcards in Week 4- The Rule of Law Deck (49)
What are Diceys three conceptions of the Rule of Law?
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.
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??
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.
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?
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
What does the constitutional reform act 2005 s1 say about the rule of law?
"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.
What does Allan regard as the desirability in the Rule of Law as a constitutional principle 'pervading' our constitution?
-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"
Who does Allan regard as the 'vindicator of our rights"?
The courts as opposed to parliament.
What name does Allan give to the Rule of law as part of our constitution??
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"
What is Allans view with regards to the rule of law?
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)
What is Razs understanding of the rule of law?
-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)
What does Raz say the ROL is NOT concerned with?
“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,
What is Razs metaphor for the rule of law?
"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.
What does Raz say with regard to slavery?
"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.
Is there a tangible link between the substantial and formal view of the rule of law?
-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
What is the benefit of a formal ROL?
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.
How might economic and social issues be important in upholding the formal view of the ROL?
-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
How does Barber distinguish different aspects of the rule of law and why?
Legal (formal) and non-legal (substantial)
-He feels that the formal and substantive views of the ROL has blurred lines between the two
What is Barbers legalistic view of the ROL?
-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)
Why does Barber disagree with Craigs division between formal and substantive?
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.
How does Barber describe Razs and Diceys formal understanding of the rule of law being 'extended'?
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.
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?
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
Facts and significance of Purdy v DPP
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.
Walumba Lumba v SS for Home department facts and significance?
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
Reilly v SS for Work and pensions facts and significance?
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
R (Unison) V Lord Chancellor Facts and significance?
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
What did the CRA 2005 change with regards to the Lord Chancellor's role and judicial independence?
-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.
What is the scope of those included in judicial independence?
Anyone performing a judicial function must be independent of any other branch of the state or private interests eg political affiliation
What is the two ways in which the judiciary should be independent?
-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
What are the two ways that the judiciary may be accountable?
What is sacrificial accountability, what changes did the CRA 2005 make to sacrificial accountability and what is its downfall?
-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.