Public Law I: Rule of Law

Rule of Law

Meaning of the Rule of Law

• Became significant and consitutionally important in recent years

• directly referenced as Constitutional Principle in s1 of Constitutional Reform Act 2005

Definition of Rule of Law

• No Definition in Constitutional Reform Act 2005

• Lord Bingham wrote in ‘The Rule of Law’: ‘the core of the existing principle is that all persons and authorities within the state, whether public or private, should be bound by and entitled to the law, publically made, taking effect (generally) in the future and publicly administered in the courts’

Formal Schools of Thought

prof. Joseph Raz

• Law procedure must be clear and certain

• law must be prospective

• law must be clear

• it must be applied equally

• Judiciary must be independent

Substantive Schools of Thought

Ronald Dworkin

• The same formal requirements, but a moral component is also necessary

• Without respect for fundamental human rights and freedoms, a rule of law society cannot be said to exist

The Rule of Law and Seperation of Powers

• The judiciary’s perceived role as guardians of the rule of law

• Creates a contentious question of how far the courts can pursue this role in actively developing and shaping the law

• Clear distinction between judiciary and parliament and judiciary and executive

• Doctrine of separation of powers is intrinsic to the Rule of Law because the principle requires that the executive is prevented from exercising its power arbitrarily

Content of Rule of Law

• Lord Bingham has drawn on the work of Dicey and set out 8 fundamental principles that make up the Rule of Law in deomocratic societies

Lord Bingham’s 8 Fundamental Principles of the Rule of Law

1. the law should be accessible, clear and predicable

2. legal issued should ordinarily be resolved through legal process not through exercise of administrative discretion by Government Officials

3. The law should apply equally to all

4. the law should afford adequate protection for human rights

5. there should be access to justice in courts without inordinate delay or expense

6. public officials including ministers should exercise the powers they have been granted in good faith and within the limits of those powers

7. legal and adjudicative processes should be fair

8. the state should comply with its obligations under international law

Requirement of Legality

• Government should act within its confines and in accordance with the law

• Government interference with persons or property must be sanctioned by a legal authority Entick v Carrington

• Legality Principle: Parliament cannot be seen to have inteded to restrict important rights and freedoms unless made clear ex parte Simms

• many public bodies are incorporated by statute and statutory provisions will define and limit their legal capacities

• Independence of the judiciary is essential because courts determine whether government power is lawfully exercised

Judicial Review and Rule of Law

• Government cannot simply be trusted to adhere to the principle of legality

• Judicial Review is a mechanism the Rule of Law is protected by and arbitrary use of governmental power is prevented

• Administrative courts consider whether an action is lawful in accordance to powers granted and rights protected by:

  • Legislation: Court cannot review primary legislation however a court can assess whether a public body had complied with the provisions of the act. Courts can also review legality of delegated legislation

  • Common Law and Perogative Power: Court can assess whether government has breached common law constitutional right or lawfully exercised perogative power