Rule of Law

It was recognised in S1 Constitutional Reform Act 2005 and it is generally said to include what?

• The absence of arbitrary power

• Equality before the Law

• Supremacy of ordinary Law

What is the Classical Greek understanding of the Rule of Law: Plato- The Philosopher Kings?

• The law exists independently of humans and exists “perfectly” which is accessed through theory and logic.

• Only philosopher Kings can reason to this so should be trusted to enact it independent of their motivations.

• Create it on the objective perfection that exists independently of t hemselves

What is Platos main argument?

• The law can exist independently of people

How is this seen from comments made by Viscount Simmonds in Shaw V DPP?

“There remains in the court.. a residual power… to enforce the supreme and fundamental purpose of the law”

How does Shaw V DPP demonstrate the Platonic ideas of the rule of law?

Because judges by creating a new offence seem to be indicating there is a form of “perfect law” the common law is based on illustrating how it is an essential principle

However what did Lord Reid feel about the dissenting judges in Shaw V DPP?

There were different views and no universal agreement on whether the law should create an offence of outraging public decency

What was Aristotle’s argument on the limits of power?

• The law should apply equally to all and limit rulers’ whims (arbitrary uses of power) –

• as its empirically more realistic to assume leaders may become corrupt

• (Plato is just too idealistic for Aristotle who favoured equality before the law and limiting discretion).

What is Aristotles key argument?

• The law should apply equally to all

• limit arbitrary (random) uses of power

How is Aristotle’s argument seen in The Case of Proclamations?

“The King hath no perogative, but what the law of the land allows him”

However what has delegated legislation enabled Parliament to do?

Has granted sweeping powers to executive- via orders in council (the powers in the Emergency Powers Act 1920 and the Civil Contingences Act 2004 are wide and sweeping creating wide discretion

What is A.C Dicey view on the supremacy of ordinary laws?

• Ordinary law must be supreme – there cannot be different forms of law that apply to different people (i.e., administrative courts for government officials) –

• all should be accountable to the same law to prevent corruption; thereby ensuring equality before the law.

• This should be overseen by an independent judiciary.

What are the key arguments of A.C Dicey?

• There should be one “ordinary law”

• The law should apply to all people

• Independent Judiciary

Where was Diceys argument shows in Re:Pinochet?

• In Pinochet, where the House of Lords considered whether Pinochet as a former leader accused of war crimes, had immunity from prosecution.

• This was considered in an ordinary court (The House of Lords) and not a separate court for leaders.

Moreover, The fact that trial was re-heard, due to the perception of bias of Lord Hoffman in the original House of Lords hearing, shows what?

an adherence to Dicey’s view that such cases should be overhead by an independent judiciary.

What is Raz view on the Rule of Law?

• For a modern legal system, some discretion is necessary –

• but it should be limited so far as is possible –

• allowing the law to be ascertainable and thus citizens to guide their actions.

How is Raz’s view seen in The Courts articulation of “Wednesbury” unreasonableness?

• The courts articulation of “Wednesbury” unreasonableness enables the executive to have a wide range of powers –

• with the courts showing due deference in some areas –

• but, combined with procedural and substantive review –

• limits the effect of this discretion.

However what are most statutory instruments approved by?

• As most statutory instruments are approved by negative resolution, and there’s around 3,000 each year,

• their often not read and so it’s hard to argue the law is ascertainable or can guide actions in these cases.

What is Honres view on the rule of law?

• A person should not be sanctioned –

• except in accordance with the law in a fair and predictable way–

• protecting individuals from arbitrary or unjust actions of the state.

How is Honres argument not seen in R V Mirsa (MR for gross negligence manslaughter) or negligence (Robinson V CCWYP)?

• The mens rea for gross negligence manslaughter essentially works by the jury being asked whether they feel that negligence was so gross that it should be criminal.

• This clearly violates Honré’s principle that you should not be punished without fair and predictable rules.

• Moreover, the introduction of “fair, just and reasonable” to the tort of negligence undermines the predictability of the law as what may seem reasonable to one may not be to another.

However the offence of gross negligence manslaughter is so wide as it tends to only apply to who?

• The offence of Gross negligence manslaughter is so wide as it tends to only apply to professionals

• who would have had an idea of the required standard –

• therefore, whilst it may seem unpredictable to those who are not part of the profession it arguably is for those that are.

• Moreover, as negligence works incrementally it’s likely that this uncertainty will decrease over time.

What is Lord Binghams Modern Conception?

• Introduces the idea that Human Rights is a cornerstone of the Rule of law

• and stresses and importance of international law in achieving a true rule of law.

How is this shown in the enactment of the Human Rights Act 1998?

• The enactment of the Human Rights Act 1998 - which binds public bodies, often the executive, to act in a way that is complaint with the convention rights.

• A convention whose ultimate arbiter is a supranational (international) court: the European Court of Human Rights.

However, what does S6 of the Human Rights Act 1998 explicitly exclude?

• S6 of the Human Rights Act 1998 explicitly excludes the House of Commons and Lords from being bound as public bodies.

• Moreover, the fact Parliament remains sovereign – as do Acts of Parliament –

• means Parliament remains completely unbound and can make or unmake any law it chooses.