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Con & Ad - Rule of Law (Current status in UK (Constitutional balance…

- - - - Proper authority for actions
      - Consistency
      - Moral neutrality
      - Prospective no retrospective
      - Clarity and certainty
  - - - Jowell - "principle of institutional morality"
      - Lord Bingham (Sir Davids Williams Lecture, 2006) - Protection of human rights
      - Dworkin - "rights conception" of ROL
  - - - "a land where the laws may be harsh but where men were ruled by law and not by caprice"
  - - - Clarity
        
        Sunday Times v UK (1979)
        
        "prescribed by law" (ECHR, Art 10)
        
        Shaw v DPP (1962)
      - Non-retrospective law
        
        R v R (1991)
        
        War Damages Act 1965
        
        War Crimes Act 1991
        
        Jobseekers (Back to Work Schemes) Act 2013
    - - Discretion = arbitrary power
        
        Modern complexity of government - state interventionism
        
        Von Hayek - "Road to Serfdom"
        
        Red light v Green light
    - - Exceptions
        
        Partial Crown immunity
        
        MPs' privileges
        
        Judges - immunity from suit
        
        Diplomatic immunity
      - M v Home Office (1993)
    - - Authorisation required for government to impinge on individual rights
        
        Lord Camden in Entick v Carrington (1765) - "he is bound to shew by way of justification that some positive law has empowered him"
        
        Justice Laws in Ex p Fewings (1995) - "action to be taken must be justified by positive law"
      - Judicial review of lawfulness of executive action
        
        Executive should act...
        
        Within powers given - not "ultra vires"
        
        For correct purposes
        
        In good faith
        
        Fairly
        
        Reasonably
    - - Fair legal process
        
        Access to justice
        
        Legal aid - LASPO 2012
        
        R (UNISON) v Lord Chancellor - "Fees Order 2013" - fees imposed for claims to employment tribunals
        
        Lord Reed - "The constitutional right of access to the courts is inherent in the rule of law"
        
        Article 6 ECHR - fair legal procedures
        
        Independence and impartiality of judiciary
        
        "Guardians of the rule of law"
        
        Judicial deference
        
        Liversidge v Anderson (1942)
        
        Ex p Hosenball (1977)
        
        Ex p Cheblak (1991)
        
        McGonnell v UK (Baliff of Guernsey)
    - - Human rights
        
        A & Others v SoS Home Department (2004)
      - Dispute resolution
      - Respect for international law
- - - - R v Secretary of State for the Home Department, ex parte Simms - blanket ban on journalists using info gained in interviews with prisoners - found to be unlawful
        
        Lord Hoffman - principle of "legality" - Parl Sov means can enact legislation contrary to human rights but nonetheless - "Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overriden by general or ambiguous words."
  - - - Judicial review
    - - Lord Neuberger - "A statutory provision which entitles a member of the executive... to overrule a decision of the judiciary merely because he does not agree with it would not merely be unique in the laws of the UK. It would cut across two constitutional principles which are also fundamental components of the rule of law."