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LEGAL ACCOUNTABILITY - Coggle Diagram
LEGAL ACCOUNTABILITY
RULE OF LAW
Legal Accountability = compliance with rule of law and the separation of powersRule of Law = all persons and authorities...should be bound by and entitled to benefit of laws" - Bingham
Dicey's (favoured) RoL
1. Exclusion of wide discretionary power
- problem = too broad for the way in which modern society runs
2. Equality before the law in the ordinary courts
- problem = many other legal systems have courts for public officials
3. Common law as the basis for rights and liberation of individual
- problem = many written constitutions that comply with the broad principle of RoL
Fuller's says the law must be
- General
- Made public
- Prospective
- Understandable
- Not contradictory
- Possible to comply with
- Stable and constant through time
- Applied and enforced
Addition to Fuller's Rule of Law
- "RoL requires recognition of moral and political rights"; R. Dworkin (1985)
- "RoL requires that people are treated with the respect that their equal dignity as citizens demands"; Allan (2001)
Distinguish between Fuller and Dworkin/ Allan
- Fuller = formal/ thin
- Dworkin/ Allan = substantive/ thick
Bingham's RoL (2011)
- Accessible, intelligible, clear and predictable
- Legal right should be resolved by application of the law
- Apply equally to all
- Afford adequate protection of fundamental human rights
- Means must be provided for bona fide civil disputes
- Ministers and public officers must exercise the power conferred on them reasonably
7. Adjudicative procedure should be fair
- Compliance with its obligations in international law
Academic Scholarship
Dicey (1915) = "[PS and RoL] are two principles which pervade the whole of the English constitution"
Jowell (2015) = "one of the fundamental principles of our uncodified democratic constitution"
Case Law
- Entick v Carrington (1765)
- Aufriejeva (2003); recognition ; "it is a constitutional principle that the RoL must be observed" - Lord Steyn
- Jackson (2005); increasing importance
Statute
- Constitutional Reform Act 2005; established supreme court
= s.1; this act does not adversely affect -
= a); the existing constitutional principle of the RoL
RoL's affect on the constitution
- limits legislative power
- used in the absence of a codified constitution
SEPERATION POWERS
- excutive, Parliament, judiciary
Purpose
- to avoid rulers being able to "suit the law...to their own private advantage" - J. Locke (1690)
- if power is not separate, "there's no liberty" - Montesquieu (1748)
- the role of each branch is to check up on each other to make sure no one is abusing their power
Dicey's view = separation of powers as a key principle in France, but "alien to the conception pf the modern Englishmen"
Central UK principle?
- the UK has a "concentration of powers"; G. Marshall (1971)
- lack of control over the executive branch from the legislative one; W. Bagehot (1867)
- Constitutional Reform Act 2005some people argue there's no need for separation of powers, you just need judicial independence alongside rule of law
Prorogation Case; BoJo prorogued Parliament
- prorogation = suspending Parliament
Justifiable?
Government = court stepping in would be a breach of separation of powers
Courts = by checking the executive power, the supreme court will give "effect to the separation of powers" [34]Thoughts in mind when deciding the legality of the case:
- protecting PS
- protecting parliamentary accountability
- protecting the constitutional role of Parliament
Critique of judgement
- it is "an assertion of judicial supremacy"; Loughlin (2019)
- "a court can enter with judicial review"; Divisional Court (2019)
Defence of Prorogation
- "supreme court...serve[s] as a guardian of constitutional principle"
Growing Role of Separation of Powers
- no mention of rule of law in prorogation case
- protecting the constitution functions
-
JUDICIAL INDEPENDENCE
Constitutional Controversies
- Do ministerial duties to the RoL go beyond judicial independence?
- Letter to Lord Long; there's a trend, in practice, to minimise the special role of RoL
- How far does the duty to defend judicial independence stretch?
- Miller (2017); Lord Chancellor said her duty did not extend to defending the judiciary against newspapers. Lost confidence from the judiciary
Current Controversy
- Charlie Elphicke (2020); MPs tried to use their House of Commons notepaper as a way of interfering with the judicial decision. Courts did not appreciate this
Constitutional Reform Act 2005Section 3: Ministerial Duties
- s.3(1) = Lord Chancellor, and other ministers...and all responsibility for matters relating to the judiciary or the administration of justice uphold the continued independence of the judiciary
- s.3(5) = Lord Chancellor and other ministers...must not seek to influence particular judicial decisions
Part 3: Supreme Court
- there was a previous sense that they weren't independent
Part 4: Judicial appointments and disciple
- make a break from prerogative powers because they posed a threat to independence
RULE OF LAW + PS
Evans (2014)
- debate about whether it was in the public's interest to have some letters from Prince Charles, released
- FIA 2000, s.1 = everyone in the UK has a right to information disclosure
- FIA 200, s.37 = qualified exemption for royal communication
- FIA 2000, s.53(2) = if the AG has, on reasonable grounds, formed an opinion that there's no failure to comply with the Act, the decision of the court shall cease to have effect
- Lord Neuberger = applies the principle of legality as s.53 breaches the RoL and gives this section a "significantly narrower application"
- Lord Hughes = "it is an integral part of the RoL that courts give effect to PS". "s.53 is simply too strained a construction of the section"
- Lord Wilson = "the court did not interpret s.53, it re-wrote"
Evans challenges PS
- suggests the courts will use their interpretative power so that they ignore PS
Evans preserves PS
- Parliament could have just ignored the judgement in Evans
Power of judicial interpretation, given through the principle of legality, is questionable
- Privacy International (2019); Courts use this to create its own meaning, and not the meaning Parliament intended
= preserves RoL; places RoL as sovereign
= challenges RoL; need for consistency (Fuller) isn't complied here
PRINCIPLE OF LEGALITY
Definition = presumption of legality used to enforce the legislature's compliance with the RoL Context
- Pierson (1998); "courts may approach legislation on this initial assumption
- "principle of legality means that not only Parliament cannot override fundamental rights or the RoL [and] cannot confer on another body"; Lord Hope in Axa (2012)
JUDICIAL ACCESSIBILITY
Unison (2017)
- increase the fees needed to access employment tribunal
- Lord Reed; "people must in principle have unimpeded access to them, without such access, laws are liable to become a dead letter"
Legal Aid
Baroness Hale lecture
- everyone must have access to the courts
- lawyers must prepare, present, wtc
- this is expensive
- legal aid is a prerequisite of the RoL