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The Rule of Law - Coggle Diagram
The Rule of Law
The Judiciary and the need for judicial independence
R v Secretary of State for the Home Department ex parte Pierson:
"Unless there is a clearest provision to the contrary, Parliament must be presumed not the legislate contrary to the ROL
R v Secretary of State for the Home Department ex parte Simms and Anor (2000):
Facts: Case concerned a prisoner's right (under Art.10 of the ECHR) to communicate with journalists with a view to challenge the status of the HRA
Per Lord Hoffman: "The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of this is that Parliament must confront and accept their political cost. Fundamental rights cannot be replaced by general/ambiguous words. In the absence of express language, the courts can presume even the most general words were intended to be subject to the basic rights of the individual . This way, courts of the UK, by acknowledging the sovereignty of Parliament, apply principles differently
The Meaning of RoL and its virtues
Dicey's and his Rule of Law
No man is punishable or can be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land
Designed to deny governments any right to make secret or arbitrary laws, and to limit the discretionary powers of government (this rule protects the individual)
To comply with this requirement:
Laws must be open, clear accessible and certain
Laws that are secret or arbitrary are not unjustifiable and offends the reciprocal relationship which constitutional democracy depends on
If laws are not clear, the individual won't know what rights he or she has
Delegation of broad powers by order of the sovereign Parliament, makes it difficult to challenge before a court of law
Due to this they are not consistent with this 1st principle of the R.O.L
Waddington v Miah (1974):
HoL interpreted the Immigration Act 1971in a manner that denied retrospective effect to criminal offences in relation to criminal offences, using it as an aid in construction for Article 7 of the ECHR - guarantees freedom from retrospectivity
Retrospectivity - having new consequences that arises
Burmah Oil Company v Lord Advocate (1965):
HoL awarded compensation for destructions of oil installations during wartime. But the government quickly introduced legislation nullifying the decision in the War Damages Act 1965
Case demonstrate subordination of the judiciary to parliamentary supremacy, and the limits imposed on the judges capacity to uphold rights
R v R (1991):
The HoL upheld the conviction of a husband for the rape of his wife, arguing that the rule against liability was draconian.
In a challenge to this decision under the ECHR, on the basis that its in breach of Article 7 of the Convention, making retrospectivity unlawful
Hence, Court of Human Rights removing immunity of the husband from being liable shows a move towards equality of sexes
No man is above the law; every man or woman no matter rank/condition is subject to the ordinary law of the realm and amendable to the jurisdiction of the ordinary tribunals
It is believed that the Ministers have power to enact DL, the Crown enjoy immunities under the law, the government acting in the name of the Crown exercise prerogative powers that defeats rights of individuals
Per Sir Ivor Jennings, no 2 citizens are totally equal
There must be an extent to which the government and public officials are subject to law and being accountable for their actions in ordinary courts
To comply with this requirement:
1. There must be consistent application of the law irrespective of status. No one is immune from criminal prosecution (other than the monarch)
Sir Ivan Jennings criticises Dicey's views (he is salty about it):
The principle is too narrow on interpretation: "it is a small point upon which to base a doctrine called by the magnificent name of "rule of law", especially when it is used in a very different sense"
Dicey is motivated by his conservative views: Dicey shows his preference for certainty within the law rather than concern for the law being directed for social justice
The general principles of the constitution (e.g. rights to personal liberty & right to public meeting) are the result of judicial decisions determining the rights of individuals in cases brought before the courts.
The 3rd principle reveals his preference for common law protection of human rights above a specially-formulated code of rights, thus showing a faith in the judiciary which is not sustainable
The HRA1998 incorporated rights protected under the ECHR oh Human Rights into domestic law, where citizens no longer have to undertake lengthy processes of applying to the Court of Human Rights in Strasbourg, but can seek remedy in domestic courts
To comply with this requirement:
1. Every public body needs to comply with the Convention Rights, failure to do so is to act unlawfully unless there is available alternative form of action due to requirements of primary legislation
Exceptions
Malone v Police Commissioner (1979):
Government could lawfully listen to telephone conversations because no laws prevented it until it became a breach of Art 8 of the ECHR
Reconciling potential conflicts between parliamentary sovereignty and the rule of law
The attitude of the courts in upholding ROL (between Parliamentary Sovereignty and Rule of Law)
R v Secretary of State for the Home Department ex parte Pierson:
Sentence should not be retrospectively increased
Burma Oil Company v Lord Advocate and the War Damages Act:
Judgement frustrated due to War Damages Act
The Rule of Law and Wider Conceptions
R (on the application of Anufrijeva) v Secretary of State for the Home Department: Right to know decision
Per Lord Steyn: "Rule of law requires that a constitutional state must accord to individuals the right to know of a decision before their rights can be adversely affected".