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The Rule of Law – challenges to the rule of law - Coggle Diagram
The Rule of Law – challenges to the rule of law
Lord Bingham's 8 elements:
accessible, clear and predictable
.
resolved through legal processes
and not through the exercise of administrative discretion by government officials.
Should
apply equally to all.
Afford adequate
protection for human rights.
Access to justice in the courts
without inordinate delay or expense.
Public officials, including ministers,
should exercise the powers they have been granted
in good faith and
within the limits of those powers.
Legal and adjudicative
processes should be fair.
The state should comply with its
obligations under international law
Unclear & Inaccessible Legislation
Too much
badly drafted legislation?
Particularly in the
criminal field
Legislation of this kind poses real
problems of assimilation and comprehension
, even to senior and seasoned professionals
Unreliable sources of legislation
- Publicly available legislation on the internet is not reliably kept up-to-date and should not be used
Uncertain Judicial Decisions
Judges should come to properly
reasoned and clear decisions.
Challenges posed by legislation, Lord Bingham turns his attention to judges -
"those who live in glass houses are ill advised to throw stones".
Sometimes, the
law on a given point remains unclear
- due to the possibility of giving
dissenting judgments
[the court] "is simply failing to perform its duty in accordance with the principle of accessibility and certainty."
Administrative Discretion
Countless decisions are made every day by administrators, for example, on the
allocation of housing to the homeless
, the
allocation of school places
, the
granting of planning permission
, the
granting of leave to enter the country
, and so on.
Decisions should be made on
stated criteria
, that they
should be amenable to legal challenge
Matters whether
these decisions can be challenged
by the people affected. In many cases (due to the
expense
and risk of bringing claims in judicial review)
they simply cannot be.
Equality Before the Law
The principle that the law should apply equally to everyone is qualified by Lord Bingham in the following terms: "save to the extent that
objective differences justify differentiation".
For example,
young children are less mature than older children and adults.
This is an objective difference which justifies different treatment under the law
The
differentiation must be relevant to the distinction
-
A & Others
- terrorism - non-British & British nationals treated differently
Inequality of Application
Broad and intrusive power to stop, search and hold individuals at ports
, airports and international rail stations
Police, customs or immigration officer
need not have any grounds for suspecting
Detained and questioned for up to nine hours.
Searched and have their belongings retained for up to seven days
The person has no right to a free legal representation while detained at the port or border (unlike someone arrested and taken to a police station under normal police powers)
It is a criminal offence if the person fails to answer questions or obstructs the exercise of the functions under the Act.
Respect for Human Rights
- ,
HRA
puts puts fundamental rights on a
statutory footing
However, there are long-standing & developing equivalent rights under the common law
i.e. the
right to life
; the
prohibition of torture
;
no punishment without law
; the
right to freedom of expression and to public protest.
The
repeal of the Human Rights Act, possibly to be replaced by a 'British Bill of Rights'
, has been urged by some politicians for some years, and remains a possibility.
Access to Justice
- cuts to legal aid, self representation leading to cases taking longer & risk of unjust outcomes
Fees & Costs
-
R (Unison) v Lord Chancellor 2017
- found that the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013
was unlawful under both domestic and EU law
, as it effectively
prevented access to justice
Unfair Legal and Adjudicative Processes
Right to a fair trial - UK has signed up to
"fast-track" extradition treaties
which
prevent UK courts
from considering whether
there is evidence to justify the extradition request.
The line between criminal and civil law has been
blurred by the widespread use of Anti-Social Behaviour Orders and other civil orders
Secret courts and secret evidence
has been developed, under which those accused of terrorism can be left "languishing on control orders for years on end
without being told why" and without being able to challenge the suspicions
against them. Hearings are conducted under the
'closed material procedure.
' This allows the government to present
sensitive evidence
to the judge which
other parties to proceedings cannot examine
Government Criticism of Judges
- trend in recent years to criticise judiciary overtly - Boris
Automated Decision Making
-
how to appeal a decision made by an algorithm
? The
reasoning
behind the decision made
unknown
. Undermines the principle of
judicial transparency, accessibility and certainty
Ethical Standards in the Legal Profession
- The
honesty and integrity of lawyers
bolsters the
integrity of the judiciary
and
public confidence
in the
administration of justice
– thereby supporting the rule of law.