The Rule of Law amounts to a means of power!
Professor Jowell - 'A resilient and effective force behind the evolution of the UK's constitution
Defining what is mean by ROL is not easy! ROL means different things to different people
Full of ambiguity and vagueness
The Three Elements, 1)Everyone is equal before the law, 2)No one can be punished unless they are in clear breach of the law, 3) There is no set of laws which are above the courts
Criticisms of Dicey, Prof Jennings - Discretionary Powers vital! and NOT contradictory to ROL, "No man is above the law" - what about children? - immunity? Doli Incapax, Entick V Carrington (1975) No man is above the law - support from the law reports - Officials held to be subject to Laws of the land.
Denial of HR, only concerned with the authorisation by a person and with proper manner. Not concerned with Content of the Law!, Lord Steyn - Guantanamo Bay, Abu Graib Fallijah, horrors of Iraq war. Hierarchy of human life?
Binyam Mohammed, Terrorism Act - Enshrining a reversal of the BOP?
David Blunkett - Evidence derived from torture - US and UK above the Law???
ROL must reflect justice, democracy and equality! Content important! Goes beyond formal attributes of the ROL.
Lord Steyn - Nazi Germany, South Africa apartheid show that 'strict adherence to legality is no guarantee against tyranny.'
1)Prospective open and clear, Willes J: " retrospective law are no doubt contrary to the general principle that legislation when introduced for the first time ought not to change past transactions", Phillips V Eyre (1876), Retrospective legislation - contrary to S7 ECHR, BUT... express words in statue - War Damage Act (1965) Sir Thomas Legg - War Crimes Act have a retrospective effect., R V R (1992) Common law is retrospective in the fact that it can develop after the event., BUT E Commission on HR did not violate S7 ECHR = clear that the law was developing in such a way., HOWEVER HL decision made it authority - legal certainty established only AFTER. Retrospective?, Open & clear - Lord Donaldson - 2 Prerequisites, 1) Publics interest to live in accordance with the rules., 2)People must know what the rules are, If judges consistently seek to be excessively adventurous ROL perhaps will be fatally wounded - Lord Bingham
2) Relatively stable, Police Powers - terrorism act... keeps changing!
3)Guided by open,stable and general rules
4) Independent judiciary
5)Natural Justice, Right to a fair hearing - no bias decisions - 'duty to act fairly'
6)Review powers over the implementation of other principles
7)Courts should be easily accessible, Litigation= expensive, restrictive or no access to legal aid, cases with regards to asylum, appeals and inquests., R V Lord chancellor exp witham (1998), Asylum and Immigration Act 2004 - although not as restrictive anymore, Lord Steyn - Oppressive legislation which is contrary to the ROL - courts are open to ALL!
8)Crime prevention agencies cannot pervert the law!, Miscarriages of Justice, DNA evidence, Steven Lawrence, Jean Charles De Menezes
ROL acts as a safeguard for individual rights!
Important in UK as no codified constitution!
Lord Woolf - Legislation which violates ROL could be disobeyed by the courts!
Lord Steyn - The decision in A V Sof S hd 2005 'goes to the very heart of our democracy' and 'anchors our constitutional system of the ROL.
S of S V JJ 2006 - deprivation of liberty!! Contrary to S5 ECHR!