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The Rule of Law by Mind Map: The Rule of Law
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The Rule of Law

The Rule of Law amounts to a means of power!

What does it mean?

One of the fundamental doctrines of the UK constitution

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

Dicey and the ROL

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.

Professor Craig - 2 Conceptions

Formal Conception

Berlusconi

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???

Substantive Conception

ROL must reflect justice, democracy and equality! Content important! Goes beyond formal attributes of the ROL.

Raz

ROL NOT to be confused with democracy, justice etc. A Non-democratic legal system based on the denial of HR etc May in principle, conform to the requirements of the ROL better than democratic legal systems.

Lord Steyn - Nazi Germany, South Africa apartheid show that 'strict adherence to legality is no guarantee against tyranny.'

8 Principles of what the making of laws should be

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

Equality before the law

Diceys eg can be found in in a HOL decision - Whether or not government could be guilty of contempt of court. M V HO 1994 - Not even executive above the law!!

The Principle of Legality

Entering a persons house requires lawful authority - common/statutory!

ROL acts as a safeguard for individual rights!

The ROL and Criminal Law

Police abusing power/corruption can prevent prosection - R V Horseferry Road Mags Court exp Bennett 94

Contemporary significance of the ROL

ROL difficult to define, but its principles act as a restraint on the power exercised by government.

Important in UK as no codified constitution!

Lord Woolf - Legislation which violates ROL could be disobeyed by the courts!

Contemporary significance of ROL has increased since HR ACT 1998. Government action subject to more judicial scrutiny.

Terrorism Prevention and the ROL since sept 11

Anti terrorism, crime and security Act 2001 - S23 detention without trial incompatible with Art 5 ECHR. Discrimination - applied only to Non UK nationals. Shows developed relationship between the courts and executive!

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.

Prevention of Terrorism ACT 2005 Designatory and Non - Designatory Controls.

S of S V JJ 2006 - deprivation of liberty!! Contrary to S5 ECHR!

Constitutional Reform Act 2005.

Lord Falconer Any minister who acts ultra vires - exceeding powers may have his actions monitored by the courts!