The Rule of Law

How is the Rule of Law given effect?

Through Judicial Review and Human Rights Act 1998

Henry de Bracton 13th century

'The king must not be under man but under God and under the law, because the law makes the king.'

Formalist view of the Rule of Law

Formalist conceptions of the rule of law concerned with the manner in which the law comes into existence - was it made by a body with the power to make law and was it made in accordance with the correct procedures? Are laws clear accessible, general and non- retrospective.

FP (Iran) v Secretary of State for the Home Department

Person not given a right to be heard - hearing had taken place in FP's absence because her lawyers had not told the tribunal of a change of address. A situation where a party is given a right and then it is taken away before he has a chance to exercise it is not one which, in my judgment is fair, nor ... is it one which fulfils the basic requirements of the rule of law.' Sedley LJ 'Unless a minimum level of fairness is achieved, the principle of the rule of law will be infringed.'

Semayne's Case

"the house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose." "In all cases when the King is party, the sheriff may break the party's house, either to arrest him, or to do other execution of the K[ing]'s process, if otherwise he cannot enter. But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors" This established the "Knock and Announce rule"

Joseph Raz' Eight Qualities of Law

1. Laws should be prospective, open and clear. 2. Laws should not be changed too often 3. There should be open, clear, general, and stable rules and procedures for making laws 4. There should be an independent judiciary. 5. The principles of natural justice such as fair hearings and the absence of bias should be observed. 6. The courts should have powers of review to ensure that the other components of the rule of law are observed. 7. Courts should be easily accessible 8. The police and prosecuting authorities should not be permitted to use their discretion to pervert the law

Albert Venn Dicey - The Rule of Law - 3 Principles

1. No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of the law established in the ordinary legal manner before the ordinary courts of the land. 2. No man is above the law - Every man whatever his rank or condition, is subject to the ordinary law of the land and the jurisdiction of the ordinary tribunals. 3. The general principles of the constitution are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the courts. i.e common law as a source of the constitutional law.

Lord Bingham's 8 Suggested Principles

1. The law must be accessible and so far as possible intelligible, clear and predictable. 2. Questions of legal right and liability should ordinarily be resolved by application of the law and not by exercise of discretion. 3. The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation. 4. Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of those powers, and not unreasonably 5. The law must afford adequate protection of fundamental human rights. 6. Means must be provided for resolving, without prohibitive cost or inordinate delay bona fide civil disputes which the parties themselves are unable to resolve. 7. Adjudicative procedures provided by the state should be fair. 8. The rule of law requires compliance by the state with its obligations in international law as in national law.

Purpose of the Rule of Law

1. To ensure a responsible government 2. Expresses ideas about qualities a legal system should possess 3. Means of protection against arbitrary power

R (Corner House Research) v Director of the Serious Fraud Office

A govt official decided to stop an investigation into corruption around Saudi officials following threats from the Saudi government. The issue in case is not whether his decision was right or wrong, but whether it was a decision which the Director was lawfully entitled to make. HELD decision was lawful. FOREIGN GOVERNMENTS INVOLVED IN LAW

Interaction of All 3 Principles.

Balance between the courts' role in upholding the rule of law, and their need to respect their position within the separation of powers. Rule of law - requires that the legality of government actions be subject to review by independent and impartial tribunals. Separation of powers - requires that the judiciary do not interfere improperly in the exercise of powers allocated to executive bodies by Parliament. Sovereignty of Parliament - An Act of Parliament can change the law if a ruling goes against the Government, but there are constraints on Parliament passing laws which contravene the UK's obligations under the European Convention on Human Rights or EU Law

Case of Prohibitions del Roy

Coke Chief Justice 17th century said - King could not try legal disputes himself but had to act through his judges who had the necessary skill and experience. 'The Law was the golden metwand and measure to try the causes of the subjects and which protected his majesty in safety and peace.'

A v Secretary of State for the Home Department

Concerned anti terrorism powers introduced in the United Kingdom in the wake of the 9/11 terrorist attacks on New York and Pennsylvania Whether suspected terrorists who could not be deported and could not be brought to trial could lawfully be detained in Belmarsh Prison (some were in Broadmoor High Security Psychiatric Hospital)

Regina (Purdy) v Director of Public Prosecutions (Society for the Protection of Unborn Children intervening)

Debbie Purdy had Multiple Sclerosis wanted her husband to accompany her to a country where assisted suicide was legal. DP asked the DPP for information about the factors he would take into account in deciding whether to prosecute for a s 2(1) offence. He declined - she claimed breach of her right to respect for private life under Article 8 of the ECHR - whether the law or rule in question was sufficiently accessible to the individual affected and sufficiently precise to enable him to understand its scope and foresee the consequences of his actions so that he could regulate his conduct without breaking the law Accordingly, the Director was under a duty to clarify his position as to the factors which he regarded as relevant for and against prosecution in such a case and he would be required to promulgate an offence-specific policy identifying the facts and circumstances which he would take into account in deciding whether a prosecution under section 2(1) of the 1961 Act should be brought. Debby Purdy's Appeal allowed and Judicial Review granted.

Entick v Carrington

Defendants claimed authority under a warrant from the Secretary of State; broke into the plaintiff's house and took some papers. P sued in trespass. Every invasion of property is trespass. If a person admits to the invasion, he must justify it with a law that excuses him. If no law can be found, P's action is successful. "If it is law, it will be found in our books. If it is not to be found there, it is not law." Recognising law as superior.

Limitations of Dicey's Concept The Rule of Law

Joseph Raz - Thin v Thick - criticism of Dicey 1. Too vague - "The law may institute slavery without violating the rule of law." Trevor Allan, 1. Dicey, Too vague - 'Function of law to pursue the common good'

Case of Proclamations

Lord Coke held that the Crown has no prerogative to change the common law or statute, or to create new offences. He also held that the King only has the powers that the law allows him. This case is important as it is a move away from arbitrary government. It cements the separation of powers and the subjection of the executive to the rule of law.

Substantive view of the Rule of Law

Substantive conceptions are interested in the content of the rules .

Associate Provincial Picture Houses v Wednesbury Corporation

Sunday Entertainments Act 1932 gave local authority power to allow a cinema to be open on Sundays, "subject to such conditions as the authority think fit to impose." Lord Greene MR "the exercise of discretion will only be overturned if it has come to a conclusion so unreasonable that no reasonable authority could ever have come to it.

Constitutional Reform Act 2005 s1

This Act does not affect the existing constitutional principle of the rule of law nor the Lord Chancellor's role in relation to that principle. Does not further define the concept - deliberate choice to leave the task of defining the rule of law to the courts.

Wilkes v Wood - The Case of General Warrants

Wilkes published pamphlets criticising the King. The Secretary of State, issued a general warrant allowing officials to search anywhere to discover the author of these pamphlets. A general warrant gave the British officials blanket authority to conduct searches for anything. Wilkes sued the official who searched his home for trespass saying the warrant issued by the Secretary of State was not a valid justification for searching. - Case is a landmark for protection against arbitrary power.