Rule of Law

What does the view of rights as trumps propose

Rights permit their holders to act in certain ways, or give reasons to treat their holders in certain ways or permit their holders to act in certain ways, even if some social aim would be served by doing otherwise.

What are the advantages and disadvantages of sub rule 5: Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve

Alternative means of dispute resolution have a place But access to the courts essential, requiring consideration too of: Finance; avoiding undue delay

Why might the rule of law have particular importance in the British Constitution? Is this satisfactory?

Because of the uncodified constitution Rule of law - should be formal because that is the way there is most clarity Substantive - much muddier, less clarity and different people will almost certainly have differing conceptions of what is just/right

What are the advantages and disadvantages of sub rule 8: The rule of law requires compliance by the state with its obligations in international law

Connects the abstract concept with concrete legal frameworks, especially in respect of human rights

What is the rule of law?

Everyone must follow the law. Leaders must obey the law. Government must obey the law. No one is above the law.

What are rights?

Legal claims which generate correlative duties

Why do rights exist?

To protect minorities against majorities, thus cannot be left to an elected body.

What is the formal version of the rule of law?

addresses the manner in which the law was put in effect (by who, was it clear enough, prospective or retrospective) - not concerned with whether the law was a good or bad law

What is the substantive version of the rule of law?

seeks to go beyond formal - substantive rights are based on rule of law and determine good laws which comply with such rights and bad laws which do not

What are the advantages and disadvantages of sub rule 1: The Law Must Be Accessible and so Far as Possible Intelligible, Clear, and Predictable

sub rule 1 Core aspect of formalist concerns Accessibility may require legal advice But: Huge volume of legislation Difficulties interpreting common law rules

What are the advantages and disadvantages of sub rule 2: Questions of legal right and liability should be resolved by application of the law and not the exercise of discretion

sub rule 2 Relates to Dicey's concerns about executive discretion, but: Dicey not realistic in contemporary welfare state Even so: Discretion should be defined in narrow terms, and exercised reasonably

What are the advantages and disadvantages of sub rule 3: The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation

sub rule 3 Basic call for equal treatment Perhaps something we take for granted, but consider challenges to complacency about equality under law: e.g. immigration laws, anti-terrorism laws...

What are the advantages and disadvantages of sub rule 4: The law must afford adequate protection of fundamental human rights

sub rule 4 Substantive concern Fundamental rights a vague concept, but crucial as part of the rule of law

What are the advantages and disadvantages of sub rule 6: Ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers

sub rule 6 "[T]he core of the rule of law principle." (p. 78) Reflects established grounds of judicial review

What are the advantages and disadvantages of sub rule 7: Adjudicative procedures provided by the state should be fair

sub rule 7 Procedural matters: E.g. general need for open trials Need for judicial independence and impartiality

What is the traditional role of the courts?

to ensure that public authorities do not go outside the powers granted to them by Parliament: ultra vires.

How does the rule of law impact statutory interpretation?

unless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the Rule of Law