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Rule Of Law Notes

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RULE OF LAW RoL is formally recognised in statute: s1 of Constitututional Reform Act 2005 somewhat cryptically provides that "This Act does not adversely affect... the existing constitutional principle of the rule of law" Elusive constitutional principle that power should be exercised in a manner consistent with the law and that the law should show certain characteristicsElliott: RoL as an envelope containing bundle of more specific principles and fundamental values

Examples of claims where RoL has been invoked:??

RoL requires every person be protected from invasion by the authorities of his rights and liberties - Brown v Scott (2001) RoL requires an independent judiciary + that special jurisdictions be under the supervision of ordinary courts to ensure fairness and consistency - Cart v Upper Tribunal (2012) Claims associating RoL with liberal belief (e.g. dignity and freedom)
- Taylor v Chief Constable (2004): CA stressed fundamental principle that a policeman must give clear reasons for arresting someone, Sedley LJ based this on the value of human dignity RoL as necessary foundation of democracy

Different versions of the RoL

1. Dicey's version of the RoL AV Dicey (1885) formulated a three-fold version of the RoL, which still has great influence today: i.

Predominance of law

No interference with individual rights without the backing of law - Ex parte Fewings (1995): Laws J referring to one of the "sinews" of the RoL said that for public bodies "any action to be taken must be justified by positive law" No wide discretionary power of gov - exercise of discretion must be limited controlled - to some extent done by judicial review Punishments should be meted out in ordinary courts: no longer the case today but belief preserved by JR ii.

Equality before the law

Essential in interests of public confidence, aspect of Dicey's version of RoL has stood the test of timeOfficials enjoy no special protection from legal liability - M v Home Office (1993): Minister cannot refuse to comply with court order on the basis that he is a servant of the Crown ? unlike Crown, a minister exercising his power on behalf of the Crown can be held in contempt of court

Qualifications: judges immune from personal liability in respect of actions in court, Parliament immune in relation to internal proceedings, MPs have certain immunities but not from ordinary criminal law. iii.

Constitution is the "result" of the ordinary law

UK constitution, not being written, seen to be embedded in the very fabric of the law, dealing with concrete situations + backed by practical court's remedies. iv.

Relevance of Dicey's analysis today

Early case of Entick v Carrington (1765) illustrates all three of Dicey's aspects to the RoL: court held that Home Secretary had no power to enter and seize a citizen's property without a specific warrant of the court
? General warrants giving officials wide discretion unlawful - any official must show legal authority for their action, if not can be sued like any other parties
[?] modern case of ex parte Rossminster (1980): involved similar search in relation to tax offences
? Parliament had given a general power to tax inspectors to enter and search private premises - court was powerless to protect the citizen in light of this wide-ranging power conferred by statute HRA might provide compromise solution: wide powers have to be "proportionate" in the public interest

2. "Core" RoL: bare principle of legality Basic RoL = government by law in the form of general rules as opposed to the discretion of the ruler?

Hayek (1960): RoL means that gov in all actions is bound by rules fixed and announced beforehand Requires that rules are validly made

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