Presentation on theme: "The Rule of Law Introduction: The principle of the ROL can be traced back to the writings of philosophers in ancient Rome and Greece. For example, the."— Presentation transcript:
The Rule of Law Introduction: The principle of the ROL can be traced back to the writings of philosophers in ancient Rome and Greece. For example, the maxim, 'the ROL is preferable to that of an individual', has been attributed to the Greek philosopher Aristotle. Note: The notion of the ROL holds that the law is above the whims of any individual. For instance 'be you ever so high, the law is above the you'.
The Rule of Law Meaning of the ROL. The ROL is both a part of legal and political theory. In a broader sense, it means that people should obey the law and be ruled by it. In legal theory, it is read in a narrower sense i.e., that the government should be ruled by law and be subject to it for example government by law and not by men. Note: The ROL is the principle that those exercising a governmental function should be subject to legal controls.
The Rule of Law Does the doctrine of the ROL exist in the UK? Though the UK has no written constitution or a clear SOP's, it has had a lengthy history of constitutional development. Whilst the ROL is not unique to the British constitution, it is very important feature of it.
The Rule of Law How does the doctrine function in the UK? * Need for a strong justification for such law to withstand the ROL's moral structure though parliamentary supremacy prevails. * In interpreting the scope of statutory power, the courts make the implication that Parliament intended to conform to the ROL e.g. Ambiguous statutes. * The ROL is applied through JR of actions & decisions of all officials performing public functions.
The Rule of Law What are the conceptions of the ROL? Aristole argued that government by laws was superior to government by men i.e., the ROL is preferable to that of any individual. Joseph Raz- the ROL is a political ideal which a legal system may possess to a greater or lesser degree. (It represents a state of mind which ought to regulate official action) Prof AV Dicey three postulates on the ROL.
The Rule of Law Dicey's principles/descriptions of the ROL: * No one should be punished except for a distinct breach of law, established in the ordinary legal was in the normal courts/ No punishment may be inflicted other than for the breach of the law. * No one is above the law. Everyone is subject to the jurisdiction of the ordinary courts. 'Equality before the law'. * Constitutional law is 'judge made law'.
The Rule of Law Implications of Dicey's first postulate: *It requires that no one be punished except for a conduct which represents a clear breach of law. *Decisions made by those in authority must be made in accordance with law (supremacy of the law)- See the case of Entick v Carrington *Individuals should not be subject to wide discretionary powers- See the case of Wadington v Miah *Govt of the day must also respect the law
The Rule of Law Implications of Dicey's second postulate: *All govt & public officials are accountable to law i.e., the govt itself is subject to law. *Principle of equality before the law is part & parcel of the UK's unwritten constitution e.g some UK statutes aim to ensure equality for groups who might otherwise be discriminated against. *The operation of the doctrine of JR. (See the case of GCHQ)
The Rule of Law Implication (s) of Dicey's third postulate: *Courts have an important role to fulfill i.e., that when they construe the words of a statute, they should restrict the meaning of that statute as far as possible so that it does not unduly ingringe upon citizens rights (viewed shared by TRS Allan) *The effect of the Human Rights Act 1998. (See sec 4 of the Act)
The Rule of Law Case law in support of Dicey's third postulate: * Entick v Carrington- the Ct held that the arrest of Entick, seizure of his books & papers was unlawful, as the Secretary of State had no power to issue such a general warrant. * Ghani v Jones- it was held that the police had no power to retain a person's person unless they had grounds for arresting him... * Congreve v Home Office- COA held that such a threat, if carried out, would be unlawful.
The Rule of Law Case law in support of Dicey's third postulate: *R v Hull Prison Board of Visitors, ex parte St Germain- it was held that the “...Cts are in general the ultimate custodians of the rights and liberties of the subject whatever his status”. *Conway v Rimmer- the HOL's decided that in England, while the cts may give full weight to any claims made by a Minister of the Crown, they had the power to overrule such decisions when the public interest in the adminstration of justice outweighed the public interest in non-disclosure.
The Rule of Law Case law in support of Dicey's third postulate: *In re M- the HOL's ruled that while an injunction could not be issued against the Crown (b'se of the principle that the Crown can do no wrong) it could be issued against the executive & person representing the Crown. *Mandla v Dowell Lee- the HOL's held that the rules were discriminatory... *R v Secretary of State for the Home Department ex parte Fire Brigades' Union. *R (L & Anor) v Secretary of State for the Home Department, LC's Department, Intrested Party
The Rule of Law Case law against Dicey's third postulate: *Malone v Metropolitan Commissioner of Police- the Ct held that no right to privacy existed in English law, and the ct was not prepared to establish a precedent which would create such a right. * R v Sang- the HOL's held that where a defendant had been incited to an offence of forgery by an “agent provocatuer”, the Ct should not refuse to admit relevant admissible evid on the ground that it was obtained by unfair or improper mean.
The Rule of Law Case law against Dicey's third postulate: *R v Inland Revenue Commissioners, ex parte Rossminster Ltd- the HOL's held that the warrant accorded sufficiently with the provisions of the legislation under which it has been issed. The Cts had no right to impede the working of the legislation. * Liversidge v Anderson- the HOL's held that the Ct could not inquire into the grounds for detention, as long as there was no evid to suggest that he had acted other than in gd faith.
The Rule of Law Criticisms of the three postulates formulated by Dicey: *The first postulate- difficult to distinguish btn regular law & arbitrary power/irregular law. For example, laws on compulsory acquisition of land, powers given to a police constable under sec 24(7) of the Police & Criminal Evid Act 1984. *The second postulate- modern statutes have conferred wide powers on officials. *The third postulate- common law is subject to modification by Parliament. Also, ind of the judiciary is questionable.
The Rule of Law Defences in support of Dicey's three postulates: * The first postulate- he did not rule out discretionary powers. He was against the use od wide discretionary powers. He also emphasised on the role of the Cts while interpreting statutes. * The second postulate- the central thrust of Dicey's principle is that those with powers are accountable to law (equality before the Cts). *The third postulate-Dicey's message is not just about how the judges do their work, but this is how they should do their work. (See also the Settlement Act 1700)
The Rule of Law Conclusion: The ROL as a doctrine, need a clear understanding and appreciation so that one would be able to see its usefulness as a standard of comparison or a yardstick by which to measure the justification or legitimacy of a legal system.