Flashcards in (2) The Core Rule of Law Deck (47)
What is the Rule of Law?
There is no universally accepted definition of the Rule of Law - it is, however, a constitutional concept designed to regulate the conduct of public officials and underpin the idea of limited government.
What two things epitomise the uncertainty surrounding a definition of the Rule of Law?
1. Lord Bingham's comment - ‘I was not sure that all those who used the expression knew what they meant, or meant the same thing’
2. The lack of consensus among academic commentators over what should be considered the 'true' Rule of Law
What are the three key interpretations of the Rule of Law?
1. The Core Rule of Law - Dicey
2. The Extended Rule of Law - Fuller
3. The Substantive Rule of Law - Dworkin
What was Dicey's Core Rule of Law?
According to Dicey, The Rule of Law simply requires the government to point to legal authority for its actions and prevents it from receiving special privileges in court.
Where does the concept of the Core Rule of Law originate from?
Ideas of the significance of the Rule of Law date back to ancient Athens – Aristotle observed – the absence of law would let ‘passion perver[t] the minds of rulers’.
Dicey recognised the significance of the Rule of Law in relation to which other constitutional doctrine?
Parliamentary Sovereignty - Dicey recognised that the Rule of Law provided something of a break on the unfettered legislative power of Parliament.
What is a potentially limiting factor upon the reliability of Dicey's position?
The fact that Dicey’s work and opinions must be viewed with the knowledge that he wrote with the agenda of preserving the UK’s Victorian governance order against change.
Which school of thought was particularly influential upon Dicey's thinking?
Legal positivism - this suggested that laws themselves are neither good nor evil but simply rules that govern society.
What were the two key concepts that underpinned Dicey's Core Rule of Law?
1. Government by Law
2. Equality before the Law
What is the government by law requirement?
Government actions require authority - there must be clearly identifiable principles empowering public officials to act in a manner affecting the interest of private persons -and the relevant principles must be pointed to by public officials when making decisions.
What requirements are there of the laws relied upon by public officials under the government by law pre-requisite?
The principles empowering public officials to act in a manner affecting the interest of private persons must be clear and specific – ‘no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law’.
What were Dicey's two key aims when enforcing the government by law requirement?
1. To restrict the operation of arbitrary power.
2. Allowing people to plan their lives – Friedrich Hayek said it allowed individuals to ‘foresee … how the authority will use its coercive powers in given circumstances, and to plan ones live accordingly’.
What key case did Dicey turn too, to demonstrate how deeply rooted the government by law requirement was in the UK Constitution?
Dicey turned to case law seeking to demonstrate the courts readiness to accept such a principle – the most famous case in this regard is Entick v Carrington.
What was the significance of Entick v Carrington?
In this case it was held that the relevant exercising of state power required clear justification under common law or statute – something that was lacking in this case.
In this way Entick v Carrington represents a ringing endorsement of the rule of law and of the system of democratic government.
What is the equality before the law requirement?
This requirement holds that there should be no discrepancy between the treatment of public and private bodies before the law - or, alternatively, no inherent privilege for public officials. Indeed, there should be no special privileges for government – administration of law affecting relations between public officials and private persons should be done by ordinary courts rather than specialist ones.
What was the underlying aim of the equality before the law requirement and how did Dicey seek to fulfil it?
Dicey wanted to ensure that public officials were accountable to the courts for their exercise of public functions. His requirement of equality before the law was designed to do this by preventing courts affording undue leniency to the public body – ‘here every man, whatever be his rank or condition, is subject to the ordinary law of the realm’.
Which key case did Dicey turn too, to demonstrate the deeply rooted nature of the requirement in the UK Constitution?
Dicey sought to embed, in the UK Constitution, the notion that relations between private parties and public officials were to be addressed in the ordinary way – unless a law had granted some special power to the official.
This position was illustrated in the case of Pedro v Diss – here it was established that ‘[o]nce they go beyond their specified powers, the police have no special privileges’.
Which other understanding or concept compliments the requirement of equality before the law?
The democratic understanding of the equal worth of individuals.
Which other decision is of significance in regards to the equality before the law requirement?
M v Home Office – here it was ultimately held by the House of Lords (following great contestation from both sides) that it is possible to issue binding injunctions against ministers (something the Home Secretary has sought to dispute – blatantly in conflict with Dicey’s requirement of equality before the law) and that ministers could also be found to have acted in contempt of court.
What exceptions are there to Dicey's requirement of equality before the law?
The general rule or principle of equality before the law does, however, have some exceptions, in some instances some groups may be granted special privileges before the law;
1. Diplomatic Immunity
2. Immunity relating to Parliamentary Proceedings
3. Judicial Immunity relating to Court Proceedings
What is the idea of diplomatic immunity?
Diplomats are excluded from the operation of domestic law.
Their immunity is designed to prevent them from being ‘framed’ for criminal offences or hounded by law enforcement when visiting other states.
What potential issues are there with the idea of diplomatic immunity?
Diplomatic immunity can, and has, been abused by diplomats and their origin states who choose to disregard national law for no good reason.
Holistically, is diplomatic immunity reconciled with equality before the law?
Overall, diplomatic immunity is accepted as although it can in some circumstances represent a significant inroad to the principle of equality before the law – ‘its practical utility’ counterbalance this.
What is the idea of immunity relating to Parliamentary Proceedings?
MPs enjoy various privileges designed to protect parliamentary proceedings from interference. The key example of immunity in this setting is immunity in regards to free participation in parliamentary proceedings – this right is also enshrined in the bill of rights 1689 – ‘[T]he Freedom of Speech and Debates or Proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament’.
What examples are there of MPs exercising their right to immunity relating to Parliamentary proceedings?
Comments made recently by an MP naming Philip Green as the businessman under investigation for abuse of his previous employees represent one instance of parliamentary special privilege being exercised.
Other examples can be seen in the comments made by Lord Campbell-Savours in a House of Lords Debate in 2006 and the case of R v Chaytor.
What is the broader significance of the case of R v Chaytor in regards to immunity relating to Parliamentary proceedings?
In this case the defendants were found guilty and imprisoned following the reasoning that the special privilege afforded to parliamentarians should be interpreted as narrowly as possible so as to protect the parliamentary functions but to reduce the infringement on the overarching value of equality before the law.
What acts as a slight limitation on the absolute immunity relating to Parliamentary proceedings?
Abuse of this privileges, if/when it occurs, will still be policed, only by Parliament themselves rather than the courts - thus excluding the jurisdiction of the ordinary courts.
What is the idea of judicial immunity relating to court proceedings?
Historically it has been accepted that judges should be afforded absolute immunity from liability for actions or words in the course of performing their role in the judicial office.
Which case established, or at least supports, judicial immunity relating to court proceedings?
The case of Anderson v Gorrie saw it established that – ‘no action lies for acts done or words spoken by a judge in the exercise of his judicial office, although his motive is malicious and the acts or words are not done or spoken in the honest exercise of his office’.