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What prompted the development of the extended rule of law?

Following criticism of Dicey's core rule of law for failing to sufficiently safeguard against the abuse of power and prevent morally abhorrent laws being considered valid, alongside the consistent undermining of his position as broad discretionary powers were consistently granted to the executive to manage the welfare state, academics were led to reconsider the underlying principle of the rule of law.


Which events highlighted the gap left by the core rule of law in regards to the morality of laws?

The abuse of powers of the state under the Facist and Communist regimes highlighted the failings of the core rule of law to ensure only morally good laws were valid (whether it is the role of the rule of law to ensure this is another question).


Who developed the idea of the extended rule of law?

Fuller re-evaluated the rule of law and presented the idea of an ‘extended’ rule of law.


What was Fuller's extended rule of law?

According to Fuller's vision of the rule of law a legal system must respect a range of formal qualities in order to comply with the rule of law - these qualities were designed to safeguard against the existence of morally questionable but valid laws. Failure to exhibit these characteristics could lead to the validity of the law being questioned.


What were the three key formal qualities laws must satisfy if, according to Fuller, they are to comply with the extended rule of law?

The three key extended considerations proposed were;
1. Non-retroactivity
2. Clarity and Stability
3. The Legal Process must be Fair


How did Fuller suggest the three formal qualities required of laws (under his interpretation of the rule of law) ensured moral goodness?

He said that compliance with these qualities would invoke an ‘inner morality’ within a legal system – thus addressing the issues levied at the ‘core’ rule of law theory.


What is the concept of non-retroactivity?

The courts have developed long-standing interpretive presumptions against legislation having retroactive effect as this would prevent individuals planning their conduct in relation to the law.


Is the adherence to non-retroactivity an absolute one?

No, in the case of Phillips v Eyre saw the defendant’s attempt to justify the introduction of an indemnity act relating to his actions while in office upheld – indicating that in some circumstances retrospective legislation may be appropriate, particularly when other public interests are at stake.


What further two examples are there of Parliament infringing upon the principle of non-retroactivity?

1. In a case involving damage to a Burmah Oil facilities by UK Armed Forces Parliament introduced the 1965 War Damages Act preventing future and past damages claims.
2. Attempts by Parliament to enact the Jobseekers Act 2013 to retrospectively validate the withholding of benefits – whilst two affected individuals brought a successful legal action against the scheme originally introduced.


How did Willes J clarify the acceptance of non-retroactivity as a principle of the extended rule of law?

In the case of Phillips v Eyre he remarked - ‘[t]he general principle of legislation by which the conduct of mankind is to be regulated ought to deal with the future acts and ought not to change the character of past transactions carried upon the faith of the then existing law’


What did Lang J say about the importance of the principle of non-retroactivity?

He said - ‘Parliament’s undoubted power to legislate to overrule the effect of court judgements generally ought not to take the form of restrospective legislation designed to favour the Executive in ongoing litigation in the courts … unless there are compelling reasons to do so. Otherwise it is likely to offend a citizen’s sense of fair play.’


In which area is adherence to non-retroactivity particularly strict?

The courts exercise particular caution in relation to retroactive criminal law.


What did Lord Reid say about non-retroactivity of criminal law?

Lord Reid declared in Waddington v Miah that ‘it is hardly credible that any government department would promote, or that Parliament would pass, retroactive criminal legislation’.


What provides further support for the common law principle of non-retroactivity of criminal law?

Article 7(1) of the ECHR.


What issues arise when considering the principle of non-retroactivity in light of the UK Common Law system?

As part of the common law system judges adapt, develop and change interpretations of law – in doing so they inevitably create retroactive implications for various parties.


How can the requirement of non-retroactivity be somewhat reconciled with the UK Common Law System?

In some instances judges may seek to restrict the retroactive implications of their decisions, indeed the Supreme court recognised this acknowledging ‘that ‘[t]here are now a considerable number of dicta to the effect that court has a general inherent power to limit the retrospective effect of its decisions’.


Which two cases drew controversy in relation to the non-retroactivity requirement?

The cases of R v R and R v C.


What was the eventual finding in the case of R v R?

The Supreme Court held that there had been no retroactive change to the criminal law but rather ‘the removal of a common law fiction which has become anachronistic and offensive’, this position was reinforced by the ECHR who agreed and described the common law change as ‘a reasonably foreseeable development of law’.


What was the eventual finding in the case of R v C?

It was ultimately found that there had been no abuse of process and that the defendant was not victim to retrospective implications of law.


Overall, how does the role of the judge interact with the concept of non-retroactivity and what impact does it have upon it?

Judges do alter the law by their decisions and that there decisions have retroactive effect – non-retroactivity is not, therefore, an absolute value to be protected within a legal system.
Some infringements upon the prohibition of retroactivity may be permitted depending on the nature of the case and the degree of upheaval or uncertainty produced – the reasonable foreseeability test.


What is the concept of clarity and stability of law?

Fuller argued that an individual should be able to ascertain their legal rights and obligations at any given time in order for the law to guide their conduct – lack of clarity and consistency of law prevents this and has a ‘chilling effect’ on the relevant behaviour or conduct.


What threatens the clarity and stability of law in the UK?

The sheer complexity of the UK legal system often creates issues in this regard (despite the availability of legal advice) – as illustrated by the case of R v Chambers.


What did Toulson LJ say about the requirements of clarity and stability?

Toulson LJ remarked – ‘it is profoundly unsatisfactory if the law itself is not practically accessible’.


What did Toulson LJ suggest was a cause of confusion and instability in the UK legal system?

The law’s development over time has led to a mishmash of primary and secondary legislation as well as case law by the way of legal authority for issues – thus the courts have a difficult job trying to disentangle which laws to apply for given cases.


How did Baroness Hale stress the importance of this requirement?

Baroness Hale remarked – ‘a major objective of the criminal law is to warn people that if they behave in a way which it prohibits they are liable to prosecution and punishment. People need and are entitled to be warned in advance so that, if they are of a law-abiding persuasion, they can behave accordingly’.


How has the principle of clarity and stability been further reinforced?

It has been further reinforced by the ECHR following the UK’s joining – the case of Sunday Times v UK saw the ECHR found that the entire area of law in regards to contempt of court was too vague to satisfy the ‘prescribed by law’ requirement for an interference with Article 10. This places another measure in place to protect the clarity of UK Laws.


To what extent does the law need to be clear and stable under this requirement?

There is something of a balance here – there is no requirement that the law be absolutely certain or ascertainable without legal advice – as this would impose ‘excessive rigidity’ upon a legal system.


Which other requirement do the clarity and stability prerequisites compliment?

The idea that ‘people should know, or at least be able to find out, what the law is’ is a key part of the UK’s commitment to the rule of law and develops further the government by law requirement.


What is part of the reasoning behind the clarity and stability requirement?

People should be able to assess the law that affects their interests and actions.
There are intrinsic personal benefits to each legal person of being able to do this, however, there are also extrinsic wider social benefits as the level of certainty, consistency and predictability encouraged by such a principle in turn encourage business and economic growth.


What is meant by the principle that the legal process must be fair?

Under this principle a legal system is required to show certain qualities if it is to be compliant with the rule of law;
1. A commitment to allowing individuals to access the courts
2. The judiciary may be impartial and that their decisions open to scrutiny
3. All officials with a role in the legal system exercise their discretion fairly