S1 CRA 2005
Statutory recognition
Brown v Scott (2001)
RoL requires protection from invasion by authorities of rights and liberties of the individual
Dicey
- Predominance of law
- Equality before the law
- Constitution result of ordinary law
Entick v Carrington (1765)
Gave effect to all three of Dicey aspects
Predominance of the law
- No interference with individual rights without backing of the law
- No wide discretionary power of gov.
- Punishments should be prescribed in ordinary courts
Equality before the law
- M v Home Office (1993)
So servant of crown excuse
Qualified right
Rossminster (1980)
Parliamentary act gave wide discretionary powers and courts powerless to stop
Principle of legality
Gov. operates in form of general law, not at discretion of ruler
Hayek
Gov. bound in all actions by rules fixed and announced before
Witham (1998)
Minister made rules that were beyond the powers given to him by statute. Principle of legality upheld, ministers could only make laws within powers given to him
A v Secretary of state for the Home depot
L. BINGHAM:
Fundamental requirement that there be access to independent courts and fair trial
Anufrijeva
- Majority
Promulgation principle
Statute didn’t apply until individuals informed of the decisions
Versus
- Bingham
Principle of legality
Unless statutes states explicitly otherwise has CL rights
Substantive version
Craig separates
- JS Mill
- Allan (Liberal values)
Bridges gap between parl. sov. & political idea of sovereignty of people
Pierson (1998)
Requires parliament legislate in express terms if intends to give gov. power to violate the RoL
R(Daly)
Basic CL rights require clear and express words to curtail
Only to extent reasonably necessary to justify
Anisminic
Ouster clause in statute of “not being called in question by any court of law” invalid
Significance of terrorism act 2001
S.21(1) SoS may deport individual if reasonably believes presence:
- Risk to national security
- Suspects person to be a terrorist
Belmarsh
Role to ensure fundamental HR and freedoms not overlooked by leg./ministerial decisions Space to work subject to - Nature of matter being considered - Importance of HR - Extent of enchroachment
Al-Rawi (2007)
Judicial non intervention justifiable when:
- Exec. has access special info. + expertise
- Decision requires legitimacy of parliment
Corner House Research (2009)
Div. court
- RoL ensures courts should be independent decision maker free from pressure
HL
- Ceasing investigations director had worked in public interests
Dicey Craig & Barber dispute
Barber = substantive, craig = formal
Raz
- RoL is an essentially negative value - avoidance of evil
- Formal positive as treats humans as being capable of plotting their own futures
- Negative: Taking further would transform to political philosophy, RoL would cease to have independent legal value
Advantages of substantive view
Barber: Social factors directly relevant to functioning of our legal system
Kramer
- RoL separated into two concepts that are intrinsically linked i.e. substantive view requires formal view
- ‘Little sense’ (What is needed for legal system to function)
- ‘Big Sense’ (Moral/ liberal political idea; ideals strive towards in legal system)