Rule of Law

• Principle that ensures all members of society, including the government, are accountable to law that are:

  • publicly promulgated (accessible)
  • equally enforced (without discrimination)
  • independently adjudiated (separation of powers)
  • Recognised as a core component of the fundamental British value
• Dicey's 'pillars' of the Rule of Law comes from Constitutional Reform Act 2005 and defines Rule of Law
• Dicey's 'pillars' of the Rule of Law

  Supremacy of the law - Idea that law should govern a nation, as opposed to being governed by arbitrary decisions of individual government officials
• Dicey's 'pillars' of the Rule of law

  Equality before the law - Every individual is subject to the same laws, with no one having special legal privilleges
• Dicey's 'pillars' of the rule of law

  Predominance of legal spirit - Principles natural justice and rights are paramount, and the legal system should reflect this ethos
• Jospeh Raz's principles

  • Clarity
  • openess
  • Stability of laws
  • Independence of the judiciary
  • Accessible legal processes for the public
• Von Hayek's perspective

  Individuals can freely plan their actions without fear or arbitrary government interference
• Jurist and defines rule of law - Joseph Raz, Von Hayek and Dicey
• Rule of law in legal procedures - How it exists in procedures

  Criminal procedure

  • Ensures due process, the presumption of innocence and fair trial standards
• Rule of law in legal procedures

  Civil procedure

  • Guarantees the rights to a fair hearing, access to counsel, and an impartial judgement
• Rule of law in substantive law

  Criminal law

  • Defines offences and prescribes punishment, based on principles of legality, certainty and proportionality
• Rule of law in substantive law

  Civil law

  • Upholds contracts property rights, and personal freedoms, ensuring legal redress and remedy for breaches
• Rule of law in substantive law

  Human Rights Law

  • Protects individual's basic rights and freedoms, ensuring state accountability and transparency
• 4 Evaluation points for Rule of Law

  • Fairness and equality
  • Protection of rights
  • Clarity and accessibility of laws
  • Broad discretionary powers
• Fairness and equality

  P: Promotes fairness and equality creates an equitable legal system

  E: Equal treatment and protection under laws EG Equality Act 2010 non - discrimination

  E: Crucial for justice. Effectiveness limited as lack of equality when applying laws

  L: Impacts on fairness and equality through improvements and detailed examination of laws

  (Donoghue v Stevenson) Both parties owed each other level of care and responsibility
• Protection of Rights

  P: Protecting rights of individuals

  E: Human Rights Act 1998 and Consumer Rights Act 2015 role in safeguarding freedoms

  E: Rule of law upholding rights and applications must be careful

  L: Protecting rights affirms place in legal principles
• Clarity and accessibility of laws

  P: Dependent on clarity and public knowledge of laws

  E: Consumer Rights Act 2015 accessible law

  E: Accessibility to justice. Requires efforts to address legal complexities

  L: Clear laws in rule of law for an understandable legal system
• Discretionary - Power to excercise a discretion which the courts cannot interefere
• Arbitrary - Decisions or action that are based on established facts, but instead on opinions
• Broad discretionary powers

  P: Threaten rule of law by enabling arbitrary enforcement

  E: Use of stop and search powers

  E: Conflict with rule of law's principle, need for balance

  L: Conflict between discretion and law and because of this it is hard to maintain the rule of law