The Rule of Law: Lecture One

Dr D McCann
(PCL128) deirdre.mccann@durham.ac.uk

Constitutional Fundamentals
1. The Rule of Law

the notion of the rule of law the rule of law in the UK (including the prerogative powers)

2. Parliamentary Sovereignty 3. Separation of Powers

Defining The Rule of Law

a chameleon-like Phillipson)

notion

(Fenwick

&

[G]overnment in all its actions is bound by rules fixed and announced beforehand - rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan ones individual affairs on the basis of this knowledge (FA Hayek The Road to Serfdom 1944, p 54) Lord Bingham The Rule of Law (2007)

The Rule of Law: some principles (Rawls, Raz)

Government under the law Laws must not require the impossible Like cases must be treated alike Laws must not be retrospective and be sufficiently clear Cases must be tried fairly and according to due process Courts must be reasonably accessible to citizens Courts must have power to review other public authorities

Government under the law

AV Dicey Introduction to the Study of the Law of the Constitution (1885) Formal equality e.g. Pedro v Diss (1981) Concerns:

Expansive definitions (Raz) (e.g. International Congress of Jurists 1959) Deference to the status quo (Griffith 1979)

Expansive definitions of the rule of law: an illustration

[T]o create and maintain the conditions which will uphold the dignity of man as an individual. This dignity requires.the recognition of his civil and political rights [and] also the establishment of the social, economic, educational and cultural conditions which are essential to the full development of his personality. (International Congress of Jurists 1959)

The Rule of Law in the UK Constitution

Constitutional Reform Act 2005, ss 1, 17(1) (Lord Bingham) Government action based on specific legal authority:

Entick v Carrington (1765)

Wide discretionary powers e.g. R v Inland Revenue Commissioners, ex parte Rossminster Ltd (1980) (see in particular Denning CA & Scarman HL)

The Rule of Law: some principles (Rawls, Raz)

*Government under the law Laws must not require the impossible Like cases must be treated alike *Laws must not be retrospective and be sufficiently clear Cases must be tried fairly and according to due process Courts must be reasonably accessible to citizens Courts must have power to review other public authorities

Entick v Carrington (1765)

By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can ever set his foot upon my ground without my licence, but he is liable to an action.If he admits the fact, he is bound to shew by way of justification, that some positive law has empowered or excused him. (Chief Justice Camden)

The Rule of Law and the ECHR

Human Rights Act 1998, s 6(1), s 3(1) e.g. Article 2, Article 8, Article 10 (prescribed by or in accordance with the law) Malone v the UK (1985) Interception of Communications Act 1985 (now Regulation of Investigatory Powers Act 2000)