Public Law I - Sources of Power PDF

PUBLIC LAW I – SOURCES OF POWER The Rule of Law Dr Tarik Olcay University of Dundee Week 3  LEARNING OBJECTIVES Define what constitutional principles are Explain the different conceptions of the rule of law Evaluate the role of the principle of the ru...

PUBLIC LAW I – SOURCES OF POWER The Rule of Law Dr Tarik Olcay University of Dundee Week 3  LEARNING OBJECTIVES Define what constitutional principles are Explain the different conceptions of the rule of law Evaluate the role of the principle of the rule of law in the UK Constitution  CONSTITUTIONAL PRINCIPLES Fundamentally important values concerning the constitution explain constitutional arrangements influence the constitutional arrangements politically or legally provide benchmarks for evaluating constitutional actors The rule of law (legality) The separation of powers (responsible government) Parliamentary sovereignty (democracy)  THE RULE OF LAW Definition government operates under law rule of law v rule of men: decreases the level arbitrariness in government rule of law v rule by law: latter is instrumental use of law as a tool of political power Importance provides clarity, certainty, and accountability Relevance constitutional principle  THE RULE OF LAW Highly contested concept Disagreement revolves around definition and scope bare principle of ‘legality’ the formal conception of the rule of law (e.g. Fuller, Raz) the substantive conception of the rule of law (e.g. Bingham)  BARE PRINCIPLE OF LEGALITY If something is enacted following the law-making procedure prescribed in that legal system then it must be regarded as a law. e.g. something will count as an Act of Parliament if it is approved by both Houses of Parliament and by the King. Recognised in UK law Entick v Carrington – in issuing warrant to authorise agents to break into claimant’s house Minister had acted illegally as no law authorised him to do so Jackson – the legal question was whether a law had been enacted in conformity with the relevant procedure Unison – the Minister had exceeded his legal power in imposing fees that made it too difficult for people to access employment tribunals (he had no such legal power)  THE FORMAL CONCEPTION Mainly concerned with ‘formal’ quality of law, e.g. laws should be public and clear not have retroactive effect not change too often. Not concerned much with the ‘content’ of law. Formal conception judicially recognised in UK Legal certainty – Anufrijeva Non-retroactivity – Pierson Access to independent courts and tribunals – Unison Access to judicial review of government action – Privacy International  THE SUBSTANTIVE CONCEPTION As well as formal qualities, also requires good ‘content’ of law, such as respect for the freedom of expression respect for the principles of equality Some judicial recognition in the UK but complicated Are they recognised as a constitutional principle or as a matter of law? e.g. basis: the rule of law or the Human Rights Act?  THE RULE OF L AW IN THE UK CONSTITUTION Courts will strike down government action that is inconsistent with the rule of law but judges will have different views as to the extent of the rule of law Courts try, whenever possible, to give legislation a meaning that is compatible with the rule of law Courts generally hold legislation (except Acts of Parliament) to be invalid if it cannot be interpreted compatibly with the rule of law But, Parliament is sovereign – so, legally, it can override all the requirements of the rule of law and even say it is not a constitutional principle But Parliament recognised the principle in statute in Constitutional Reform Act 2005, s 1