Table of Contents
The term rule of law is as a result of principles of legality and tends to mean that the law is above everyone and is supreme. Therefore there is no individual whether the ruled or the rulers, rich or poor are exempted to be above the law. Consequently, the rule of law is meant to ensure that government can’t exercise arbitrary actions that are against the written laws. The rule of law concept is one of critical importance to the modern society as it has become a building block where democracy has been founded. It is important to highlight that for the polity to function successfully there ought to be an extensive law enforcement and that all contracts ought also to be based on the law. Laws are aimed at ensuring that the people’s welfare in maintained and also ensure that the conflicting forces harmoniously coexist. The major reason why laws are made are to ensure that law and order is maintained and also to ensure that a conducive environment is maintained for the people’s progress. Therefore the concept of rule of law is one that plays a huge significance in this process.
Dicey is well renown as one the initial theorists to undertake an extensive examination of the rule of law and one that considered Keith Ewing, an academic scholar, and Lord Bingham, a retired judge. Dicey’s ideologies have had a prominence in the UK nonetheless there are some aspects which are ambiguous. He presented three principles which include that no one can be punished unless they have bridged a particular law, secondly is that every person regardless of their social status or rank is equal under the law and finally the third principle was that the unwritten constitution in United Kingdom could be subject of pervasion by the rule of law. It is important to note that the Diceyan views were in some aspects very ambiguous and there are various uncertainties that his ideologies present. The modern literature surrounding the rule of law is very extensive and has resulted to two distinct school of thought.
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There exists different legal theorist who provide conflicting views with regard to the rule of law concept. There are those who strongly believe that the rule of law is purely characterized by formal characteristics where by the definition of law ought to be declared publicly with an application that is prospective and at the same time possess the characteristics of certainty, equality and generality. However with this view they posits that there lack no requirements based on law content. That notwithstanding they hold that for there to be an establishment of a government that is under law there ought a procedural adherence of the law to certain requirements. It is important to note that the views tends not to imply anything with regard to morality but rather the people ought to be guided in a manner that they all are cognizant of their mandate and position within the state. A key proponent of the formal rule of law was Joseph Raz who noted that for desired certainty of laws to be achieved the laws ought to be adjudged by a judiciary which is independent and one that allows citizens to access it. On the other hand there are other legal theorists who are of the belief that the rule of law simply entails the individual rights protections. A key opponent to Raz’s proposition was Leon Fuller who embraces a more substantive view. He notes that laws ought to have internal morality for it to amount as a worthy legal system. Therefore based on his views that regimes that merely command authority are just mere government systems and not worthy legal systems. This is because the legal ought to serve the population’s interests and not the interest of the regime. Therefore the two conflicting approaches to the rule of law are termed to be basic alternatives and they are respectively outlined as formal and substantive approaches. It is certain to highlight that the dichotomy is of critical significance in the determination of specific legal precepts which can arise from the rule of law.
Having analysed the theoretical perspective and differences in the rule of law it would be important to have a keen look at how the UK constitution embraces the rule of law. It is certain to note that there are some key aspects which have gone a long way in shaping the rule of law in the UK constitution. One such cases is the Kelly v Faulkner where the courts outlined that even in emergency times, there ought to be obedience of the normal legal requirements which are in regard to the valid arrest execution. Therefore this means that those that exercise their legal power ought to bear some legally backed authority for their actions. This is in line with the due process which notes that an individual can punished or imprisoned if there exists extensive evidence of their wrong doing. Due process is aimed at ensuring people get a free trail and not just be proved that they are guilty.
The case of Entick v Carrington it was held that the police ought to show that they have the authority to enter one’s residence if they suspect them of wrong doing. In the case the police wrongfully went against the rule of law by entering Entick residence without them having a warrant which led to them losing their personal liberty. It is certain to note that an individual can’t lose their personal liberty unless there is extensive evidence that they breached the law. The retrospective laws are viewed as being not compatible with the rule of law. This clearly illustrated in the Burmah oil company v Lord advocate, where the claimant makes a claim against the damage of the crown during the war time by the British. With retrospective effect parliament effected the war damages act in 1965 aimed at ensuring that there will be denial of such claims in the future. It is also important to note that courts are meant to ensure that there is an enforcement of laws and not just creating them. This is evident in the Shaw v DPP, where the courts ensured the resurrection of the conspiracy to corrupt public morals as an offence. This law had for many years not been in use.
The more contentious and more straightforward matters arises from the fact whether the UK courts can go further than interpretively protecting the values presented by the rule of law. This can be possible as in some cases there are judicial dicta where the courts have refused to impose an application of legislations that were contrary to the values presented by the rule of law. However there are no cases where the courts have openly done this but there are those instances where the courts have adopted an interpretive approach when it comes to the safeguarding of the rule of law. A clear example to highlight this is the decision arrived at the Anisminic Ltd v Foreign Compensation Commission where the interpretive approach was utilized.
In the recent pasts the threats that terrorism poses has widely been invoked by many governments as a way to justify the restriction to human rights. That notwithstanding many nations have relied on terrorist acts to derogate from the explicit laws that are outlined in the various international human rights instruments. The aftermath of the 9/11 attacks marked the beginning of the discussions on the proportionality of the threats to national security and the human rights. It is certain to highlight that the International Covenant on Civil and Political Rights coupled with the ECHR provide provisions that would allow for derogation of particular rights. Based on the Handyside v UK it became evident that the freedom of expression interference will only be seen to necessary in the event it results to the fruition of a key social need. Therefore legislation that is seen simply to be desirable or reasonable will not be termed as be necessary interference.
The proportionality principle is made up of general international law principles and they tend to include elements of scope, duration and severity. Based on the article 4 of the ICCPR and the article 15 of the ECHR, there are two tests that a derogating state would have to fulfil. The first test is the state willing to derogate from the international ought to prove the prevalence of circumstances that may result to war or also threaten the life of the nation. The second test is to prove that the measures put in place are very much required to address the situation. A critical evaluation of these tests can properly be reviewed by the courts and not the executive or the legislative organs. Therefore by the courts taking up this mandate it is aimed at ensuring that there is proportionality. A good example is the Brind and others v UK case which the courts ensured proportionality by outlining that the order to curb the journalists from sending information that would amount to supporting terrorists was one that was aimed at curbing terrorism.
The involvement of the courts in the determination of the proportionality of the human rights and the threat to national security is that will ensure that checks and balance are imposed on the executive and the legislative arms of the government. This is based on the fact that the detection of the Muslim suspects in the A and others v secretary of State for the Home Department amounted to the interference with the liberty and the equality of the suspects by the home department. That notwithstanding the case outlined the extent of discrimination that the state was willing to apply to those that were not UK citizens. This is because British terror suspects who are also perceived to pose a similar risk face a different predicament as they can’t be locked up without trial or charge. Giving the home secretary the explicit right to order for the detection of suspects indefinitely without them knowing the reasons for their detection is one that can be associated with the Stalinist era of the Soviet Russia or the France during or before the revolution. From the case it was certain that politics wanted to surpass the international laws which are aimed to ensure that there is protection of human rights. This was clearly demonstrated by the attorney general who represented the government when he explicitly noted that the judges were trying to circumvent the elected representatives will and therefore making them undemocratic. However from the ruling what stands out is the fact that despite the government claiming national security is a contentious issue, the courts have the sole rights of delineating the boundaries of power of a rights based democracy.
Human rights are termed as universal and intrinsic to every person. Based the European Convention on Human Rights, there is freedom from slavery and torture and slavery which is imprescriptible. In the A and others v secretary of State for the Home Department case the appellate ruled against the ruling that was held by the criminal appeal court as the evidence used to convict the Muslim suspect was acquired through torture and therefor amounted to a violation of human rights. The ruling by the criminal court on this case provides a clear attempt by the United Kingdom government to deviate from the liberty rights that are provided by the European convention on human rights. The government showed its willingness to detain the non-British nationals whose presence in the country was seen to be a national security risk. Clearly the case was an illustration of the political and judicial sphere interplay and it is a demonstration that deference doesn’t amount to the unquestioning response by the UK courts on the emergency legislation that are evidently draconian.
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To: Member of Welsh assembly
From: Concerned citizen
Re: Impact of the Wales act 2017 on devolution settlement
It is certain to note that the United Kingdom is still in its early years when it comes to devolution. Therefore the wales act 2017 provides a key moment for the country as it offers the third momentous change in terms of devolution settlement. The act revises the balance of powers between the UK government and the welsh government. In the previous system those powers that were devolved to wales were found within the conferred powers. The wales Act of 2017 is set to overhaul the devolution settlement system embraced by Wales and therefore make it to have similar foundations as that of Northern Ireland and Scotland. The aforementioned countries have a reserved model which Wales felt was a solution for the current problems the country is facing.
Advantages of the Wales act of 2017
The enactment of the wales act of 2017 is the product of the recommendations provided by the Silk commission back in 2014 which were aimed at decreasing the extensive uncertainties in the Welsh devolution settlement. The major advantage of this act is that it will eliminate the lack of clarity of the previous system which had extensively been acknowledged by the civil society, academics and even policy makers. Therefore rather than returning to the well-known flawed LCO system, the passing of the act provides a sign of the unanimous agreement to embrace a reserved devolution power model and let go the conferred model of devolution. However despite the act would introduce more clarity it also has disadvantages.
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Disadvantages of the Wales act of 2017
The major drawback arises from the fact it will create more hoops in the legislation process by the national assembly. This therefore will complicate the current system and therefore creating more stumbling blocks. Those against the enactment of the wales act of 2017 noted that despite the fact it has created a comprehensive solution, it on the other hand has created another problem which seems to be worse. The bill seems like a single step made in the right direction and two made backwards. Additionally the reserved powers which is reformed and revised as highlighted by the act puts in place a better way of ensuring that power is devolved. However it fails to offer complete clarity or even ensure that the disagreement scope is eliminated entirely. It is certain to note that the model provides the best way that power can be devolved, but based on the draft Wales Bill, it is certain to highlight that the model solely is no panacea. Ultimately the act will evidently provide a lasting and strong devolution settlement, however that will only be a settlement of one of the core debates of the reserves versus conferred powers models. However the debates of whether the power should be based in London or Cardiff, in specific over the judiciary or policing, will certain continue to receive extensive debate. Just like the 2011, 2007 and 1998, the wales 2017 act brings forth as must problems as it conquers. Therefore wales has consistency provided a good instance of a country who policy makers have consistently failed to solved an age old problem.
- A and others v Secretary of State for the Home Department  UKHL 56
- Anisminic Ltd v Foreign Compensation Commission  2 AC 147
- Brind and others v UK  1 AC 696
- Burmah Oil Company Ltd v Lord Advocate  AC 75
- Entick v Carrington  EWHC KB J98
- Handyside v The United Kingdom: ECHR 7 Dec 1976
- Kelly v Faulkner  NI 31
- Shaw v DPP  AC 220
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