1. The Rule of Law

2. LEARNING AIMS… Explain what is meant by Britain having an unwritten constitution. Explain separation of powers. Explain the supremacy of Parliament. Explain what is meant by the rule of law Give examples of breaches of the rule of law. Critically evaluate the arguments for and against a written constitution.

3. What is the Rule of Law? The fundamental principle of our Constitution… State should govern citizens according to pre-agreed rules Rules should apply equally to all In order to understand this, we need to look at some other concepts first: UK Constitution Separation of Powers Supremacy of Parliament

4. What is a constitution? Definition: “…a body of fundamental principles or established precedents according to which a state is acknowledged to be governed” Sets out the powers and rights that the government has to rule/control its citizens… Provides the citizens with rights in relation to the power of the state

5. UK Constitution No single document Unusual in democratic society This does not mean we don’t have one! It is ‘uncodified’ We get our constitution from: Acts of Parliament Decisions made by judges Conventions

6. Bill of Rights We do not have a ‘Bill of Rights’ Magna Carta 1215 Declaration of the Bill of Rights 1688 Human Rights Act 1998 The closest we have is the Human Rights Act 1998 which allows us to rely on the rights set out in the European Convention on Human Rights

7. 3 basic principles of the British constitution are : 1.The separation of powers. 2.The supremacy of Parliament. 3.The Rule of Law.

8. Separation of Powers The French philosopher Montesquieu, developed the idea in the 18 th Century He said that state power can be divided into 3 types: 1.The Executive Government 2.The Legislature Parliament 3.The Judiciary Judges and the court system

9. Montesquieu’s Theory These powers should be separate and carried out by different bodies Avoids abuse of power… Avoids conflict of interest Does our system operate in this way?

10. Checks and Balances Each institution has the responsibility to check and limit the powers of the others Ensures that each institution acts according to their roles and does not misuse their power Without this some institutions may become too powerful and take over the legal system of a country

11. Tester Quiz 1.Does the UK have a written constitution? 2.What are the sources of the UK constitution? 3.What are the 3 underlying principles of our constitution? 4.What are the 3 arms of the state according to Montesquieu’s theory? 5. Why should the 3 arms of the state remain separate?

12. Parliamentary Sovereignty/Supremacy This is another fundamental principle of our constitution 1.Parliament is the highest source of law Can make or unmake any law it wants 2.No Parliament can bind a future Parliament 3.No other body or institution has the power to override Parliament ’Parliament has under the English Constitution, the right to make or unmake any law whatever, and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of parliament’.

13. Erosion of Parliamentary Supremacy Human Rights Act 1998 – European Convention not superior to Parliament. BUT… S3 – Judges have to interpret UK law in light of Human Rights law laid out in the European Convention on Human Rights S4 – Judges can make a‘Declaration of Incompatibility’ if UK laws don’t fit in with HR law Political pressure is placed on Parliament to change the law so that it does S10 HRA 1998 – Minister can amend a law that has been found incompatible, doesn’t need to properly go through Parliament

14. The Rule of Law Historical concept discussed by philosophers for centuries Rule of law establishes the relationship between the government and the people If we did not have the concept of the rule of law, there would be arbitrary power

15. Albert Dicey: Constitutional Expert Dicey gives us the modern understanding of the Rule of Law Key idea is that the law should apply equally to everyone, rulers and ruled alike Provides a “government of law, not a government of men”

16. Dicey’s 3 principles: 1.“No sanction without breach” This means that no one can be punished by the state unless they have actually broken the law We need to have a trial and be found guilty before the state can interfere with our rights to liberty etc The law should always be applied

17. 2.“Equality before the law” This means that there should be one law that governs everyone regardless of their status or position Law should treat everyone the same – same legal rights and same access to the legal system

18. 3.“Supremacy of Ordinary Law” The “ordinary law”means the every day law that is used in court Rights of individuals are secured and upheld through these decisions Vital that judges are independent from any political pressure What theory does this link back to?

19. Does the Rule of Law function properly in the UK? 1 st Principle… There are minor breaches e.g. on the spot fines etc There are major breaches e.g. Extraordinary Rendition - when people are taken and detained without proper processes

20. 2 nd principle… Many of the powers of the Prime Minister are based on Royal Prerogative which cannot be challenged in court Parliamentary supremacy The Queen is not properly subject to the laws of the land Access to legal aid is bad and lawyers are very expensive!

21. 3 rd principle… The judges can only apply and interpret the law that exist and Parliament can make or unmake any law that it wants Criticism from MPs can undermine public faith in the judiciary Independence is still strong though!

22. Criticisms of Dicey’s Principles Some people have criticised Dicey for being too simplistic in his views of the Rule of Law Awareness of these criticisms is important for your exams! The main criticism is that he did not anticipate that in certain circumstances, the state would actually need discretionary powers In some situations the state might need to exercise emergency powers that would infringe on our rights Any examples?

23. Jospeh Raz… Considered that the system of law had changed since Dicey’s time Far more complicated these days Discretionary powers are necessary in order to change specific (undesirable) elements of law The pursuit of social goals Also of the opinion that the law should be allowed to guide the individual’s behaviour for the greater good

24. Friedrich von Hayek Agreed with the basis of Dicey’s 1 st principle He attempted to simplify the idea, saying: “Stripped of all technicalities, the rule of law means that the government is bound by rules fixed and announced in advance His criticism was that parliamentary supremacy undermined this idea The state have to act within the boundaries of any laws that exist but… Parliament can make any law that it wants and so move the boundaries that apply to the power that the state has

25. Constitutional Reform Act 2005 This Act is important in upholding the ideas of the Rule of Law in England and Wales It officially recognised the principle of the Rule of Law in legislation, rather than it just being a theory… S 1 – ‘the Act does not..affect…the existing constitutional principle of the rule of law’ Emphasises the importance of the Rule of Law in modern society CRA 2005 – removed the House of Lords from the judicial system and replaced it with the Supreme Court Why is this important? What theory does this reflect?

26. Changes to the Lord Chancellor’s position CRA 2005 has the effect of strengthening the independence of the judiciary Why is this important? Change to the role of the Lord Chancellor Before the CRA 2005 he had jobs in all 3 arms of the state Why was this a bad thing?

27. Since the CRA 2005… Removed position as the head of the House of Lords Now can only appoint judges after recommendation from independent panel called the Judicial Appointments Commission Put in place by the CRA 2005 Still a high ranking politician Why is this a better system?

28. Summary Constitution of the UK is unwritten… Good because provides flexibility and adapts with changes in society Bad because it is not clear exactly what the powers of the government are nor what our rights as citizens are Constitutional powers are regulated by the ideas of: 1.Separation of Powers 2.Parliamentary Supremacy 3.The Rule of Law

29. Rule of law explained by Dicey’s 3 principles: 1.No sanction without breach 2.Equality before the law 3.Rights of citizens protected by judge’s decisions These ideas work in theory but not always in reality! Constitutional Reform Act 2005 reinforces the independence of the judiciary which has strengthened the idea of separation of powers Good for us as citizens to limit the possibility of arbitrary power being exercised by the state

30. Possible Questions (LA1) (a) Explain what is meant by the Rule of Law. [14] (b) Discuss the relevance of the Rule of Law in contemporary society. [11]