The Rule of Law

[StoneLaughter]

OK, the way I understand it (and it will be a simplistic view):

1. The Government are elected by the Populace on the back of their manifesto - which they have at least a moral obligation to honour, if not a legal one.

2. The Government legislate (make laws) based upon the decisions enshrined in their manifesto, and also based upon (unforeseen) exigencies presented during their tenure.

3. The Judiciary exists to (a) interpret and (b) rule on, the laws as they exist at the time of a particular Judgement being sought; whether civil or criminal.

4. If the Government "dislike" (for want of a more adult term) a particular Judgement then given sufficient support and a suitable majority in Parliament, they can issue new Laws which render such Judgements irrelevant, oboslete and impossible in the future.

So... basically, if a Government don't like a Judgement they can bang in a new law to invalidate it and to make Judgements of that nature go the desired way in future; the Judiciary simply interpret Law as it exists and express no opinion as to the validity and/or morality of that Law.

What redress to the Judiciary have if they believe a Law to be absolutely wrong and unjust in its substance? Can they refer cases to a higher Court (e.g. The European Court of Justice) when the Law causes them to "find" in a way which is morally wrong? Or are they BOUND to find against the wrong party and use the wording of the Judgement to convince the "wronged" party to continue the fight? If British domestic Law were in a particular case in direct contravention of European Law, would the Judge in a British Court find the way European Law directs, or the way British Law directs?

Please be gentle with me - these are new concepts to me and I need to get a handle on them... one day (money permitting) I intend to do a Law degree followed by a Masters; the more I understand now the better off I will be then.

Thanks

[scoobydoo]

Re: The Rule of Law

good question -look forward to answer as I only did Law A level and that was a long time ago.So I am too rusty to answer your question with any confidence. If you do a law degree are you intending to do a full time course as a mature student ? Not meant in an insulting way!

[Guest]

Re: The Rule of Law

Your view is broadly correct, although what you are describing in your first three points is the Separation of Powers, divisions consisting of an executive, a legislature and a judiciary. The Rule of Law is separate and states that the rights of individuals are determined by legal rules and not the arbitrary behaviour of authorities; that there can be no punishment unless a court decides there has been a breach of law and; everyone, regardless of position in society, is subject to the law.

As to your point four, this is precisely what the Government did when the House of Lords ruled in Burmah Oil Co Ltd v Lord Advocate [1965] that the destruction of oil fields in Burma by British forces during the Second World War was lawful and was the equivalent of requisitioning the property. Any act of requisition was done for the good of the public, at the expense of the individual proprietor and for that reason, the proprietor should be compensated from public funds. However, the result was frustrated by the passing of a retrospective Act of Parliament, the War Damage Act 1965, which exempts the Crown from liability in respect of damage to, or destruction of, property caused by acts lawfully done by the Crown during, or in contemplation of the outbreak of, a war in which it is engaged.

Parliament is the supreme law-making body within the UK. Judges interpret legislation using the rules of statutory interpretation. Constitutionally, judges have no power to question the validity of legislation (see Pickin v British Railways Board [1974]). Legislation is interpreted in line with the intention of Parliament and to develop the common law. Constitutionally, judges are subordinate to Parliament and, as above, have no power to challenge the validity of Acts of Parliament.

However, within these constraints there remains a certain amount of leeway for the judges to give new meaning to statutory language and this raises the question of whether the judges ‘make law’. This aspect of the judicial role is enhanced under the Human Rights Act 1998 which imposes a duty on the judges to interpret legislation ‘as far as possible’ in a manner to make it compatible with Convention rights.

Where this is not possible, however, the superior courts (High Court and above) can issue a ‘declaration of incompatibility’ but cannot declare an Act of Parliament invalid. The effect of this arrangement preserves both the supremacy of Parliament and also the separation of powers.

Since the passing of the European Communities Act (1972), European law became a major building block in English law and European Community law has a higher legal status than domestic law. This means that the UK Parliament cannot make decisions that undermine agreements made at a European level. Although Parliament retains the right to repeal the above Act and therefore to leave the jurisdiction of the EU. Since judges are subordinate to Parliament and can only interpret the laws that Parliament pass, they cannot pick and choose.

[strangewayofsavin]

Re: The Rule of Law

Does this over rule what you stated in August 2008, or does the new Eu law take effect?

"I think the comment from the Government's own lawyer sums up what they think of the electorate. "A manifesto promise is incapable of giving rise to a legally binding contract with the electorate. It is a point which is so obvious that I don't want to labour it."

It has therefore been officially confirmed in Court that Manifesto Pledges were not expected to be honoured and Politicians making such commitments were under no obligation to keep their promises.

Accordingly, I plan to propose to the Labour Party that for the next General Election and before that, the local elections, they print their party manifestos on softer paper and punch a hole in one corner and we can then hang it in the smallest room in the house, where for the first time in its life it will actually perform a useful function and we will be doing our bit for recycling too"