Sources and Nature of the Constitution :2

• The Rule of Law

• Historical Context.

• Prohibitions del Roy (1607)• Case of Proclamations (1611) (note Coke CJ’s fate)

• Crystallisation by Dicey

Sources and Nature of the Constitution :2

• Dicey based his concept of the rule of law on THREE ideals.

• (1) Government According to the Law

• Entick v. Carrington (1765)• C.f. : R v. IRC ex p Rossminster [1980] AC 952• R v. Horseferry Rd Magistrates ex p Bennett [1994]

AC 42

Sources and Nature of the Constitution :2

• (2) Equality Before the Law

• Parliamentary Privilege?

• Diplomatic Immunity?

• Crown Immunity?

Sources and Nature of the Constitution :2

• (3) The Judiciary Are the Best Guardians of the Subjects’ Rights.

• Is this realistic?

• Does the relevant case-law support this??

• Note cases about foreign detainees.

Sources and Nature of the Constitution :2

• Dicey’s theory was updated and modified by Raz. (See (1977 93 Law Quarterly Review 195)

• Three important points arise from this contribution to the debate.

• (1) Laws should be Clear

• Merkur Island Shipping Corp. v. Laughton and ors [1983] 2 AC 570

Sources and Nature of the Constitution :2

• (2) Laws Should be Prospective

• War Crimes Act 1991

• Reforms to ‘Double Jeopardy.’

• Article 7 European Convention on Human Rights and Fundamental Freedoms.

Sources and Nature of the Constitution :2

• (3) Judicial Independence is Vital

• In re M [1993] 2 WLR 433

• Matrix Churchill

• Starrs v. Procurator Fiscal (2000) HRLR 191

Sources and Nature of the Constitution :2

• The Separation of Powers

• The UK has a Tripartite System

• Executive

• Legislature

• Judiciary

Sources and Nature of the Constitution :2

• The doctrine itself

• Montesquieu

• The Lord Chancellor (McGonnell v. United Kingdom (2000))

• Overlap of Personnel between Executive and Legislature.

Sources and Nature of the Constitution :2

• Topic Summary and Conclusions.