Rule of Law

Tom Bingham's definition of the rule of law

"All persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws".

is the rule of law a legal or political principle

both!

Case of Proclamations [1611]

the King cannot use prerogative powers to change the rights through proclamations as there is a supremacy of law

Constitutional Reform Act 2005

s1 recognises the rule of law as an existing constitutional principle

Dicey

'no man is above the law, […] every man, whatever be his rank or condition, is subject to the ordinary law of the realm.'

Dicey's conception of the rule of law

1. No arbitrary power in the govt

2. every man is subject to the law

3. constitutional principles are a part of the law

Lord Bingham's features of the rule of law 1-4

1. The law must be accessible and so far as possible intelligible, clear and predictable

2. Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion

3. The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation

4. the law must afford adequate protection of fundamental human rights

Lord Bingham's features of the rule of law 5-8

5. Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve

6. Ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers

7. Adjudicative procedures provided by the state should be fair

8. The state must comply with its obligations in international law, the law which, whether deriving from treaty or international custom and practice, governs the conduct of nations.

Joseph Raz

'All laws should be prospective, open and clear.'

Entick v Carrington [1765]

'If it is law, it will be found in our books. If it is not to be found there, it is not law.

Article 7(1) ECHR: 1

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed

R(on the application of Prudy) v DPP [2009]

it was established that the law was unclear regarding assisted dying and those who helped someone go to another country to be euthanised was unclear you need to issue guidance to make it clear when you would use your prosecutorial discretion to convict someone of assisting suicide.

R(Gillan) v Commissioner of Police for the Metropolis [2006]

While the law on stop and search was precise, the ECtHR found it to be unforeseeable and having no measure of protection against arbitrary interference by public authorities

Lord Neuberger in R (Evans) v A-G 2015

it is a fundamental feature of the rule of law that the decisions of the executive are reviewable by the court.

Principle of legality

when a power is exercised so as to interfere with fundamental human rights, the courts will look for a clear justification for the application of the law. Where there is no clear justification there is no such law.

ouster clauses

provisions that are intended to prevent courts from reviewing an exercise of powers

Anisminic v Foreign Compensation Commission 1969

held that ouster clauses should be read very narrowly

Safety of Rwanda Bill

Clauses 1-5 require decision makers including the courts to misapply international law including the ECHR on human rights, contrary to the rule of law

M v Home Office 1994

Facts: the home office deported M while his application for asylum was still being considered, accidentally. the court ordered for M to be sent back to the UK

Decision: Ministers of crown are not above the rule of law and can be held in contempt of the court if they fail to comply with orders

R v Secretary of State for the Home Department ex parte Simms [2000]

Facts: the Home Sec banned journalists publishing interviews from incarcerated prisoners. Simms argued this was unlawful as it went against his ECHR Art 10 right to expression

Decision: prisoners still had their human rights and this was unlawful - human rights could only be legislated against using express words

R (Evans) v Regina (Evans) v Attorney General (Campaign for Freedom of Information) [2015]

Facts: The Upper Tribunal ruled in favour of disclosure of letters written by Prince Charles to government ministers on the request of Evans, a journalist. The AG vetoed this decision

Decision: the veto was unlawful as the executive cannot override a final decision of a tribunal unless authorised by parliament

R (Unison) v Lord Chancellor [2017]

Facts: the lord chancellor introduced fees of up to £1200 to bring a claim to an employment tribunal. UNISON a trade union argued this was unlawful as it restricted access to justice

Decision: this was unlawful as the rule of law protected access to justice

R (Privacy International) v Investigatory Powers Tribunal [2019]

Facts: Section 67(8) of RIPA 2000 stated that the tribunal shall not be subject to appeal/liable to JR

Decision: you cannot oust JR as that is against the rule of law even by express words

R (Oceana) v Upper Tribunal [2023]

Facts: Oceana's application for leave to remain in the UK was rejected and she appealed to the upper tribunal and her appeal was dismissed. the tribunal only listened to a recording and did not give her an opportunity to speak she argued that this was unfair

Decision: this did not amount to a serious breach and under s11(a) of the JR and Courts Act 2022 JR could be blocked in such cases

• rule of law can be limited by statute

Dworkin

"rights thesis" citizens have moral and legal rights before they are recognised in statutes and the rule of law should ensure that the government respects those rights

what is Raz's legalistic concept of the rule of law

the purpose of the rule of law is to ensure clarity and predictability

what is Dworkin's substantive concept of the rule of law

the purpose is to ensure the rights of the individual are protected and there is justice