Rule of Law

Why is direct engagement with ROL very important?

UK has no written constitution to establish fundamental constitutional principles.

CRA 2005 and ROL (3)

1. Mentions the rule of law in statute.

2. Recognition of the principle → Shows importance.

3. BUT unclear as to the definition adopted.

What does DICEY say about ROL? (3)

1. No man is above the law.

2. Govts where persons of authority exercise wide, arbitrary discretionary powers of constraint = contrary to ROL.

3. ROL ensures we are all equal under the law (BINGHAM).

What does ALLAN say about ROL?

ROL preserves and enhances liberty and justice.

What is the BARE BONE conception of ROL? (4)

1. Barebone PRINCIPLE OF LEGALITY.

2. Related to Hart’s rule of recognition — if something is to be regarded a law, it must follow the appropriate procedure recognised by the legal system and constitution at large.

3. Morally neutral.

4. Normative value. → Entick v Carrington = “If it is law, it will be found in our books.” but then declared SoS’ order to search Entick’s home unlawful.

   • Normative value in this Bare Bone conception in preventing unfettered executive discretion — if SoS wanted to conduct such search, he would have to either rely on statute or established precedent with regard to prerogative.

What is the FORMAL conception of ROL? (5)

1. RAZ + DICEY

2. Focus on legal certainty and procedural aspects (how the laws are formulated and applied).

3. RAZ’s 3 requirements:

   • (1) PUBLICLY AND CLEARLY STATED AND AVAILABLE.

   • (2) SHOULD NOT HAVE RETROACTIVE EFFECT (PIERSON, Home Sec murder case, can’t retroactively increase sentence).

   • (3) SHOULD BE STABLE.

4. Necessary for laws to conform to and respect ROL.

5. RAZ — Practical institutional arrangements in order to conform with the 3 requirements:

   • (1) Access to courts. — UNISON = Lord Reed = Constitutional right of access to justice is “inherent in the rule of law”.

   • (2) Independence + expertise of courts so that they can resolve disputes objectively in accordance with legal principle.

Pierson on ROL (2)

1. Laws should not be retroactive.

2. Held = Home Secretary’s retroactive extension of a prisoner’s sentence from 15 to 20 years detention was unlawful on the basis that “a sentence lawfully passed should not retrospectively be increased”.

RAZ on FORMAL concept

“Purely formal” doctrine which requires the law to “be framed and administered in such a way that is capable of guiding the behaviour of its subjects”.

CRAIG on FORMAL conception (2)

1. Focus revolves on promulgation of the law. → Does NOT pass judgment on the contents of the law.

2. Legalistic approach used to “effectively guide action”.

What is the SUBSTANTIVE conception of ROL? (4)

1. ALLAN

2. Accepts formal elements but goes further by emphasising the importance of the content of the law.

3. ROL is used to distinguish between “good” laws and “bad” laws.

4. Concerned with protection of fundamental rights and moral principles.

ELLIOT & THOMAS on the SUBSTANTIVE conception of ROL (2)

1. Substantive improves and furthers formal.

2. “The rule of law amounts to the rule of good law”.

Give 2 cases that show the existence of a SUBSTANTIVE conception of ROL

1. DALY (2001)

   • Govt policy was held to be unlawful because it conflicted with the right to attorney privilege.

   • Decision was reached through “orthodox applications of common law principles”, as opposed to convention rights, despite HRA being in effect at the time.

   • Lords Bingham + Lord Cooke = “Some rights were inherent and fundamental to democratic civilised society” and that constitutions responded by recognising rather than creating these prior rights.

2. UNISON (2017)

   • Right of access to the courts.

   • All equal under the law (Dicey), introduction of court fees do not respect this as it makes access to justice more difficult for some.

   • Lord Reed = Constitutional right of access to justice is “inherent in the rule of law” as without access to courts, the rights enshrined in the law are meaningless if cases cannot be brought to the courts in the first place.

ALLAN (1985) on the importance of the separation of powers to ROL

“The function of the court as a mediator between governors and governed necessitates the careful preservation of the independence of the Judiciary from other branches of government”.

What the controversy/criticism about the SUBSTANTIVE conception? (2)

1. Giffith + hardline political consitutionalists = greater influence of judges on the constitution will lead to a rise of machiavellian philosopher kings who rule without democratic mandate + cloak their politics in the false neutrality of a substantive conception.

   • COUNTER = Law is to be judged by individuals selected meritocratically from amongst the foremost institutions of legal practice.

2. Thus Raz distinguishes his FORMAL conception as one which is “morally neutral”.

Was Raz right to call the FORMAL conception “morally neutral”? (3)

1. NO, not ‘morally neutral’ — it is based on the basic respect for the functioning of an individual as an autonomous being.

2. Hard to separate formal and substantive conceptions.

   • Individual autonomy is potentially as contestable as a right as attorney privilege in Daly.

3. Real distinction:

   • FORMAL = reliant on a foundationalist view of justification, where individual autonomy is the foundation on which all else rests.

   • SUBSTANTIVE = reliant on a non-foundationalist view — no single principle is taken to be the foundation on which all else depends. → Instead, each belief mutually supports and is supported by the others, and is in that sense justified.

A unifying conception of ROL?

Foundational or non foundational, the rule of law simply demands that its constituent principles have some grounds of justification

Give 2 cases where Courts could be argued to have been activist in cases which concern ROL

1. UNISON — SC struck down tribunal fees regime as unlawful because it infringed the institutional right to access to courts, which is “inherent in the rule of law”.

2. CORNERHOUSE — SC held that Director was lawfully entitled to make the decision.

   • Can be criticised. → As Divisional Court points out, the independence of the Director and thus the ROL is undermined if Director gives in to foreign threats and pressure from govt.

Lady Hale’s extra-judicial writings on ROL

Suggests courts would not enforce legislation they believe to be contrary to Rule of Law.

AXA General Insurance on the ROL (2)

Lord Hope:

1. Courts can apply judicial review if Acts are regarded as contrary to the ROL (they thus enhance the ROL, not violate it).

2. Acts of Scottish Parliament were not open to JR on grounds of irrationality, unreasonableness or arbitrariness BUT were open to Judicial Review when they infringed fundamental rights or ROL.

Purdy v DPP [2009] on ROL (6)

1. No clear prosecution guidelines for a woman whose husband wanted to help her travel to Switzerland for her assisted suicide → Would he be prosecuted under Suicide Act?

2. Against ROL as law is not clear and available.

3. HELD = Art8 ECHR placed duty on DPP to implement an offence-specific policy on the factors he will take into account in deciding whether or not to prosecute.

4. PRINCIPLE OF LEGALITY in articles of ECHR requires:

   • (1) Any interference with ECHR rights to have a legal basis in domestic law.

   • (2) Law of rule must be accessible and precise.

   • (3) Law of rule must be applied in a non-arbitrary and proportionate manner.

5. For a law or rule to be accessible and precise, the Executive must ensure that the scope of discretion under the law and the manner of its exercise are indicated with sufficient clarity.

6. EKINS = PURDY undermines ROL as there was never a lack of clarity in that area in the first place.

Walumba Lumba [2011] on ROL (2)

1. Lord Dyson = ROL requires policy to be transparent to the public. → “There is a correlative right to know what that currently existing policy is, so that the individual can make relevant representations in relation to it”.

2. Issue = JR against Home Office following an unpublished policy whereby there was a “near blanket ban on release”.

Evans [2015] on ROL (5)

1. Issue = Prince Charles’ ‘Black Spider’ Memos — Under FOIA 2000, journalist requested correspondence between Prince Charles and ministers.

   • Upper Tribunal approved the request but AG used his veto power under s.53 FOIA to prevent the request for disclosure.

2. Held = AG’s use of veto power was unlawful. → Reached conclusion through the use of PRINCIPLE OF LEGALITY.

3. Supports Bingham’s SUBSTANTIVE ROL by highlighting key elements like judicial supremacy, transparency, and equality before the law.

4. Shows how courts act as a check on Executive power, ensuring laws applied fairly + govt actions subject to legal oversight.

5. Ruling aligns with Bingham’s view that ROL requires substantive principles of fairness, accountability, and limits on Executive authority.

Reilly No.2 [2016] on ROL (4)

1. Underhill LJ = Contrary to ROL for state to interfere in ongoing legal proceedings in order to influence the outcome in a manner favourable to itself.

2. Principle of ROL and notion of fair trial enshrined in Art6 preclude any interference by the legislature.

3. Issue = Jobseekers 2013 Act aimed to retrospectively validate the 2011 Regulations and also determined thousands of pending appeals in statutory tribunals in the Govt’s favour.

4. Held = Jobseekers Act 2013 was incomptaible with Art6(1) ECHR>

UNISON [2017] on ROL (4)

1. Lord Reed = principal ground of unlawfulness = infringement of constitutional right of access to courts which is “inherent in the rule of law”.

2. “Ideas and values of the rule of law are reflected and embedded in the ordinary common law”.

3. Lord Reed = “At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society…Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced.”

4. Kavanagh described ROL as a “collaborative conception of the separation of powers”.

Simms [2000] on Principle of Legality (3)

Lord Hoffmann:

1. Principle of legality= “Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words”.

2. Unless P expressly or necessarily implicates otherwise, courts must assume that “even the most general words were intended to be subject to the basic rights of the individual”.

3. Held = blanket ban on prisoners giving interviews to journalists was against prisoner’s common law right to free speech.

Evans [2015] on Principle of Legality (2)

1. Lord Reed = “Principle of legality means not only that Parliament cannot itself override fundamental rights or ROL by general or ambiguous words, but also that it cannot confer on another body, by general or ambitious words, the power to do so.”

2. Thus, if s.53 FOIA is to have the effect AG argues it does, it must be “crystal clear” from the wording of FOIA and can’t be justified merely by “general or ambitious words”.

VARUHAS on Principle of Legality (4)

1. There are at least 3 versions of POL: Classic, Augmented, Proactive.

2. Augmented POL = Express words authorising interference with basic norms = insufficient to authorise disproportionate interferences.

   • Disproportionate interferences must be sanctioned by statutory words specifically supporting disproportionate interferences.

3. Augmented Principle of Legality offers courts a way to apply strict scrutiny to the substance of administrative action in cases where substantive review would NOT permit such scrutiny.

4. BUT Augmented POL is effecively substantive review by aother name. → Detemrination of Qs of scope involves cosnidering the substantive

Cornerhouse [2009] on ROL (2)

1. BARBER = ROL issue. → Shows we are not all equal under the law.

2. Minister called off an investigation due to threats from company who had committed fraud. → Had the discretion to do so.

Malone [1979] on ROL (3)

1. Does not support idea of protecting rights.

2. No right to privacy at the time therefore Govt not seen as acting unlawfully by listening in on phone conversations. → No positive legal authorisation required.

3. Shows that even if rights appear to be fundamental, that is not sufficient for judicial decisions.

McGonnell v UK [2000] on ROL (4)

1. Supports judicial independence.

2. Shows bias when a member of the judiciary is also responsible for passing legislature.

3. To maintain equality under law, separation needs to be upheld.

4. However, JENNINGS points out we will never be equal as there are certain suits ministers and judges are immune to.

BARE BONES conception of ROL & Separation of Powers (2)

SOP forms the foundations of ROL by enabling the Bare Bones conception to subsist for 2 reasons:

1. Enhancing accountability.

   • McGonnell v UK — UK’s breach of Art6.

     • Bailiff/deputy bailiff sat as president of Guernsey when proposed legislation was being debated and then subsequently sat as a judge of Royal Court in a case where that legislation was relevant.

     • Separation needs to be upheld to uphold equality under the law.

2. Institutional efficiency.

   • Efficiency in this context = SOP allows for more accurate + less resource-consuming determination of whether or not an individual is acting ultra vires.

   • Jackson = highly complex + politically sensitive = would be inconceivable for institutional incompetence to hamper the efficient pursuit of ROL, which surely entails that law be correctly applied.

   • BARBER = triadic model of court + composition of experts = well-placed in the resolution of non-polycentric issues.

FORMAL conception of ROL & Separation of Powers (2)

1. Independence of Judiciary:

   • RAZ = practical institutional arrangements = access to independent + expert courts.

   • Independence + expertise => application of universal and objective rules => stability and clarity of law.

   • Pierson = laws should not be retroactive → Independent judiciary militates against retrospective and uncertain exercise of executive powers.

   • Entick v Carrington = SOP helps secure the formal requirements of ROL, which are distinct from unfettered executive discretion contrary to legal rules. → If SoS wanted to conduct search, he would have to either rely on statute or established precedent with regard to prerogative.

2. Executive-Legislature Separation:

   • Despite “inefficient secret”, the distinction between Exec and Leg that exists is able to inhibit arbitrary and unexpected exercise of power.

   • QUINT = “SOP diminishes the possibility of passionate and unreviewable ad hoc executive action against individuals because of their personal qualities”.

   • Powerful safeguard against abuse = procedural requirement for Executive to rely on Parliamentary legislation.

   • Principle of Legality - challenges the proprierty of Executive to determine the boundaries of civil rights.

SUBSTANTIVE conception of ROL & Separation of Powers (4)

1. ALLAN = SOP between Exec and Leg affects content of the law.

2. This is because of the removal of politically charged Exec from Leg facilitates deliberative lawmaking process which is detached from political ambition.

3. Ensures that “pertinent requirements of justice are identified and affirmed”.

4. SOP facilitates creation of laws which are rich in normative value.

   • BUT accepting this idea requires rejection of “elective dictatorship”.

   • Elective dictatorship = anachronistic view. → Current reforms like Fixed-term Parliament Act (prevented elections called on whim) and 2009 Wright Reforms (shifted power from whips to MPs).

   • Growing convention of govt accountability to P (consulted P before committing armed forced in Syria).

What are 2 categories of cases in which ROL has been applied?

1. Orthodox manner in which the ROL is used in legal reasoning — UNISON and AXA.

   • Here, ROL is used as a constitutional principle which informs the application of legal rules, rather than a doctrine to be applied in and of itself.

   • AXA = Legal doctrine here was proportionality. → ROL was merely cited as a factor to consider, counterbalanced by democracy. → Thus unlike legal doctrine, ROL is subject to other considerations which militate against it.

   • UNISON = Deciding factor was common law constitutional right of access to courts. → ROL merely supplied explanatory force to the decision.

2. Direct application of ROL to courts, not just explanatory role. → Privacy International and Jackson.

   • More contemporary view supported by Allan.

   • BUT contrary to constitutional orthodoxy + lack of general approval from academics and judges.

What does JOWELL say about the Principle of Legality?

JOWELL = Principle of Legality = fundamental component of ROL = stands distinct from anarchy and prevents tyranny.

What are 3 roles of the Principle of Legality in the UK constitution?

1. Conditions the relationship between the Judiciary and the Executive & Constrains the Crown’s prerogative powers.

2. Constrains the exercise of statutory powers conferred on the Crown.

3. Place checks on the exercise of legislative authority.

How does the Principle of Legality condition the relationship between the Judiciary and the Executive, and contains the Crown’s prerogative powers? (7)

1. Case of Proclamations = established the prerogative could NOT be used to change the law of the land.

2. Prohibitions del Roy = established that the courts could establish the extent and existence of the prerogative.

3. Entick v Carrington = established that Ministers of the Crown may NOT exercise any power unless authorised by a rule of law.

4. GCHQ = POL was expanded to allow the courts to review the manner of the exercise of prerogative powers.

5. Miller I = POL was expanded to limit the use of prerogative where despite not violating the letter of an AOP, it would frustrate its legislative purpose and objective.

6. Miller II = Went even further because POL was not only about recognising the supremacy of AOP, but justified the substantive defence of Parliament’s constitutional role by the courts.

7. Thus POL subjects the prerogative to law, but also conditions the relationship between the three branches.

How does the Principle of Legality protect common law and statutory rights? (5)

1. Through JR and doctrine of ultra vires, courts have prevented the Crown from exceeding its legal powers or infringing upon common law rights.

2. FBU = Courts asserted their right to ensure the exercise of delegated powers did not frustrate the intention expressed in primary legislation.

3. Unison = Courts held that fees imposed by LC for tribunals were unlawful on the grounds that it breached ROL and common law right of access to the courts.

4. Simms = Court rejected the right of a minister to diminish common law rights, leaving such decisions to Parliament which would have to accept the political cost by expressly and necessarily legislating for such alterations.

5. Thus, we see that by constraining the exercise of executive discretion, POL articulates the proper constitutional relationships between branches of govt and serves as a safeguard of common law and statutory rights.

How does Principle of Legality place checks on the exercise of legislative authority? (6)

1. While PS is still the overriding feature of the relationship between Judiciary and Parliament, courts retain much latitude in the interpretation and application of statutes.

2. Strong presumptions used by Courts to protect constitutional values and rights, e.g. by presuming against retrospective criminal punishments (Pierson).

3. After HRA 1998, POL has included the statutory requirement to interpet statutes to give effect to ECHR rights by s3 HRA, and if need be make DOIs by s4.

4. Very treatment of HRA and other constitutional statutes as “higher law” protected from implied repeal (Thoburn) is an application of the POL, which presumes that Parliament, except where express or necessarily implied, intends to legislate in a way that is consistent with its international obligations and rights previously created by Constitutional statutes.

5. Courts are willing to discuss a much more substantive idea of POL, in which courts can overrule ‘unlawful’ statutes.

   • Lord Steyn in Jackson = suggested certain laws conflicted so greatly with constitutional and ROL values that it is justified for courts to set them aside.

6. ELLIOT = POL might entail a core set of rights and values which cannot be cut through even by Parliament.

   • If true, POL will have even greater constitutional role, not just of restraining Executive and ensuring P faces political cost, but altogether entrenching such rights against even an AOP.

Explain a limitation of POL’s role in the constitution (4)

1. Not overriding or inviolable.

2. May be reasonably set aside on other grounds.

   • Cornerhouse = Courts held that govt could justifiably cease an investigation on the grounds of a credible threat to national security, even though it was effectively submitting to political blackmail.

3. Courts have declined to intervene to prevent such legislative Acts.

   • Reilly = Having ruled against ultra vires exercises of Executive power, Parliament then enacted retrospective legislation to effect such decisions anyway, in tension with the requirements of POL and ROL.

4. While Jackson and AXA do suggest a willingness to consider the idea of legislative review, Parliament could choose to enact the express abrogation of rights as long as it stated its intention unambiguously in statute.

   • Would be uncertain how the political crisis between Courts and Parliament would be resolved.

   • Would POL prevail?