workshop 7 - rule of law

What is the meaning of the ‘rule of law’?

-directly referenced as a ‘constitutional principle’ in section 1 of the Constitutional Reform Act 2005

-all persons and authorities within the state, should be bound by and entitled to the benefit of laws

What is the ‘formal’ school of thought?

• legal procedure must be clear and certain

• law must be prospective

• law must be clear

• must be applied equally

• judiciary must be independent

• the ‘moral’ content of laws is not determinative of whether the rule of law exists in a given jurisdiction

• No retrospective liability (if you didn’t know/it wasn’t illegal at the time)

What is the ‘substantive’ school of thought?

• same formal requirements apply, but a moral component is also necessary

• without respect for fundamental human rights and freedoms, a rule of law society cannot exist

• accept formalists precepts but go further to include moral aspect

What is the relationship between the rule of law and the separation of powers?

-The relationship between the rule of law and the separation of powers is a very important one. It relates to the judiciary's perceived role as 'guardians' of the rule of law

-doctrine of the separation of powers is intrinsic to the rule of law

What is the content of the rule of law?

1. The law should be accessible, clear and predictable.

2. Legal issues should ordinarily be resolved through legal processes and not through the exercise of administrative discretion by government officials.

3. The law should apply equally to all.

4. The law should afford adequate protection for human rights.

5. There should be access to justice in the courts without inordinate delay or expense.

6. Public officials, including ministers, should exercise the powers they have been granted in good faith and within the limits of those powers.

7. Legal and adjudicative processes should be fair.

8. The state should comply with its obligations under international law

What is the requirement for legality under the rule of law?

• Any government interference with persons or property must be sanctioned by a legal authority (whether in statute or the common law)

• The presumption, when interpreting statutes, is that Parliament cannot be seen to have intended to restrict important rights and freedoms unless this is made clear. This has come to be known as the legality principle – see the later section on ex p Simms.

• Many public (governmental) bodies are incorporated by statute and so statutory provisions will define and limit their legal capacities.

• The independence of the judiciary is essential in this respect, because the courts determine whether government power is lawfully exercised, i.e. has been exercised within the powers given to it.

What is the mechanism by which the rule of law is protected?

-judicial review 

-Governments cannot simply be trusted to adhere to the principle of legality. There must be some constitutional mechanism in place to ensure that they do.

-Judicial review is the mechanism by which the rule of law is protected – and arbitrary use of government power prevented

-Administrative Courts will consider whether an action was lawful, in accordance with the powers granted and the rights protected by:

1. Legislation

-the court cannot review primary legislation. However, the court can assess whether any public body has complied with the provisions in an Act.

-the courts can review the legality of delegated legislation, by assessing whether it is in accordance with the powers granted by the parent Act, and it can assess whether the government has acted in accordance with the delegated legislation.

1. Common law and prerogative power

-The court can assess whether the government has breached a common law constitutional right (e.g. the right to protest) or has lawfully exercised a prerogative power.

How does the rule of law and parliamentary sovereignty link together?

The rule of law operates as a check on executive power

What is another fundamental feature of the rule of law?

-legal certainty

-Legislation should be clearly drafted but this is not always the case

• legislation should apply to future actions, not retrospectively to past actions. Uncertainty is created if one does not know whether the law may change so that something you do in the present, which is currently lawful, could become illegal and punishable at a later date.

-However, retrospectively applicable legislation is sometimes passed when Parliament wishes to legislate to overturn a decision of the courts – as it is constitutionally entitled to do – or to put an accepted procedure on a statutory footing. What matters is not that the law changes; it is the impact of the new law on the person who acted under the old law that is significant.

What are examples of retrospective legislation (law that applies to events, actions, or considerations that happened before the law was enacted)?

1. War Damage Act 1965: Overrode the judgment of the House of Lords in Burmah Oil Co Ltd v Lord Advocate, [1965] AC 75. Ultimately, therefore, the government was not obliged to pay damages for property destroyed or damaged in the war, as the court had previously ordered.

2. War Crimes Act 1991: Empowered the UK courts to punish war crimes committed by persons who were not subject to British jurisdiction at the time when the crimes were committed, namely during World War Two

What is the courts’ role in the rule of law?

-courts’ role is to ensure that governmental bodies stay within the boundaries of what is allowed by Parliament through legislation

-In its simplest form, this review will determine if an executive power exists or not – this was the fundamental point in Entick v Carrington back in the mid-18th century

What is discretionary power?

the authority to make decisions based on judgment and flexibility, rather than being strictly bound by rigid rules.

What is arbitrary power?

Arbitrary power is the exercise of authority that is capricious and unconstrained by rules or reason. It means a decision is based on the will or whim of the person in power rather than on facts, laws, or shared interests. This type of power is often seen as oppressive because the person subject to it cannot predict the actions of the power-holder or rely on a predictable legal or social framework. 

Can legislation prescribe a single lawful course of action in EVERY situation?

-Legislation cannot and arguably should not try to prescribe a single lawful course of action in every situation. Some matters have to be left to the discretion of the executive (the decision-maker)

-Legislation therefore often confers a 'discretion' (i.e. a choice) on the relevant decision-maker) as to how to exercise the powers they have been given.

-Rule of law thinkers, such as Dicey, have a natural suspicion of discretionary power because they believe that less tightly restricted power gives the executive greater potential to use such power in an arbitrary way, which is anathema to them.

-Therefore, an important aspect of the rule of law and one of the key functions of judicial review is to control the exercise of discretionary power granted by legislation. If a discretionary power has been given, the courts can put the decision-maker to test to see that it has been exercised properly.

What happened in the case Liversidge v Anderson [1942] AC 206?

-This case was decided during the Second World War and illustrates the different judicial attitude of the time.

-The Home Secretary was empowered under Reg.18B of the Defence Regulations to imprison any person, if he had 'reasonable cause to believe' that such a person was 'of hostile origin or associations'.

-Liversidge was detained without trial under this regulation. He sued the Home Secretary for false imprisonment, claiming that 'reasonable cause to believe' imputed an objective factual standard, which the Home Secretary had not met, as no evidence of his intentions had been shown.

-The majority of HOL disagreed and accepted the Home Secretary's interpretation of the regulation. They held that there was no objective requirement, enabling him to take this action, as long as his belief was an honest one.

-Thus, the courts could not inquire into the grounds for the detention, unless there was evidence to suggest that the Home Secretary had not acted in good faith.

-In the minority was Lord Atkin. Famously accusing the majority of being 'more executive minded than the executive', therefore, the Home Secretary needed to show some evidence for his justification.

What happened in the case IRC v Rossminster?

-concerned the use by the Inland Revenue Commissioners (‘IRC’) of powers under the Taxes Management Act 1970 to enter and search premises, and seize documents, if they had 'reasonable grounds' for suspecting an offence and 'reasonable cause to believe' that the items seized would be required as evidence in relation to tax fraud.

-Suspecting tax fraud, the IRC officials obtained search warrants, entered Rossminster Ltd’s premises, and seized documents without informing its directors of the particulars of what they suspected.

-At the Court of Appeal, the case was notable for an emotive judgment from Lord Denning who, in a speech influenced by a substantive conception of the rule of law, found firmly against the IRC. He was particularly concerned that no details of the offences suspected were contained in the warrants and that the tax authorities had effectively been allowed unfettered authority to remove documents from the company and its individual directors.

-In contrast, the HOL laid greater emphasis on the strict words of the statutory provision, which did not require specific details about the nature of the fraud suspected. As a consequence, the majority of the lords found that the IRC’s actions fell within the authority of the statutory power given by Parliament and were therefore lawful.

-this case is also significant for further judicial comment on Liversidge, nearly four decades later, relating to the use of the phrase 'reasonable cause to believe'. Confirming that it should be seen as a question of objective fact, to be tried on evidence, Lord Diplock stated: “the time has come to acknowledge openly that the majority of this House in Liversidge v Anderson were expediently and, at that time perhaps, excusably wrong and the dissenting speech of Lord Atkin was right".

What does the rule of law require in terms of equality?

-the rule of law requires that the law applies equally to everyone, as far as possible.

What are the exceptions to everyone being equal under the law?

-While the principle generally holds true, especially in the context of holding the government to account for its actions, there are some exceptions:

1. The monarch is, arguably, above the (criminal) law.

2. Judges in higher courts are immune from civil litigation for acts done within their official jurisdiction.

3. Parliamentary privilege – MPs cannot be sued for what they say in Parliament.

4. Diplomatic immunity.

5. Children are not subject to the same laws as adults.

What is ‘administrative discretion’ and why does it create tension with the rule of law?

-the administrative discretion given to government by Parliament (via legislation) creates one of the most acute potential forms of tension with the rule of law

-Administrative discretion, given by Parliament to the government via legislation, is the power for ministers and public bodies to make laws and decisions within the framework of an Act of Parliament. This power allows them to create "secondary legislation," such as statutory instruments, regulations, and rules, which flesh out the details of a primary Act of Parliament. Examples include a minister setting a specific tax rate or a public body defining how a new law's provisions apply to different situations. 

What is the most obvious barrier to justice?

-access to justice

-cuts to the government's legal aid budget have made it increasingly difficult for criminal defendants, and those involved in civil claims, to obtain qualified legal representation. This has led to a significant increase in self-representing ‘litigants in person’ which means that cases take longer, and the risk of unjust outcomes increases

What is another barrier to justice in civil courts?

-starting a case as a claimant costs money (in court fees). Sometimes too the risk of having to pay a defendant's costs (if a claimant loses) deters people from pursuing claims which may not succeed.

What did the SC find in the case of R(Unison) v Lord Chancellor?

-In the case of R (Unison) v Lord Chancellor [2017] UKSC 51 the Supreme Court found that the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013, (a statutory instrument which introduced a fees regime for bringing claims in employment tribunals and the Employment Appeal Tribunal), was unlawful under both domestic and EU law, as it effectively prevented access to justice. The Supreme Court reiterated that the constitutional right of access to the courts was inherent in the rule of law. Courts existed in order to ensure that the law was applied and enforced. In order for the courts to perform that function, people, in principle, had to have unimpeded access to them. That right of access was valuable to society as a whole and not just to the particular individuals involved.

What does Lord Bingham say about the principle of the law being applied equally to everyone?

-"save to the extent that objective differences justify differentiation".

-For example, young children are less mature than older children and adults. This is an objective difference which justifies different treatment under the law.

-However, as Lord Bingham explains, the differentiation must be relevant to the distinction. • The law properly allows a non-British national with no right of abode in the UK to be deported. It does not allow a British national to be deported. The differentiation (deportation) is relevant to the distinction (national / non-national).

-In contrast, it was not compatible with the rule of law to allow non-nationals suspected of international terrorism to be detained indefinitely without charge, yet not apply the same restriction to nationals suspected of the same conduct. The distinction (based on nationality) was not relevant to the differentiation (indefinite detention or not), given the recognised involvement of UK nationals in terrorism.

What are examples of inequality of application of laws?

-Schedule 7 of the Terrorism Act 2000 is described by Liberty as a "breathtakingly broad and intrusive power to stop, search and hold individuals at ports, airports and international rail stations". The police, customs or immigration officer need not have any grounds for suspecting the person has any involvement in terrorism or any criminal activity at all.

-Under Schedule 7, the individual may be:

1. Detained and questioned for up to nine hours.

2. Searched and have their belongings retained for up to seven days.

3. The person has no right to a free legal representation while detained at the port or border

4. If detained at a police station, officers can take the person’s biometric data – including fingerprints and DNA.

-According to Liberty: "Recent research suggests Asian passengers are 42 times more likely to be stopped under schedule 7 than their white counterparts."

-However, it is strongly arguable that the very wide discretion given to officers under Schedule 7 undermines the rule of law in its application, given that the powers are used disproportionately against particular racial groups. The legislation does not purport to accord different treatment to different groups of people, but the way it is applied does do so, without there being any relevant distinction between those people.

Has the HRA been planned to be repealed?

-The ECHR is the main source of UK human rights law.

-ECHR rights are part of UK law, as they have (very largely) been incorporated into our domestic legal system by s. 1 of the HRA 1998

-It is important to note, however, that, while the HRA puts fundamental rights on a statutory footing and obliges public authorities to comply with them, there are long-standing and developing equivalent rights under the common law, for example: the right to life; the prohibition of torture; no punishment without law; the right to freedom of expression and to public protest.

-Nevertheless, the HRA provides greater clarity and certainty about the circumstances in which rights may be engaged and a higher degree of accessibility to mechanisms for their enforcement.

-The repeal of the HRA has been urged by some politicians for a number of years. A Bill of Rights Bill, was introduced in the Commons (in 2022), proposing some substantial changes to the framework for rights protection in the UK. However, it was withdrawn by Lord Chancellor, Alex Chalk, in June 2023.

Where is the right to a fair trial enshrined?

-In Article 6 of the ECHR and in the common law of the UK.

-Lord Bingham identified the right to a fair trial as "a cardinal requirement of the rule of law".

What are the 4 'significant threats' to the right to a fair trial that Liberty have identified?

1. The UK has signed up to "fast-track" extradition treaties which prevent UK courts from considering whether there is evidence to justify the extradition request.

2. The line between criminal and civil law has been blurred by the widespread use of ASBOs and other civil orders.

3. A parallel system of secret courts and secret evidence has been developed, under which those accused of terrorism can be left "languishing on control orders for years on end without being told why" and without being able to challenge the suspicions against them.

4. Hearings are conducted under the 'closed material procedure.' This allows for one party to present sensitive evidence to the judge which other parties to proceedings cannot examine

What is a state that disregards international law standards known as?

-International law sets widely accepted standards for executive conduct, including the humane treatment of detainees and combatants, which align with human rights norms. A state that disregards these standards risks undermining its claim to be a “rule of law” state. In June 2018, the UK’s JISC reported government complicity in detainee mistreatment and rendition, highlighting unclear guidance on interviewing detainees abroad and sharing intelligence to avoid involvement in torture.

Can governments criticise judges?

-The separation of powers requires the judiciary to be separate from the executive. It arguably also requires the executive to respects the role of judges as the final arbiters of what the law means.

-there has been a trend in recent years for the government to criticise the judiciary overtly. For instance, Prime Minister, Boris Johnson, went as far as to say that he "profoundly disagree[d]" with the UKSC’s judgment in Miller (No.2). Lord Hailsham reminds us that: "in properly exercising judicial power to hold ministers, officials and public bodies to account, the judges usurp no authority. They exercise a constitutional power which the rule of law requires that they should exercise". It is arguably detrimental to the rule of law for government officials to express views on matters which are outside their constitutional remit, once the court has definitively ruled

In addition to the proposed repeal of the HRA, what are two other challenges of immediate relevance?

the continued legal fall-out from Brexit, and the increased automation of public decision-making.

What does the EU Withdrawal Act create?

-Creates 'Henry VIII powers’ which allow government to change primary legislation by statutory instrument ('SI'), without further recourse to Parliament.

-In October 2019 the government withdrew one such SI following a legal challenge by the Public Law Project (PLP). The SI empowered government officials to amend VAT on customs and excise law by public notice - not by law - following Brexit. Jo Hickman, PLP director, said: 'The use of public notices in this way has been likened to making law by proclamation as in the time of Henry VIII. Introducing a power to change the law completely outside of the parliamentary process would set a dangerous and undemocratic precedent. The Statute of Proclamations 1539 was repealed after the death of Henry VIII for good reason.’

What is automated decision making?

-AI and algorithm-driven decision-making is increasingly used in public administration, but it raises rule-of-law concerns. Dominic Grieve highlighted post-Brexit online applications for UK leave to remain as an example: applicants cannot easily appeal algorithmic decisions because the factors and reasoning behind them are opaque. While automation offers speed and cost benefits, it undermines judicial transparency, accessibility, and certainty, challenging core principles of the rule of law.

How does the principle of parliamentary soveriegnty create tension with the rule of law?

-Parliamentary sovereignty, the UK’s dominant constitutional principle, can create tension with the rule of law. Courts uphold the rule of law mainly by scrutinising executive actions, but Parliament’s supremacy means it can legislate freely—even in ways that undermine rule-of-law principles, such as abolishing judicial review or altering democratic rules. This hypothetical scenario was discussed in obiter by the law lords in Jackson v Attorney General [2005] UKHL 56, a key constitutional case.

How does the Safety of Rwanda Act highlight tensions with the rule of law?

-The Safety of Rwanda (Asylum and Immigration) Act 2024 highlights tensions with the rule of law. Designed to enable the removal of ‘unlawful’ migrants to Rwanda, section 1(2)(b) declares Parliament’s judgment that Rwanda is a “safe country.” This directly contradicts the UK Supreme Court’s ruling in R (AAA (Syria) and others) v Secretary of State for the Home Department [2023] UKSC 42, which found a real risk of breaching the non-refoulement principle for individuals sent to Rwanda under the UK-Rwanda agreement.

What principle did the case Entick v Carrington highlight?

-The principle in Entick v Carrington (1765) 19 St Tr 1029, that governmental power can only be exercised on identifiable authority and in a lawful manner, is fundamental to the exercise of restraint on the power of the executive.

The separation of powers underpins the two mechanisms for that restraint:

1. Control by Parliament

Parliament decides whether or not government proposals become law, and it passes laws which gives the executive powers but within regulated restrictions.

2. Restraint by the courts

The executive's 'ultra vires' actions are restrained by judicial review.

"The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based." Per Lord Hope in Jackson v AG [2005] UKHL 56.

What is one of the principle sources of legislative restriction over the use of executive power?

-the Human Rights Act 1998. The Act was passed by Parliament to give effect in UK law to rights and freedoms guaranteed under the European Convention on Human Rights.

-This means that the HRA is the principal source of protection against government interference with human rights.

-If your Convention rights have been breached, you can seek redress in a UK court. The court should attempt to interpret UK law in a way which is compatible with your Convention rights. Public authorities, e.g. government departments and the police, must act in accordance with your Convention rights (unless they have a defence). Parliament will (in most cases) ensure that new laws are compatible with Convention rights.

What specific concept is a very important aspect of the protective function of the ECHR?

-the concept of proportionality

-Some rights under the Convention are absolute rights, such as the prohibition on torture and inhuman or degrading treatment. The state can never restrict absolute rights. Others are limited or qualified rights, which the state can legitimately interfere with in some situations.

-Qualified rights (such as privacy and freedom of expression) can be interfered with, if:

-There is a "legitimate aim" in restricting the right (including public safety, the prevention of crime, the protection of health, national security or the protection of other people’s rights).The restriction is in accordance with or "prescribed by" law. (Note the rule of law basis of this concept).The restriction is "necessary in a democratic society".This requires that the restriction corresponds to a pressing social need and is proportionate to the aim pursued

What case illustrates the proportionality principle?

-Sunday Times v UK

-This judgment of the European Court of Human Rights ('ECtHR’) in Sunday Times v UK (1979-80) 2 EHRR 245 illustrates how the proportionality principle is applied. (The case pre-dates the Human Rights Act - today, it could be resolved in the UK).

-Between 1958 and 1961, the drug thalidomide was prescribed as a sedative to some pregnant women; it was later found to cause serious birth defects. A negligence claim was brought against the drug company. In 1972 the Sunday Times published an article which exposed the tragedy. A High Court order was obtained restricting further publication on the basis that it might affect negotiations between the drug company and the victims in the ongoing court case. The court also made it clear that further publication would constitute contempt of court.

-The newspaper took its case to the ECtHR, which held that the UK court order had infringed its freedom of expression. The thalidomide scandal was of undisputed public concern and the public and families of victims had a right to know about it. The ECtHR did not accept that there was any greater "pressing social need" which could justify the restriction on the story. The court order and threat of contempt proceedings were a disproportionate restriction, therefore, on the newspaper’s freedom of expression.

What does the ‘derogation’ from convention rights mean?

-The European Convention on Human Rights recognises that, in certain circumstances, member states may need to take measures which temporarily suspend certain human rights.

-For example, in times of war, the government may wish to have the power to detain individuals without recourse to judicial procedures. States are therefore permitted to derogate from some, but not all, Convention rights, rendering them inapplicable for a specific period of time.

Article 15 ECHR provides:

"1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. "

What does the Belmarsh case/A & Others v Secretary of State for Home Dept judgment illustrate?

-illustrates how, although the government can derogate from some ECHR rights in defined circumstances, it can only do so in accordance with the law.

-This case concerned the government's derogation, under Article 15 ECHR, from the right to personal liberty under Article 5(1) ECHR. It was argued that this derogation was necessary so that the government could initiate a policy of indefinite detention of foreign nationals suspected of being terrorists (who could not be forcibly removed from the UK).

-This policy was a key element of the Home Office's response to the threat of terrorism in the UK, following '9/11'. It led to a number of suspected 'international terrorists' being detained without trial in Belmarsh Prison for up to three years.

-In accordance with Article 15, the Home Office therefore had to show both that there was a "public emergency threatening the life of the nation" and that the measures taken were "strictly required"; in other words that they represented a proportionate response to the aim behind the anti-terrorism policy.

-The House of Lords found as follows:

-The decision as to whether or not a "public emergency" exists, within the meaning of Article 15, is largely a political decision, and the court should "give great weight" to the higher competence of the government to assess this factor. (Note, however, a bold dissenting opinion on this point from Lord Hoffmann.) However, even if it was accepted that there was a public emergency, the measures only targeted people who were non-UK nationals. This was not deemed to be a proportionate and rational response, given that the contemporary threat was equally evident from UK nationals. The measures were also unjustifiably discriminatory (in relation to Article 14).

-Note the rule of law themes in this case relating to equality before the law and non-discrimination, reflected by Lord Bingham (at para 67):

"What has to be justified is not the measure in issue but the difference in treatment between one person or group and another. What cannot be justified here is the decision to detain one group of suspected international terrorists, defined by nationality or immigration status, and not another."

What is an example of a ‘constitutional statute’?

-The Human Rights Act 1998 is a clear example of a 'constitutional statute', but it is by no means the only one.

-The modern view is that constitutional statutes are more difficult to repeal than ordinary legislation and so afford an additional level of protection for constitutional rights. (This point will be explored further in the materials relating to parliamentary sovereignty.)

-Statutes corresponding to this definition have existed for centuries. Some examples are:

-Bill of Rights 1689; Act of Settlement 1701Parliament Act 1911 Representation of the People Act 1918

More recent examples include:

-European Communities Act 1972Scotland Act 1998Constitutional Reform Act 2005

When was the broad definiton of a 'constitutional statute' first given?

-by Laws LJ in Thoburn v Sunderland City Council [2002] EWHC 195 (Admin) as one which:

-'conditioned the legal relationship between the citizen and state in some general, overarching manner, or enlarged or diminished the scope of what were regarded as fundamental, constitutional rights.'

-The definition of a constitutional statute is developed further by Farrah Ahmed and Adam Perry in the Oxford Journal of Legal Studies, Vol 37, Issue 2, Summer 2017, pp 461–481:

"A constitutional statute is a statute at least a part of which

(1) creates or regulates a state institution and

(2) is among the most important elements of our government arrangements, in terms of (a) the influence it has on what state institutions can and may do, given our other governing norms, and (b) the influence it has on what state institutions can and may do through the difference it makes to our other norms.

Simplifying …, a constitutional statute is a statute that is about state institutions, and which substantially influences, … what those institutions can and may do."

What is the doctrine of ‘implied repeal’?

-The doctrine of 'implied repeal' is that a new statute, which is inconsistent with an existing statute, will automatically supersede the existing law without there needing to be an explicit provision to that effect – in other words, without the need for ‘express repeal’.

-Constitutional statutes are different, because the doctrine of implied repeal is now seen not to apply to them. They may be repealed, but only by "express words in a later statute or by words so specific that the inference of an actual determination [by Parliament] was irresistible." (Thoburn, per Laws LJ).

-The principle that constitutional statutes cannot be impliedly repealed was confirmed in H v Lord Advocate [2012] UKSC 24, in which the Supreme Court found unanimously that the Scotland Act 1998, due to its 'fundamental constitutional' status, is 'incapable of being altered otherwise than by an express enactment'.

-This principle can act as a partial restriction on executive power. If a government wishes to pass legislation inconsistent with the provisions of a constitutional statute, it has to confront the consequences. It can try to repeal the constitutional statute, but this must be made very clear in the statutory language used and may result in political resistance.

What is meant by common law constitutionalism, and how did Lord Toulson describe its role in Kennedy v The Charity Commission [2014] UKSC 20?

- Definition: Common law constitutionalism recognises that the common law is a repository of fundamental rights (e.g. freedom from arbitrary arrest, freedom of assembly, right to protest).

- Key point: Protection of rights is not solely dependent on statute; courts have long developed rights through common law.

- Lord Toulson’s view (Kennedy case):

- Human rights and public law have evolved through common law over centuries.

- This process accelerated after WWII due to the expansion of state and administrative power.

- Courts adapted the common law to meet modern needs.

- The Human Rights Act 1998 did not replace or “ossify” the common law; it remains a living source of rights.

What happened in the case of Entick v Carrington?

anti-gov pamphlets, gov raid his house and seize all the pamphlets, Entick brings case saying raid was not lawful/property rights not followed, court found the warrant was unlawful and so the raid was unlawful, there was no existing precedent allowing the raid to occur

What does ultra vires mean?

acted outside powers granted by parliament and so actions are unlawful

Why is retrospective legislation seen to be contrary to rule of law principles?

-It is important in a ROL society for the law to be clear and predictable, so that citizens and businesses know what they can and cannot do, lawfully. If the ‘rules’ are changed after the event, then this creates uncertainty and unfairness.

What is the significance of the phrase ‘reasonable suspicion’, very often used in criminal justice statutes in relation to arrest powers in particular?

-This phrase is important as it requires an objective standard to be used as a basis for depriving an individual of their liberty, a very fundamental right. It means that there is a need for some tangible evidence linking a person to a specific offence (sufficient to satisfy a reasonable person, ie the court), before they can be arrested. Without this arrest can be carried out arbitrarily.

-prevents arbitrary arrests/power

-Rossminster, O’hara (IRA suspect arrested)

*****important case in public law: Liversidge - home secretary had power to detain anyone if they were deemed to be of ‘hostile origin or association’, power came from defence regulations, during WW2, internment (detained without conviction or trial) - ‘reasonable cause to believe’ - HOL says there was no objective requirement, only need subjective belief - Lord Atkin disagreed says the majority judges was ‘more executive minded than the executive’, ‘reasonable’ means u need objective evidence (Atkins view) - evidence needs to be enough to justify suspicion (normal approach)

Is the principle of equality before the law always upheld in practice in the UK legal system? Give some examples where it might not be.

-In most senses it is, but not universally. For instance, the monarch has certain legal privileges (crown immunity), particularly in terms of the criminal law. MPs and Lords also enjoy parliamentary privilege, i.e. immunity from defamation law (in relation to proceedings within Parliament) - article 9 of Bill of Rights, anyone involved in proceedings within parliament(e.g. u go in front off a select committee). Diplomats too enjoy criminal immunity in their host country.

-case: Gillik - stop+search powers - under terrorism act - mostly EM targeted

If legislation has been passed which appears to permit basic rights to be restricted, in what way are the courts able to interpret this legislation in the interests of the rule of law?

-The courts can operate a presumption in this situation. If the words of the statute do not make it crystal clear that Parliament did intend that a right could be restricted, the courts will presume this was not Parliament’s intention and therefore attempt to preserve that right