Rule of Law - Lecture 10

Lord Bingham’s definition of Rule of Law

“should be bound by and entitled to the benefit of laws publicly made […] publicly administered in the courts”

Mcwhinney on the origin on the rule of law

The rule of law arose from the “constitutional battles of the seventeeth century.”

Which Edward Cooke’s cases are pillar of common law conception of rule of law?

• Case of Prohibitions

• Case of Proclamation

What is the ‘thin’ conception of the rule of law?

This means not using ‘must’, excluding human rights, international law and democracy as it conflates rule of law with justice

What is the ‘thick’ conception of the rule of law?

This means including notions such as democracy, access to justice and separation of powers into rule of law

What are the 3 aspects of Dicey’s conception of Rule of Law

1. Absence of arbitrary power on the part of the Government

2. Every man is subject to ordinary law administered by an ordinary tribunal

3. General rules of constitutional law are results of ordinary law of the land which has been applied for centuries

What are the 8 features of the rule of law according to Lord Bingham? - simplified

1. Law must be accessible, intelligible, clear and predictable

2. Questions of legal right will be resolved by application

3. The law will apply equally to all

4. Law must have protection of fundamental human rights

5. Means must be provided for resolving, without cost or delay

6. Ministers must exercise powers reasonably in good faith without exceeding limits

7. Judiciary procedures provided by the state should be fair

8. State must comply with international law

Entick v Carrington - Lord Bingham’s first component of rule of law (law must be predictable, intelligble, clear and predictable)

Context → E was very critical of the government and the Secretary of State (SS) ordered that his home be trespassed and to steal evidence.

Outcome → The court concluded that the SS’s word was not enough to warrant an action and nor is his power justified. The court stated “it is law, it will be found in our books […] no such excuse can be found […] the silence of the books is an authority against the defendant”

Joseph Raz on Lord Bingham’s first component of rule of law

‘all laws should be prospective, open and clear’

R(Purdy) v DPP - Lord Bingham’s first component of rule of law

Context → A lady wished to commit assisted suicide with her husband accompaanying her in the act and there was a question, whether the husband would be criminally liable for committing. The Director of Public Prosecutions refused to publish details of a policy indicating how and when prosecutorial discretion might be exercised to prosecute those aiding and abetting others to commit suicide, including by assisting them to travel to euthanasia clinics abroad.

Outcome → The law or rule in question was sufficiently accessible to the individual affected and sufficiently precise to enable him to understand its scope and foresee the consequences of his actions so that he could regulate his conduct without breaking the law. The Director has a duty to publish such a policy.

Liversidge v Anderson - Lord Bingham’s second component of rule of law

Context → Question as to the reasonableness of the decision of the the secretary of state to detain someone on national security grounds and whether it was reviewable

Outcome → A court of law cannot inquire whether in fact the Secretary of State had reasonable grounds for his belief. The matter is one for the executive discretion of the Secretary of State.

IMPORTANT → The case was wrongly decided

Lord Atkin’s commentary in Liversidge v Anderson

Lord Atkin stated ‘the clash of arms, the laws are not silent’

Commissioners of Customs and Excise v Cure and Deeley - Lord Bingham’s second component of rule of law

Context → Concerns on taxing practises

Outcome → The Court concluded that the Commissioners can “make regulations providing for any matter for which provision appears to them to be necessary.”

IMPORTANT → The case of Commissioners of Customs and Excise v Cure and Deeley was WRONGLY decided. There is NO such thing the ‘unfettered discretion’ principle

R (Evans) v Regina (Evans) v Attorney General - Lord Bingham’s second component of the rule of law

Context → Prince Charles had a habit of telling the Executive what policies he did or didn’t like and a guardian journalist asked for disclosure under the Public Information Act to diclose the papers and the Government refused to disclose it, hence the journalist took it to court.

Outcome → The Court concluded that it was fundamental to the rule of law that decisions of the Executive are reviewable by the Court.

M v Home Office - Lord Bingham’s third component of rule of law

Context → M had an unsuccessful asylum application, the judge order an interim injunction to suspend deportation since M applied on fresh grounds. The SS deported M anyway, on the basis that the judge has no jurisdiction make an injunction and the judge ordered the Home Office to procure M back.

Outcome → The SS could be subject to injunctions before the Crown Proceedings Act 1947 and s.21 of that Act does not prevent an injunction where one could be given before the Act.

Somerset v Stewart - Lord Bingham’s fourth component of rule of law

Context and outcome → Outlawing slavery and it was stated that it was “so odious, that nothing can be suffered to support it, but positive law”

Ex P Simms - Lord Bingham’s fourth component of rule of law

• “In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.”

• “But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words.”

Lord Hermer’s commentary on Lord Bingham’s fourth component of rule of law

“including the idea that the law must afford adequate protection of fundamental human rights […] are an essential element of the rule of law and a stable democratic culture”

R (on the application of UNISON) v Lord Chancellor - Lord Bingham’s fifth component of rule of law

Context → Fees were increased for the Employment Tribunal, this led to declines in cases, but also raised concerns of access to justice.

Outcome → The constitutional right of access to justice was inherent in the rule of law and ensured that rights created by Parliament and interpreted by courts and tribunals were applied and enforced. The court concluded that clearest wording is needed to get rid of these rights.

Ex p Doody - Lord Bingham’s seventh component of rule of law

Context → The respondants were convicted for murder and sentenced to life imprisonment, they sought to obtain information regarding their sentences through applications for judicial review and the secretary of state declined.

There is no general common law duty to give reasons, but the courts are increasingly willing to find that reasons should be given, particularly where liberty is at stake according to Doody.

what is an example of the 8th requirement of Lord Bingham’s components of rule of law?

Internal Migration Act 2023 and Safety of Rwanda Act 2024 are examples of breaching international law

What are ouster clauses?

Ouster clauses are provisions that purport to exclude judicial review of a determination.

what are the leading cases on ouster clauses?

• privacy international

• oceania

Privacy International on Ouster Clauses, principle of legality and rule of law

Context → Privacy International (“PI”) had brought a challenge before the IPT against computer surveillance activities carried out by GCHQ. IPT decided that such activities had been a lawful use of its powers pursuant to s.5 of the Intelligence Services Act 1994.

Outcome → The Supreme Court said that even if a law tries to prevent the courts from reviewing the decisions of a special tribunal (the IPT), the courts can still review those decisions if they are based on a mistake of law. 

Justice Saini in Oceania - Ouster clauses and legality

“The common law supervisory jurisdiction of the High Court enjoys no immunity from these principles when clear legislative language is used, and Parliament has expressly confronted the issue of exclusion of judicial review, as was the case with section 11A”

Evans case in relation to Rule of Law and Parliamentary Sovereignty

In the Evans case, Lords Neuberger, Kerr and Reed are often argued to have refused to apply the statute, so strong was their application of the principle of legality. The remainder of the court found that the executive override was capable of broader application than those three judges held.

Allan’s commentary on the relationship between Rule of Law and Parliamentary Sovereignty

Allan takes the view that the rule of law principle enjoys a superior normative position in its relationship with the doctrine of Parliamentary Sovereignty.