The Rule of Law
After the lecture:
research Belfast Detainee Case & proceedings of Parliament
What is the Rule of Law?
the idea that the legal systems has a special status - superseding politics
a key principle is no one is above the law
it exists to ensure public (state) power is exercised within its legal limits
i.e. a safety net
helps prevent inner conflict, i.e. Civil War
The Origins of the Rule of Law
the Rule of Law has ancient origins
“It is preferable that law should rule rather than any single one of the citizens“ - Aristotle
Courts & The Rule of Law
courts play a key role in upholding the Rule of Law
this is why the judiciary is independent from other state bodies
Who is in Charge?
in the English Common Law System, Parliament is the sovereign power
the Rule of Law keeps powerful political personalities in check to maintain Parliament’s power
if the state institutions can’t agree then Parliament will be “reset“ (General Election)
What Makes a Good Rule of Law System?
governments have the amount of power the people say they can have
Rule of Law doesn‘t change during emergencies (to ensure equal administering of the law)
What Happens When Those in Power Misuse Their Power?
the Rule of Law will be enacted
courts are used to settle disputes
Interpretations of the Rule of Law
scholars stratify the rule of law in different ways
Bradley, Ewing and Knight identify 3 elements of the rule of law worth following
law and order are better than anarchy
there should be government according to law
the rule of law is broad doctrine - affecting new makers of law
The Law as a Political Ideal/Theory
The Formal View of the Rule of Law
concerned with the form the rule of law takes
i.e. once a law has been passed in the constitutional manner, it should have certain characteristics
J. Raz, a major advocate for this view outlined these characteristics
these characteristics allow the law to guide people, allowing them to plan their lives
Raz’s Characteristics of Law
prospective: should focus on the future rather than punishing past offences
open: individuals should be able to access the law
clear: law should be understandable
stable: laws shouldn’t change too often
The Rule of Law as a Principle
Barnett refers to the Rule of Law as a ‘procedural device‘; controlling & limiting governmental power
any action state officials take against individual should have a legal basis
Bradley, Ewing & Knight refer to this as the ‘principle of legality‘
The Rule of Law as a Procedural Mechanism
applying the principle of legality practically means that the government and its officials must act under the law
e.g. the European Convention of Human Rights state an arrested person must understand the grounds of which they are being arrested and detained by the state
this makes officers accountable for their actions - they have to have a legal basis for interfering with individual freedoms
Limitations of Procedural Mechanisms
using the rule of law strictly as a procedural mechanism doesn’t guarantee individual protections
the constitution provides state officials a wide breath when it comes to powers of arrest and detention
these powers can be used at will and to the obvious detriment of legal rights
if these powers have a legal basis these actions would be classed as lawful
to avoid this the rule of law should also include content which evaluates laws impact on human rights and other fundamental principles
The Rule of Law as a Substantive Concept
interprets the rule of law through a moral lens
the substantive view believes laws should embody and respect fundamental values (e.g. human rights)
Limitation of the Rule of Law as a Substantive Concept
the principles which underpin the rule of law as a substantive concept aren’t universally agreed upon
this makes this view of the Rule of Law subjective; requiring a personal conception of human rights
The Rule of Law as the Antithesis of Anarchy & Chaos
the Rule of Law requires an ordered state (functioning legal system and independent courts)
this allows disputes to be resolved peacefully and consensually rather than through armed force
a large part of this is the judiciary’s independence - judge must be impartial from the government officials
The Rule of Law in International Terms
the state should protect human rights not undermine them
if these rights are undermined, individual should have access to legal recourse to challenge it
The Rule of Law & the European Convention on Human Rights
in its preamble, the Convention mentions the Rule of Law being part of the common heritage
most rights in the Convention are conditional rather than absolute (e.g. freedom of expression)
these rights can be legitimately interfered with by the state for specified or limited purposes
The Rule of Law & the EU
the 1997 Treaty of Amsterdam establishes it is founded on respect for democracy, human rights and the rule of law
EU Law, the Court of Justice and the EU uses the principle of legal certainty which is based on the rule of law
The Rule of Law in the British Constitution
the rule of law is a central aspect of the British Constitution
it performs the ‘disabling function‘ the Bill of Rights plays in written constitutions (Jowell & O’Cinneide)
Bill of Rights = stops Parliament and government form abusing their powers
Dicey & the Rule of Law
argued the British Constitution was based upon the Rule of Law and Parliamentary Sovereignty
Dicey explained the Rule of Law in 3 aspects:
predominance of legal spirit (1st aspect): individuals should only be punished for distinct breaches of law
equality of law (2nd aspect): all individuals are subject to the law and are punished equally
supremacy of law (3rd aspect): the principles of the Constitution are the result of ordinary law
Elements of Dicey’s First Aspect
Dicey stated that: “no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach in law “
punishment due to breach of law: punishment should only occur due to a clear violation of the law
predominance of regular law: regular law should take predominance over arbitrary powers
Critique of Dicey’s First Aspect (Element 1)
Remand
under the Criminal Bail Act 1976 an unconvicted but accused person can be remanded in custody whilst they await trail
the detention powers would have to have reasonable belief the accused would abscond, commit another offence or interfere with witnesses
however, if the accused is found not guilty they would have suffered in body while being remanded
no compensation is given awarded for this detention
Search Powers
s1 of the Police & Criminal Evidence Act allows police officers to stop and search a person/vehicle with reasonable suspicion
officers may detain individuals for the purposes of this search
however if no prohibited articles are found the detainee has suffered in body (without violation the law)
Indefinite Detention of Suspected Terrorists
the Anti-Terrorism Act, Crime & Security allows foreign nationals suspected of terrorism to be indefinitely detained
these detainees can’t be charged as it could compromise the intelligence services who gathered
these individuals also can’t be deported due to the Article 3 (the state can’t deport an individual to a country where there is risk of torture/inhumane/degrading treatment)
these individuals can leave the UK for a country that will accept them
Critique of Dicey’s First Aspect (Element 2)
though some laws are relatively precise, there are also some that give the executive exceptionally wide powers
under the rule of parliamentary sovereignty, parliament can pass any law they want
Advantages of State Discretion
it can be used to mitigate the rigidity and harshness of the law
discretion is a necessary and unavoidable tool
e.g. courts and sentencing
The Control of Discretion
the unregulated use of discretionary power could be tantamount to arbitrary power
regulation can be achieved through judicial review, e.g. a statute may confer discretionary power onto a minister to:
‘act as they think fit‘/’act when it appears to be necessary’
‘pass regulations as they think fit‘, in order to achieve a particular public purpose
The Control of Discretion & Legal Limits
though this power is given its assumed the minister will exercise their power
legally
rationally
procedurally fair manner
consistent with the rights set out in the European Convention
Critique of Dicey’s Second Aspect
The Rule of Law & Judicial Review
it could be argued that the UK has developed its own separate form of administrative law
judicial review proceedings (in which the courts supervise the aspects of the executive) have features which are not present in the ordinary court system
in this way the state and its offices are not being treated the same as ordinary individuals
Tribunals
many tribunal disputes are resolved not through ordinary courts but through special tribunal courts
Exceptions to Principles of Immunity
e.g. art 9 of the Bill of Rights states that the freedom of speech, debates or proceeding should not be questioned in court
the rationale behind this immunity is to let parliamentarians perform their function without fear of litigation
this immunity is regulated by Parliament itself so if a member abuses this immunity they will be investigated and if need be punished
Special Features of Judicial Review Proceedings
claimants must seek permission to apply for judicial review (it’s not a right)
claimants must act promptly and no later than 3 months (6 years for tort, 3 for personal injuries)
claims must be made against a public body and concern a public law issue
the remedies the courts provide are discretionary
review proceedings are heard before specialist judges that apply special public laws
Critique of Third Aspect
Parliament can simply override the protection provided by the judges by passing legislation that authorises interference with personal freedoms
in contrasts, in codified constitution with a Bill of Rights all things would be rendered equally and morally unconstitutional by Supreme Court
to Dicey the Parliament is elected by the people and therefore answerable to them - this prevents despotic laws being passed
however as these laws often affect unpopular sections of society (e.g. prisoners, terrorists etc.) they may actually be popular with the public at large
The Role of UK Courts & The Rule of Law
The Rule of Law as a Basis for the Control of de facto Powers
it is not the constitutional function of the judiciary to confer onto the executive
if such powers are needed then Parliament would have to pass new legislation
Judicial Deference
the judiciary have (historically) taken a ‘hands-off‘ approach in order to avoid infringing on the principle of separation of powers
this in turn gives individuals little legal protection from the exercise of state power
The Rule of Law & the Defence of Fundamental Constitutional Principles
Retrospective Legislation
Parliament should never knowingly pass retrospective criminal law legislate contrary to international law
Principle of Legality
this prevents legislative interference with the rights/freedoms of individuals unless this is expressively provided with specific words
The Presumption of Innocence
the presumption of innocence (i.e. the burden of proof) is a key constitutional principle which underpins the Rule of Law
R v Chaytor and others (Appellants) [2010] UKSC 53
3 MPs faced criminal charges relating to fraudulent claims for expenses
the Supreme Court was ask to determine whether prosecution was lawful or if parliamentary privilege prevented the cases being brought
the Article 9 of the Bill of Rights provides immunity from legal action regarding “proceedings of parliament“
the court decide the bill refers to freedom of speech and debate
scrutiny by the court of expenses claims wouldn’t limit freedom of speech or debate; it would only limit dishonest claims
Parliamentary Privelege
came about due to Parliament’s new shaky power
insures against (historical) tyranny from monarchs
illustrates the rule of law (monarch’s also have limits on their powers)