LAWS206 W11
L1
Proposition 3: The Rule of Law as a Normative Concept for the Guidance of Public Action
The third proposition posits that the rule of law serves as a normative concept designed to guide public action.
This perspective is rooted in the natural lawyers’ conception of the rule of law.
Legal positivists offer a severe critique of this proposition, arguing that treating the rule of law as a normative concept for guiding public action injects "intolerable uncertainty" into the legal system.
Positivists claim that giving the rule of law substantive meaning (making it normative) creates untoward and unacceptable uncertainty.
The counter-argument to the positivist critique is that claims to absolute or a priori certainty are misplaced and misconceive both the concept of the rule of law and the nature of law itself.
It is argued that neither the rule of law nor law in general is ever absolutely certain.
Statutory References and Definitional Challenges
Lord Bingham (referenced in the transcript as Lord Bingen) addressed the issue of certainty regarding the Constitutional Reform Act of .
Section of the Constitutional Reform Act of specifically references the rule of law, stating that the Act does not adversely affect the existing principle of the rule of law.
Lord Bingen noted that the rule of law is an inherently ambiguous concept.
He rejected the idea that the concept was so clear or self-evident that it required no definition, yet he argued that it should be defined by the courts rather than Parliament.
Due to the difficulty of formulating a general definition of universal application, the UK Parliament made no attempt to provide a statutory definition.
Similar approaches are found in New Zealand statutes:
The Lawyers and Conveyancers Act of .
The Senior Courts Act of .
Both New Zealand acts make express reference to the rule of law as a concept but do not seek to define what it means.
Contextualization is preferred: it is better to leave the definitional task to the courts to define the rule of law when actual factual situations arise.
The Differentiation Between Determinate and Indeterminate Laws
The transcript contrasts two types of statutory offenses to illustrate that law is not always absolutely certain or beyond dispute:
The speed limit: This is considered absolutely certain in both meaning and application. Exceeding the limit results in a statutory offense, and modern technology can calibrate the exact speed of vehicles to remove uncertainty.
Section of the Summary Offences Act of : This section reenacts the offense of offensive and disorderly behavior, which has existed for over years. Unlike the speed limit, "offensive behavior" is subjectively defined and lacks inherent certainty.
An example provided involves students living on Maidstone Road who held a party at in the morning on a Sunday (the Sabbath). A neighbor, identifying as a law-abiding citizen on her day of worship, took great offense, whereas the students did not. This demonstrates how the definition of "offensive" depends on the subjective viewpoint of the beholder.
Case Study: Morse and the Police ()
Case Reference: Morse and the Police (), in Law Reports at page .
Facts: Ms. Morse, a professional protester, attended an Anzac Day ceremony at a cenotaph near Parliament Buildings. While the ceremony was in progress, she set fire to a New Zealand flag on the grounds of Victoria University Law faculty and used drums and horns to draw attention to the burning flag.
History: She was convicted of offensive behavior in the High Court and Court of Appeal.
Supreme Court Ruling: The Supreme Court set aside the conviction, acknowledging that the offense is inherently uncertain and subjectively defined.
The Court sought to provide an objective foundation by redefining the offense as a public order offense.
The Court read into Section a requirement not explicitly stated by Parliament: for behavior to be "offensive," it must conduce toward public disorder or cause others present to react in a way that breaches public order. Since this element was not made out, the offense was not proven.
This case serves as evidence against the legal positivist claim of inherent legal certainty and demonstrates that superior courts allay legal uncertainties by providing clarity where it was previously lacking.
The Rule of Law in the Judicial Context: A Default Reaction to Injustice
In the courts, the rule of law often operates as a "default reaction to injustice."
Courts appeal to the rule of law for guidance particularly when there is no applicable principle of law directly in point for a matter before them.
Constitutional norms often remain partially indeterminate or obscured until a specific situation of injustice arises, forcing courts to address what the rule of law requires in that specific factual setting.
These factual situations materialize fundamental principles (such as liberty and freedom) into tangible, concrete forms.
Case Study: Anufoiva (2003)
Case Name: Anufoiva (also referred to as Ms. Annie Fweaver or Annual Fever), a decision of the UK House of Lords.
Leading Judgment: Lord Stain.
Legal Method: This decision exemplified "rhetorical legal method" by using the rule of law as a touchstone for justice.
Facts: Periodic income support for an applicant for refugee status in the UK ceased without explanation. The officials purposefully withheld the information that an adverse decision had been made.
Ruling: Although Lord Stain acknowledged the litigant was not particularly deserving or prepossessing, he stated that fundamental principles must be upheld. The rule of law requires extending judicial protection even to the undeserving.
Outcome: The appellant was entitled to backdated income support for the period between the cessation of payments and the time she received formal notice.
Conclusion: An uncommunicated adverse decision is, in law, "no decision at all." The rule of law requires that parties be aware of decisions affecting them so they may challenge them.
Case Study: Cornerhouse Research ()
Facts: This UK case involved allegations of bribes and kickbacks given by UK arms manufacturers to Saudi Arabian officials to secure contracts. The Director of the Serious Fraud Office (SFO) began an investigation.
The Threats: Saudi officials objected to the investigation and made covert threats. Consequently, the Director of the SFO pulled (discontinued) the investigation.
Divisional Court (First Instance): Held that law enforcement agencies must maintain independence and repel improper threats or interference. The court found that surrendering to pressure undermines the rule of law. The Director was found to have abdicated his statutory function.
House of Lords (Appeal): Overturned the Divisional Court decision using formalist legal reasoning.
Difference in Framing:
The Divisional Court asked: "Was the director's decision in breach of the rule of law?" (Answer: Yes).
The House of Lords asked: "Was the director's decision one he was lawfully entitled to make?" (Answer: Yes, it was within the scope of his lawful powers).
Elements of Judgment: The case illustrates that public law decision-making is characterized by judgment, choice, and discretion, contradicting positivist claims of absolute certainty.
Proposition 4: The Rule of Law as a Supranational Concept
The rule of law transcends national borders and is upheld by all modern Western democracies, including both civil law and common law jurisdictions.
This development is linked to the international human rights movement post-World War II (), which sought effective regulation of "rogue states."
Key International Instruments:
The United Nations was established in to replace the League of Nations.
The Universal Declaration of Human Rights (): This instrument kick-started the movement. Its preamble explicitly states that "human rights should be protected by the rule of law."
The European Convention on Human Rights (): Enshrined a similar catalogue of rights.
International Covenant on Civil and Political Rights (ICCPR): Adopted in , enforceable from .
National Implementation:
UK Human Rights Act () made the Convention rights justiciable in national courts.
The Canadian Charter of Rights and Freedoms and the New Zealand Bill of Rights Act are premised on the ICCPR.
The international human rights movement has injected "institutional morality" into the rule of law.
Transnational Rights Dialogue and the Role of Modern Technology
Rights discourse has descended vertically from the international order into national bills of rights and is now traded horizontally between national legal systems.
Many jurisdictions (Hong Kong, Canada, New Zealand, UK, Ireland, South Africa, parts of Australia) have internalized and enshrined international human rights into local law.
Impact of the Internet: Modern technology facilitates this transnational dialogue with unprecedented speed and efficiency.
Historically, a House of Lords decision might take to months to reach New Zealand by ship. Today, decisions are available on court websites the following day.
Technology promotes "comparative rights jurisprudence" and the "cross-pollination" of legal ideas, as jurisdictions borrow from one another to fine-tune their own systems.
These conversations quicken the reach of the rule of law and entrench its values in liberal democratic theory.
Case Study: Bagent’s Case ()
Case Name: Bagent's case (), a leading Court of Appeal decision in New Zealand regarding the Bill of Rights Act.
Ruling: The Court held that a person may seek public law compensation (referred to as "Bagent damages") against the state for a breach of the Bill of Rights if no other remedy is available.
Judicial Reasoning: Lord Cook described "ransacking" international jurisdictions for precedent. The Court of Appeal discussed human rights cases from separate jurisdictions.
Context: This was a controversial development because the specific remedies clause had been omitted from the Bill of Rights during its enactment. However, the court proceeded to ensure there was a remedy for every right.
Proposition 5: The Rule of Law as the Foundational Norm and Ultimate Principle of Legality
The rule of law is the foundational norm for Western political systems.
It is currently poised to challenge—or perhaps has already challenged—Parliamentary Sovereignty as the ultimate principle of Westminster legality.
Lord Stain, a champion of human rights in the House of Lords from the late to the mid-, argued in extrajudicial writings that the rule of law might "trump" parliamentary supremacy in exceptional cases.
Potential Triggers for Judicial Intervention:
A government attempting to extend the life of Parliament arbitrarily (e.g., passing a statute to extend a term by years without an election).
A government attempting to tamper with the role of the courts by enacting a "privative clause" (a direction to the courts not to entertain judicial reviews).
A government attempting to tamper with the rule of law itself.
Constitutional Duty: It is the court's constitutional duty to ensure government according to law (Dicey's first meaning of the rule of law).
The Dual Reinforcing Ideals of the Rule of Law
The concept of the rule of law serves two mutually reinforcing ideals, tracing back to the writings of John Locke:
The imperative to maintain civil society: Moving away from the "state of nature" where there is no law, to create organized state power and protection of property.
The need to vouchsafe basic rights: Ensuring liberal democratic rights and freedoms where governments hold power in trust and reserve a large sphere of liberty for the individual.
These two requisites—the formation of civil society and the protection of individual freedom—remain the core products of the rule of law.
L2
The Rule of Law as the Foundational Norm
Definition and Status: The Rule of Law is characterized as the fifth proposition and the foundational norm of Western political systems. It serves as the ultimate principle of legality.
The Transition of Sovereignty: There is a suggested transition occurring where the Rule of Law is poised to challenge Parliamentary Supremacy (or Parliamentary Sovereignty) as the foundational norm.
Lord Steyn’s Perspective: Johann Stein (Lord Steyn) posited that if a conflict ("if ever push came to shove") arose where Parliament attempted to manipulate fundamental constitutional pillars—such as the right of access to the courts or fixed parliamentary terms—the Rule of Law would likely "trump" parliamentary supremacy.
Historical vs. Idealistic Conceptions:
Parliamentary sovereignty is described as an historical conception with roots in the relative antiquity of , reinforced by -century writers like Dicey and Austin.
In contrast, the high ideals of the Rule of Law are viewed as more pressing for modern human coexistence and happiness.
The Unresolved Tension: A core conflict exists between the absolute power of a sovereign Parliament and the guarantee of human rights. If Parliament is truly supreme, it can theoretically override the most cherished rights with a "flourish of its legislative pen," raising the question of whether rights can ever be properly secured in such a system.
Common Law Constitutionalism
Overview: Common law constitutionalism is the engineering mechanism through which the courts have begun to rein in the reach of Parliament and its legislation.
Philosophical Foundations:
Civil Society and the Social Contract: The concept relies on the notion of a social contract, tracing back to the writings of John Locke.
Protection vs. State of Nature: Civil society is the prerequisite for the protection of person and property. Without organized state power to vouchsafe these basic rights, the "state of nature" would prevail, where "anything goes."
Human Coexistence: Philosophers like Locke and Hobbes discussed men entering into covenants to surrender certain freedoms in exchange for specific protections. Social stability and rights are deemed vital to human happiness.
Judicial Responses to Parliamentary Power: The common law courts have responded to the tension between sovereignty and rights through three principal heads:
The Principle of Legality.
The Redefinition of the Doctrine of Implied Repeal.
The Reading Down of Privative (Ouster) Clauses.
The Principle of Legality
Definition: It is considered the most far-reaching development in modern common law method. It is a natural presumption designed to protect basic rights from "casual erosion" via parliamentary action.
The Core Maxim: Fundamental rights cannot be overridden by general or ambiguous statutory words.
Presumption of Interpretation: In the absence of express words or a necessary implication, the courts presume that Parliament does not intend to override fundamental rights, even if a literal reading of the words suggests otherwise.
Judicial Authority (Ex parte Sims):
Lord Hoffman’s Judgment: He acknowledged that parliamentary sovereignty theoretically allows Parliament to legislate contrary to human rights principles.
The Political Cost: However, for Parliament to do so, it must "squarely confront what it is doing and accept the political cost." It must use dedicated, express language so the intent does not pass unnoticed in the democratic process.
Preservation of Rights: In the absence of such clarity, courts will read the general words subject to the preserved rights of the individual.
Historical Development: Although the term "principle of legality" was coined around the year , specific presumptions date back to the , including:
Parliament does not intend to abrogate the right of access to the courts.
Parliament does not intend for legislation to operate retrospectively.
Parliament does not intend to override the common law rights of citizens.
Application in New Zealand: New Zealand courts have adopted this principle to read down legislation that would otherwise override rights if applied literally.
The Requirement of Necessary Implication
Threshold of Proof: A "necessary implication" requires a significantly higher bar than a "reasonable implication."
Case Study: Morgan v Greene ():
The UK House of Lords established that a necessary implication follows as a matter of logical necessity/logic, not just interpretation.
It is not enough to show that it would have been "sensible" or "reasonable" for Parliament to include a provision. It must be clear that the express language of the statute shows the statute must have included it.
Court of Appeal Perspective (Lord Justice Buxton): He emphasized that a necessary implication is "implication in the true sense," meaning it must follow by logical necessity rather than by an assumption of policy intentions or surrounding circumstances.
New Zealand Supreme Court (Pointer, ):
The case concerned extraterritoriality (legislation applying beyond New Zealand's territory).
The court held that a necessary implication must "flow as a matter of inevitable logic from the express statutory language."
Summary Summary of Power Limits: Parliament cannot abrogate rights by "accident, stealth, or a side wind." If the intent is not explicit, the courts will apply a strained meaning to the statute to keep the basic right intact.
The Doctrine of Implied Repeal and Constitutional Statutes
Traditional Doctrine: Pro tanto implied repeal is the "handmaiden of parliamentary sovereignty." It is based on the concept of continuing sovereignty—that no earlier Parliament can bind a later one. Thus, if a later statute is inconsistent with an earlier one, the later statute prevails to the extent of the inconsistency.
The Thoburn Redefinition (Thoburn v Sunderland City Council):
Lord Justice Laws introduced a hierarchy of legal norms into the common law.
He distinguished between "ordinary statutes," which are subject to implied repeal, and "constitutional statutes," which are immune to implied repeal.
Constitutional statutes can only be repealed through express repeal.
Examples of Constitutional Statutes:
The Bill of Rights .
The Act of Settlement (establishing judicial independence).
The European Communities Act (UK).
Human Rights statutes (e.g., The Bill of Rights Act).
New Zealand Context (Taylor v Attorney General, ):
Chief Justice Elias applied the Thoburn methodology (without explicitly naming the case) to the Bill of Rights Act (BORA).
The Crown's Solicitor General argued that inconsistency between BORA and a later statute resulted in the implied repeal of BORA. The Chief Justice rejected this, declaring BORA a constitutional statute that cannot be repealed by a side wind.
This decision established the jurisdiction of Senior Courts to issue declarations of inconsistency under the Bill of Rights Act.
Affirmation in Fitzgerald (): The New Zealand Supreme Court explicitly affirmed that the Thoburn methodology represents the law in New Zealand.
Privative Clauses (Ouster Clauses)
Definition: A privative clause is a statutory direction from Parliament to the courts to "keep out" or surrender their historical constitutional function of declaring and upholding the law.
Anisminic v Foreign Compensation Commission ():
The Clause: "The determination by the Commission… shall not be called in question in any court of law."
Formalist Reasoning: The House of Lords focused on the word "determination." They argued that a "determination" only exists if the commission acts within the four corners of the statute (intra vires).
The Sleight of Hand: If the commission acted outside its powers (ultra vires), the resulting ruling was not a "determination" at all, and therefore was not protected by the clause. This effectively negated the clause's power.
Constitutional Rationale (Bulk Gas Users Group, ):
New Zealand's Court of Appeal moved toward a constitutional explanation, as discussed in paragraph of the legal text under "Constitutional Dimension of the Privative Clause."
The Presumption: The court held that a privative clause does not protect a decision involving an error of law that the decision-maker was not empowered to decide conclusively.
Courts erect a presumption that Parliament does not intend to allow decision-makers to conclusively determine the limits of their own jurisdiction.
Zaoui (): The President of the Court of Appeal affirmed that privative clauses must be interpreted restrictively so as not to oust the courts from their function of ensuring government according to law.
H v Attorney General ():
Justice O'Regan (Supreme Court) stated in paragraph that judges should be "slow to conclude" that an ouster clause precludes judicial review for unlawfulness.
Paragraph noted it has been settled law since Bulk Gas Users Group that such provisions do not prevent scrutiny based on errors of law.
Conclusion on Judicial Role: Through common law constitutionalism, courts "flex" their authority to ensure that government remains according to law, even in the face of explicit directions from Parliament to the contrary.
L3
COMMON LAW CONSTITUTIONALISM AND THE PROTECTION OF RIGHTS
Central Inquiry: The primary question addressed is whether fundamental rights can be guaranteed or effectively protected if Parliament possesses absolute power to legislate on any topic. This implies that fundamental rights could potentially be overridden by what the speaker calls a "flourish of the legislative pen."
The Judicial Response: Courts have responded to this challenge through three specific legal developments known collectively as Common Law Constitutionalism.
Historical Timeline: These developments began gaining significant traction around the turn of the century (approximately the year 2000) starting with cases like ex parte Sims.
THE THREE LIMBS OF COMMON LAW CONSTITUTIONALISM
Common law constitutionalism rests on three distinct legal limbs designed to limit the legislative reach of Parliament regarding fundamental rights:
The Principle of Legality: Focuses on the interpretation of general or ambiguous statutory language.
The Doctrine of Implied Repeal: Reined in to protect "constitutional statutes."
Privative Clauses: Courts have developed methods to effectively bypass or limit the effectiveness of clauses that seek to oust judicial jurisdiction.
THE PRINCIPLE OF LEGALITY
Fundamental Statement: As established in ex parte Sims (2000), fundamental rights cannot be overridden by general or ambiguous words.
Purpose: To protect basic rights from "casual erosion" through legislative enactments where Parliament uses broad language that, if applied literally, would abrogate protected rights.
The Presumption of Interpretation: Courts erect a strong, unyielding presumption that, in the absence of express words or "necessary intendment," Parliament did not intend to abrogate basic rights.
Displacing the Presumption: The presumption can only be displaced in two ways:
Express Statutory Words: Parliament expressly states that a provision overrides a specific right. Note: Parliament rarely does this because it attracts significant political and public attention.
Necessary Implication: A high threshold of interpretation where the abrogation of a right must follow as an "inevitable logic."
Threshold for Necessary Implication:
Standard: It must be a "logical necessity" rather than merely a "reasonable implication."
Morgan Grenfell (Court of Appeal): Lord Justice Buxton stated that a necessary implication must be an implication in the true sense of logical necessity.
Pointer (New Zealand Supreme Court, 2010): The NZ Supreme Court adopted the language from Morgan Grenfell, emphasizing that the implication must flow as a matter of "inevitable logic" from the express words used by Parliament.
THE DOCTRINE OF IMPLIED REPEAL AND CONSTITUTIONAL STATUTES
Traditional View: Ordinary statutes are subject to implied repeal; if a later statute is inconsistent with an earlier one, the later in time prevails (lex posterior derogat priori).
Thoburn v City of Sunderland (2003): Lord Justice Laws established that "constitutional statutes" are immune from implied repeal. If Parliament wishes to repeal or amend a constitutional statute "pro tanto", it must use express, dedicated language.
Taylor v Attorney-General (2018): Chief Justice Elias applied the Thoburn methodology in New Zealand, ruling that the New Zealand Bill of Rights Act (NZBORA) cannot be impliedly repealed by later legislation. She gave "short shrift" to the Solicitor General's argument that a later statute trenching on rights should prevail.
Fitzgerald v The Queen (2021): This case expressly approved and integrated the Thoburn methodology into New Zealand law.
PRIVATIVE CLAUSES AND JUDICIAL REVIEW
Definition: Privative clauses (or ouster clauses) are statutory provisions that seek to prevent the courts from reviewing the decisions of executive or public bodies.
Anisminic Ltd v Foreign Compensation Commission (1969): The House of Lords used formalist language to bypass a privative clause. They argued that the clause only protected "determinations." If a decision maker acted outside their statutory power (ultra vires), the resulting act was not a "determination" at all, and thus not protected from review. This "sleight of hand" effectively rendered the privative clause meaningless.
Bulk Gas Users Group v Attorney-General (1983): The Court of Appeal moved from formalist logic to a constitutional rationale. They established a presumption that when Parliament grants discretionary power to a decision maker, it does not intend to empower them to "conclusively determine the limits of those powers." The question of legal limits is always reserved for the courts.
Zaoui v Attorney-General: The President of the Court of Appeal stated that privative clauses must be strictly construed to give expression to the policy of the law.
H v New Zealand Post: The Supreme Court reiterated that judges should be slow to conclude that privative clauses are effective (Paragraphs 63 and 78).
Privacy International (2019): The UK Supreme Court stated that it is ultimately for the courts, not the legislature, to determine the limits set by the rule of law regarding the power to exclude judicial review. This is a self-referential assertion of judicial power.
FROM ABSOLUTISM TO CONTROLLED CONSTITUTIONALISM
The "It Takes Two to Tango" Metaphor: Legal meaning is not determined solely by Parliament's text but by the meaning assigned to it by the courts in a collaborative, constitutive exercise.
The Paradigm Shift: Jurisdictions like New Zealand, the UK, and Canada have moved from a jurisprudence of "constitutional absolutism" (absolute parliamentary sovereignty) to one of "controlled constitutionalism."
Principle of Legality as a Generic Umbrella: The principle of legality now serves as a generic umbrella presumption that encompasses various specific presumptions developed by the courts over time.
THE "IN EXTREMIS" RESERVE POWER OF THE COURTS
The Theoretical Question: Might courts go further than interpretation and actually strike down or "disapply" unconscionable legislation that attacks the fundamentals of democracy?
Disapplying vs. Striking Down:
Striking Down: Attributed to American jurisprudence (Marbury v Madison, 1803). The US Supreme Court can invalidate laws that contravene the Constitution or the Bill of Rights.
Disapplying: Preferred language in the Westminster tradition, originating from EU law cases like Factortame. The statute is not technically invalidated but is not applied in the specific context.
The Fox Hunting Case (Jackson v Attorney General, 2005): While upholding the Fox Hunting Act, the House of Lords issued powerful "speculative dicta":
Lord Hope of Craighead: Stated that parliamentary sovereignty is no longer absolute (if it ever was). He described sovereignty as an "empty principle" if it allowed Parliament to enact legislation so unconscionable that people would not recognize it as law.
Lord Steyn: Dismissed Dicey's traditional views as outmoded. He spoke of a "new hypothesis of constitutionalism" or a new standard of legality.
The Rule of Law: Lord Hope proclaimed the Rule of Law, enforced by the courts, as the "ultimate controlling factor" of the constitution (Paragraph 107).
Lady Hale (Baroness Hale of Richmond): Suggested that courts might even reject an attempt by Parliament to subvert the rule of law.
NATURE OF THE "IN EXTREMIS" POWER
Definition: "In extremis" refers to the last extremity or desperate circumstances.
A Power of Last Resort: This power remains partially obscured and has never been tested because a sufficiently "unconscionable" legislative act has not yet occurred.
Potential Triggers (Legislative Assaults on Democracy):
Unscrupulous attacks on the citizenry (e.g., denying freedom of religion to a specific group).
Virulent censorship laws violating freedom of speech.
Attacks on representative democracy (e.g., extending the life of Parliament from 3 to 10 years).
Attacks on the independence of the courts (e.g., ousting all judicial review of public decisions).
Lord Woolf of Barnes (1995): Reasoned that limits on Parliament exist to preserve the Rule of Law, though these limits are of "modest dimensions" that any democrat would accept.
QUESTIONS & DISCUSSION
Q: Were the three limbs of common law constitutionalism directly connected to the naturalist conception (the fifth proposition)?
A: Yes. The reaction of the common law courts in developing these methods (reading down legislation) is intended to preserve basic constitutional rights. The principle of legality and the protection of constitutional statutes give effect to a substantive naturalist conception of the Bill of Rights by treating basic rights as an inherent part of the rule of law.
Discussion on Strikeout Power: A student noted that the Supreme Court's strikeout power should be exercised as a last resort where there is no chance of success, but currently the government might be moving to close such things down. The speaker agreed this was a good example of the tension between judicial review and legislative action.