2. Rule of Law + EU Based Law
Rule of Law & Separation of Powers
Principles of Rule of Law:
1. Legal Certainty The law must be clear, accessible, not arbitrary, and must come from proper authority | 6. Courts Protect Constitution Using judicial review + precedent |
2. Personal Liberty Free to act unless prohibited by law | 7. Rights and Liability Based on Law Decisions must be based on rules, not discretion |
3. Due Process Right to fair, efficient trial | 8. Human Rights Protected Law must adequately protect an individual's human rights |
4. Equality Before the Law Everyone is equally subject to law | 9. Ministers Must Act Within Powers They cannot exceed statutory authority + must abide by the law like everyone else |
5. Independent Judiciary Courts are independent and free from political influence — Members of government can never be judges | 10. State Must Comply with International Law Treaties influence statutory interpretation |
Courts can only uphold the above against executive actions, not Parliamentary Acts
Separation of Powers Purpose:
Prevent abuse of power
Ensure accountability between all powers
While the courts may keep the government in check by performing judicial review on royal prerogatives, it may not question certain areas known as “non-justiciable” prerogatives (international treaties, armed forces, prerogative of mercy, and granting public honor)
EU Based Law
The UK is a signatory to the ECHR, which is part of international law = not automatically binding domestically
Breaches are handled by the European Court of Human Rights (ECtHR)
HRA 1998 makes the ECHR enforceable in UK courts so individuals can sue public authorities domestically in the UK instead of going to Strasbourg
Procedure for Human Rights Claims
Two types of cases:
State v State (rare)
Individual v State – Possible only after exhausting all UK court options
Claim must be brought within 4 months of the final UK decision; AND
The individual must be a direct victim and have suffered "significant disadvantage."
Admissibility is reviewed by a single judge – if admissible, it moves to a committee or a chamber of the ECtHR
Core rule: It is unlawful for any public authority (including hybrid authorities) to act in a way incompatible with ECHR rights
A hybrid public authority = not purely public or private but performs public functions (e.g. housing associations, private prisons)
Exceptions — A public authority is not acting unlawfully if:
It was compelled to act by primary legislation
The authority was enforcing incompatible legislation
Section 6(1) does not apply to Parliament – The HRA does not bind Westminster Parliament or activities inside Parliament; this protects parliamentary privilege and respects sovereignty
Victims can sue public authorities in UK courts through judicial review or direct claim → Must bring the claim within one year of judgement
Declaration of Incompatibility: Courts must interpret legislation compatibly “so far as possible” — if not possible:
for Primary Legislation → courts must issue a declaration of incompatibilty
for Secondary Legislation → can be quashed only if:
The parent primary act does not force incompatibility, otherwise court must issue declaration
If the incompatibility is required by the Act → declaration of incompatibility (s4)
Fast Track Remedial Order – Allows ministers to swiftly amend legislation following a declaration of incompatibility
ECHR Main Rights
Article 2 Right to Life ABSOLUTE | Prohibits the state from intentionally taking a life
Positive Duty (Osman Test) – state owes a duty if it:
State must also NOT deport someone where there is a real risk of death
Exceptions (high bar) to duty only if:
1. defence from unlawful violence 2. lawful arrest or preventing escape 3. quelling a riot or insurrection
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Article 3 Prohibition of Torture, Inhuman, or Degrading Treatment ABSOLUTE only if it crosses the severity threshold
| Includes positive duties to:
Definitions:
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Article 4 Prohibition of Slavery and Forced Labor
ABSOLUTE | Imposes a positive duty to:
This is an absolute right with minor exceptions:
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Article 5 Right to Liberty and Security of Person LIMITED | State must not arbitrarily detain a person
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Article 6 Right to Fair Trial
ABSOLUTE re fair trail LIMITED re being in public | Requires:
Positive Obligation: cannot remove someone to another country if there is a real risk of an unfair trial there |
Article 7 No Punishment without Law ABSOLUTE | Cannot be convicted for something that was not a crime at the time; OR No harsher penalties than those available at the time |
Article 8 Right to Private & Family Life
QUALIFIED | This is a very broad right that is qualified Interference must be prescribed by law for a legitimate aim:
Horizontal effect: this article can apply UNDER HRA between private parties (e.g. newspaper vs individual) |
Article 9 Freedom of Thought, Conscience, and Religion
QUALIFIED to manifest beliefs but absolute to hold them
| Manifestation includes:
Limitations – must meet legitimate aims:
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Article 10 Freedom of Expression QUALIFIED
| Includes protection of journalists — but does not protect:
Restrictions must be prescribed, necessary, proportionate, and for a legitimate aim |
Article 11 Freedom of Peaceful Assembly and Association QUALIFIED | Right to protest peacefully, join trade unions, form organizations
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Article 14 Prohibition of Discrimination | Rights must be enjoyed without discrimination based on sex, race, age, religion, etc.
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Categories of ECHR Rights
Absolute Rights
Right cannot be restricted or interfered with under any circumstances
No justification is permitted (except where the Article itself has explicit exceptions)
e.g. right to life, prohibition of torture, prohinition on slavery, and no punishment without law
Limited Rights
Rights that may be restricted only in specific, clearly defined circumstances
Limitations are built in the article itself
e.g. right to liberty and fair trial (public)
Qualified Rights
Rights which may be interfered with by the state, provided it can justify the interference and legal criteria are met.
e.g. right to private and family life, freedom of religion and expression, and right to assembly
A qualified-rights interference is lawful only when all four conditions in the table below are met.
Requirement | Explanation | ||
a. Prescribed by law | The restriction must be based on UK domestic law that is: clear, accesible, and predictable. Case Example: Malone v UK (1984): Police tapped Malone’s phone based on internal guidance not available to the public. They were held to breach Article 8 – not prescribed by law. | ||
b. Legitimate aim | Must pursue one of the aims listed in the Article – includes:
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c. Necessary in a democratic society | The interference must have been for a pressing social need, e.g. preventing violence, terrorism, and riots | ||
d. Proportionality | Interference must be proportionate to the aim pursued
4 stage proportionality test (Bank Mellat v HM Treasury 2013):
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Derogation: temporary suspension of certain rights in times of emergency.
Derogation must be performed only to the extent strictly necessary
It cannot be inconsistent with obligations under international law
Must be reported to the secretary general of the council of Europe
Most absolute rights cannot be derogated from (right to life except in war, torture or inhuman/degrading treatment, prohibition of slavery, punishment without law)
Reservation: condition upon joining the Convention where the state opts not to be bound by certain provisions
ASSIMILATED LAW (POST-BREXIT)
EU Regulations had direct effect on the UK until the European Union Act 2018 (Withdrawal Act) repealed the 1972 European Communities Act
The UK formally left on 31 January 2020, triggering the start of the Transition Period (also called the Implementation Period – ran from 31Jan2020 to 31Dec2020)
During the transition period, EU law continued to apply in the UK - unless otherwise stated in the Withdrawal Act:
EU regulations still had direct effect and supremacy
UK courts were still bound to follow EU regulations
EU Primary Legislation | EU Secondary Legislation |
*don’t confuse with ECHR |
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Post-Brexit
🚫 What Is No Longer Applicable?
CJEU (European Court of Justice) has no jurisdiction in the UK
UK courts are not bound by new EU laws or future CJEU judgments
Types of Assimilated Law
EU derived domestic secondary legislation
These are UK Statutory Instruments (Sis) passed to implement EU directives — Preserved ones are labelled as assimilated law
EU regulations with direct effect
Before Brexit, EU regulations were applied automatically in the UK, however, now they are “assimilated law.”
The Withdrawal Agreement is UK law automatically – It has supremacy over conflicting domestic law
EU supremacy still exists but ONLY for rights contained in the Withdrawal Agreement