Public Law: Rule of Law and Separation of Powers

Overview of Topics

  • The Rule of Law

  • The Separation of Powers

  • The Separation of Powers in the UK

Two Fundamental Constitutional Principles

  • The two key constitutional principles are the Rule of Law (RoL) and the Separation of Powers (SoP), with Parliamentary Sovereignty to be discussed in the following weeks.

  • It is crucial to note that these principles are not established laws, though legal rules may be influenced by them.

  • These principles serve multiple purposes:

    • Allow identification of the aims and goals within constitutional systems.

    • Assist in the design and reform of constitutional frameworks.

    • Enable assessment of the existing constitutional arrangements.

I. Rule of Law
Key Questions and Topics

  1. What are the elements (sub-rules) of the Rule of Law?

  2. Is the Rule of Law a formal or substantive concept?

  3. Who is responsible for upholding the Rule of Law? Is it the judiciary, Parliament, or the Government?

Constitutional Reform Act 2005

  • The Constitutional Reform Act 2005 encompassed several provisions:
    i) It modified the office of Lord Chancellor.
    ii) It established the Supreme Court of the United Kingdom.
    iii) It abolished the appellate jurisdiction of the House of Lords, resulting in Law Lords no longer issuing legal judgments but only debating and voting on legislation.

  • Section 1 of the Act states that it does not negatively impact the existing constitutional principle of the Rule of Law. Notably, the Act does not define the 'Rule of Law' purposefully.

Definition of the Rule of Law

  • Lord Bingham provided a definitive description:

"The core of the existing principle is that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts." (Refer to Le Sueur et al, pp. 84-85)

Lord Bingham’s Eight 'Sub-Rules'

  1. The law must be accessible, intelligible, clear, and predictable.

  2. Matters of legal rights and liabilities should generally be resolved through law application rather than discretionary acts.

  3. Law should apply equally to everyone, with allowances for objective differences requiring differentiation.

  4. Ministers and public officers must execute conferred powers in good faith, fairly, and for proper purposes, without exceeding limits and acting unreasonably.

  5. The law must provide adequate protection for fundamental rights.

  6. Civil disputes must be resolvable without exorbitant costs or undue delays.

  7. Adjudicated procedures should be fair and equitable.

  8. The Rule of Law necessitates the state's compliance with international law obligations alongside its national law requirements.

Formal vs. Substantive Rule of Law
Formal (Content-Free)

  • Joseph Raz’s version includes:
    1) Laws must adhere to established processes.
    2) Laws must be prospective rather than retrospective.
    3) Laws must be characterized by openness, generality, and clarity.
    4) An independent judiciary is essential.
    5) There must be access to courts.

Substantive (Content-Rich)

  • As articulated by Ronald Dworkin in A Matter of Principle:

The substantive conception of the Rule of Law does not make a distinction between the legal rule and substantive justice; it inherently demands that the rules enforce moral rights.

Skepticism and Limitations

  • Political constitutionalists critique the added value of the Rule of Law; for example, Griffith's The Political Constitution (1979) questions its intrinsic worth.

  • Even the formal (weaker) stance of the Rule of Law may conflict with Parliamentary Sovereignty—this conflict will be examined in future discussions.

Economic and Social Rights

  • Significant disagreements exist regarding issues like housing, healthcare, and education. Questions arise whether these should be framed in terms of substantive Rule of Law including human rights or left for political debate, especially given the constraints of public resources (see Bradley, Ewing, and Knight 2018, pp. 94-95).

Protection of the Rule of Law in the UK

  • The judiciary plays a primary role in protecting the Rule of Law, supported by Parliament and the Government.

Mechanisms of Judicial Protection
(I) Fundamental Rights

  • Courts articulate common law fundamental rights, which have been strengthened by the Human Rights Act 1998 in response to criticisms of common law’s inadequacy in safeguarding rights.

  • They also apply tort law against public office-holders (see Le Sueur et al 2023, p. 92).

(II) Judicial Review and Striking Down Action

  • Courts will invalidate government actions inconsistent with the Rule of Law.

  • They seek to interpret legislation compatibly with the Rule of Law and hold most non-Act legislation as invalid if incompatible with it (emphasis from Elliott & Thomas 2017, p. 75).

Importance of the Human Rights Act 1998

  • The enactment of the Human Rights Act 1998 has significantly fortified the judiciary's role and leans towards a more substantive interpretation of the Rule of Law, though limitations exist, particularly regarding Section 4.

  • In the context of the uncodified UK constitution, the Rule of Law takes on increased significance (see Elliott & Thomas 2017, p. 71).

Case Law Examples

  • Entick v Carrington: important contrasting judgment against Malone v Metropolitan Police Commissioner (No 2) regarding tort law.

  • UNISON v Lord Chancellor: emphasizes the inherent constitutional right of access to the courts (para 66).

  • A and Others v Secretary of State for the Home Department [2004] UKHL 56: outlines principles against punishment without law and insists on the independence of the judiciary and the separation of powers.

Parliament and the Rule of Law

  • Parliament can enact legislation that establishes or reinforces aspects of the Rule of Law.

  • The role of Parliamentary Committees (including the House of Commons Public Administration and Constitutional Affairs Committee and House of Lords Constitution Committee) is notable.

  • However, due to Parliamentary Sovereignty, Parliament may also pass legislation contrary to the Rule of Law or respond to specific legal judgments.

Key Legislative Examples

  • Human Rights Act 1998: A foundational statute strengthening human rights protections.

  • Constitutional Reform Act 2005: Important in reshaping the judiciary and reducing the powers of the executive.

Government and the Lord Chancellor

  • The role of the Lord Chancellor has been diminished post-Constitutional Reform Act 2005, now termed the Secretary of State for Justice, with a special duty to ensure compliance with Rule of Law principles.

  • However, governmental actions can conflict with the Rule of Law and are subject to judicial review, details of which will be covered in the spring term.