PL7: Rule of Law Flashcards
(84 cards)
1
Q
Rule of Law - Constitutional Principle
A
s1 Constitutional Reform Act 2005
“Constitutional Principle”
2
Q
The Rule of Law (Allen Lane 2010),
A
Lord Bingham:
“all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts”
3
Q
Susbtantive School of Thought
A
- Moral component as necessary
- Without respect for fundamental human rights and freedoms a rule of law society cannot be said to exist.
4
Q
Ronald Dworkin
A
Substantive School
5
Q
Prof Joseph Raz
A
Formal school
6
Q
Formal (or “procedural”) school of thought
A
- Legal procedure must be clear and certain
- Law must be prospective
- Law must be clear
- Applied equally
- Judiciary must be independent.
- The moral content of laws is not determinative of whether the rule of law can be said to exist in a given jurisdiction
7
Q
How far the courts can pursue this role in actively developing and shaping the interpretation of law?
A
8
Q
Separation of powers intrinsic to the rule of law
A
Prevents the exercise of power arbitarily
9
Q
Aristotle
A
‘It is better for the law to rule than one of the citizens […] so even the guardians of the laws are obeying the laws.’
10
Q
Dicey - 8 principles that set up the “rule of law”
A
- Accessible, clear and predictable
- Resolved through legal processes - not through admin of government officials
- Apply equally
- Afford protection of human rights
- No delay/expense to justice
- Public officials should exercise powers in good faith
- Fair process
- Comply with international law
Substantative
11
Q
Legality - Lord Bingham
A
Government must respect and act within the confines of the law.
- Interference sanctioned by legal authority
- Parliament cannot be seen to have restricted rights unless made clear
- Statutory provisions define and limit legal capacities
- Courts determine whether gov power is lawfully exercised.
12
Q
Gove interference with persons or property must be sanctioned by legal authority
A
- Either by statute or common law
- Identifiable power to be exercised in lawful manner
Entick v Carrington 1765
13
Q
Legality principle
A
Presumption when interpreting statutes, that Parliament cannot be seen to have restricted important rights and principles unless made clear
ex p Simms
14
Q
Define and Limit legal capacity
A
Many public (governmental) bodies are incorporated by statute and so statutory provisions will
define and limit their legal capacities.
15
Q
Independence of the judiciary
A
Courts determine whether government power is lawfully exercised
16
Q
Judicial Review
A
Constitutional mechanism to ensure adherence to legality - and that the rule of law is protected
Prevents arbitrary use of government power.
17
Q
Administrative courts consider in JR
A
- Legislation - assess whether public body has complied with the provisions of an Act
- Legaliry of delegated legislation
- Breach of common law constitutional rights
- Lawful exercise of parliamentary sovereignty
18
Q
L Hoffmann - R v SoS Home Dept ex parte Simms [2000] 2 AC 115
A
Fundamental rights cannot be overridden by general or ambiguous words. … 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.
19
Q
R v SoS Home Department ex parte Simms [2000]
A
20
Q
Legal Certainty
A
Legislation should be cleraly drafted
21
Q
Legislation should apply to …. actions…
A
Legislation should apply to future actions, not retrospectively to past actions.
22
Q
Retrospectively applicable legislation
A
Sometimes passed when:
* Parliament wishes to legislate to overturn a decision of the courts
* Put an accepted procedure on a statutory footing
23
Q
Examples of retrospective legislation
A
- War Damage Act 1965
- War Crimes Act 1991
- Jobseekers (Back to Work Schemes) Act 2013
24
Q
War Damage Act
A
Overode HoL judgment on Burmah Oil Co Ltd v Lord Advocate [1965]
AC 75.
Gov was not obliged to pay damages for property destroyed or damaged in the war, as the court had previously ordered.
25
War Crimes Act 1991
Empowered the UK courts to punish war crimes committed by persons who were not
subject to British jurisdiction at the time when the crimes were committed, namely during World War Two.
26
Jobseekers (Back to Work Schemes) Act 2013
Vverrode the judgment of the Supreme Court in R (Reilly) v Secretary of State for Work
and Pensions [2013] UKSC 68 which had required the Department of Work and Pensions to pay a
rebate to claimants whose Jobseekers’ Allowance had been withdrawn, when they refused to take
part in an unpaid back-to-work training scheme.
27
Authority for governmental power
* Within boundaries of legislation - **Entick v Carrington**
* Use the power of gov bodies for the intended purpose - **R v
Somerset County Council, ex parte Fewings**
28
R v Somerset County Council, ex parte Fewings [1995]
* Local Government Act 1972, allowed
councils to manage common land for the ‘benefit, improvement or development‘ of the area.
* Somerset Council used power to ban stag hunting for ethical reasons.
* Court found the power could only be used to manage the deer herd, or to preserve or enhance the
amenity of the area.
* That hunting was morally repulsive had nothing to do with such
questions and so the court found that the Council had used its power unlawfully for an ‘improper purpose’.
29
Discretionary power
* volume of iscretionary power given to the executive has increased since WW2
30
Dicey on Discretionary power
Natural suspicion of discretionary power - less tightly restrictive gives the executive potential to use in **arbitrary way**
31
Who controls the exercise of discretionary power?
Key function of judicial review - control the exercise of discretionary power.
32
Changing judicial attitudes to discretion
Judicary have increased willingness to intervene in post-war period
33
Liversidge v Anderson [1942] AC 206
* Prevailing deferential judicial attitude
* Home Sec empowered under Reg.18B of the Defence Regs to imprison any person, if he had ‘reasonable cause to believe‘ that such a person had ‘hostile intentions’
* Liversidge was detained without trial under this regulation. He sued the Home Secretary for false imprisonment, claiming that ‘reasonable cause to believe’ imputed an
objective factual standard,
* Majority HoL accepted HS's interpretation of no objective req - needed to be shown not in **good faith**
34
Liversidge v Anderson [1942] AC 206 - Lord Atkin
* accused the majority of being **‘more executive minded than the executive‘**
* Word reasonable = qualification of power
35
IRC v Rossminster Ltd [1980] AC 952
* Reasonable grounds for suspecting offence, and reasonable cause to believe items seized would be req
* Not unlawful for lack of specificity about details of fraud suspected
* **Reasonable cause to believe** = objective fact to be tested
36
Lord Diplock
the time has come to
acknowledge openly that the majority of this House in Liversidge v Anderson were expediently and, at that time perhaps, excusably wrong and the dissenting speech of Lord Atkin was right’.
37
Equality before the law
the rule of law requires that the law applies equally to everyone, as far as possible.
38
Exceptions to equality before the law
* Monarch - above criminal law
* Judges immune from civil litigation for acts done within official jurisd
* Parliamentary Privilege
* Diplomatic Immunity
* Children not subject to same laws
* Cuts to legal aid - access to justice?
39
Administrative discretion
Administrative discretion given to government by Parliament (via legislation) creates one of the most acute potential forms of tension with the rule of law
40
Lord Bingham - Administrative Discretion
* Decisions should be made on stated criteria... be amenable to legal challenge.
* In practice can the people affected bring claims for JR? Not usually...
41
Access to justice
* Cuts to the government’s legal aid budget have made it increasingly difficult for criminal defendants, and those involved in civil claims, to obtain qualified legal representation.
42
Mckenzie Friends
(non-legally qualified and unregulated advisors) charging a fee for supporting someone in court – a service that was traditionally voluntary.
* High Court ruled that an unqualified “legal adviser” was negligent
in his handling of a basic clinical negligence case. He had wrongly advised a 70-year-old claimant, who was left without evidence and subsequently faced with a five-figure legal costs
claim.
43
R (Unison) v Lord Chancellor [2017] UKSC 51
* Fees regime
* unlawful under both domestic and EU law, as it effectively prevented access to justice
* SC constitutional right of access to the courts was inherent
in the rule of law.
* Rights of access valuable to society as a whole
44
Equality before the law - Lord Bingham
‘save to the extent that objective differences justify differentiation’
* eg Age
45
Inequality of application
* Schedule 7 of the Terrorism Act 2000
* Intrusive - need not have any grounds for suspecting involvement in terrorism.
* Liberty: ‘Recent research suggests Asian passengers are 42 times more likely to be stopped under schedule 7 than their white counterparts’.
46
Sch 7 of the Terrorism Act 2000 does not purport to accord different treatment of groups of people ....
The **way it is applied does so** without there being **any relevant distinction between those people**
47
Repeal of the HRA?
* Long standing and developing equivalent rights under the common law
* Bill of Rights Bill (2022) proposed substantial changes
* Substantive view - undermine rule of law
48
Right to a fair trail
* Art 6 ECHR & Common Law
* = "cardinal req of the rule of law"
49
HRA v Common Law
* Greater clarity and certainty
* accessibility to Mechanisms for enforcement
50
Fair Trial "significant threats
* "fast-track" extradition treaties
* ASBOs blurring Crim & Civ Law
* Secret courts for "closed material procedures"
51
Non compliance with international law
* Joint Intelligence and Security Committee (JISC)
* Failing to ask ‘rule of law questions’ led the government into error in the treatment of detained suspected terrorists and its
involvement in rendition and torture.
52
Gov Criticism of Judges
SOP - requires the executive to respects the role of judges as the final arbiters of what the law means.
Trend for gov to overtly criticise judiciary
53
BJ Miller 2
‘profoundly disagrees’
54
Lord Hailsham
‘in properly exercising judicial power to hold gov to account, the judges usurp no authority.
They exercise a constitutional power
which the rule of law requires that they should exercise’.
55
EU Withdrawal Act creates
Henry VIII powers
56
Henry VIII powers
allow government to change primary legislation by statutory instrument (SI), without further recourse to Parliament.
57
Public Law Project (PLP) - Jo Hickman
* The use of public notices in this way has been likened to making law by proclamation as in the time of Henry VIII.
* Introducing a power to change the law completely outside of the parliamentary process would set a dangerous and undemocratic precedent
58
Automated decision-making
* How can someone appeal a decision
made by an algorithm, not knowing what factors it has taken into account and the ‘reasoning’ by
which the decision has been reached?
**undermines the principle of judicial
transparency, accessibility and certainty**
59
Parliamentary Sovereignty - what would the courts
do if Parliament passed an Act which fundamentally undermined the UK as a rule of law state, for
instance by abolishing judicial review or changing the rules of democracy?
Jackson v Attorney General [2005] UKHL 56.
60
Limits of Executive Power
* Requirement of Legality
* Protection of Convention Rights
* Proportionality
* 'Derogation’ from Convention rights
* Constitutional statues
* Common law constitutionalism
61
Requirement of legality
* Entick v Carrington 1765 - government power can only be exercised on **identifiable authority** and in a **lawful manner**
62
Mechanisms for legality
* Control by Parliament
* Restraints by the courts - ultra vires
63
Control by Parliament
* Parliament decides whether or not government proposals become law
* Passes laws which
gives the executive powers but within regulated restrictions.
64
Restraints by the courts
The executive’s ‘ultra vires’ actions are restrained by judicial review.
65
(Per Lord Hope in Jackson v AG [2005] UKHL 56)
The rule of law enforced by the courts is the ultimate controlling factor on which our
constitution is based.
66
Protection of ‘Convention Rights’
* Human
Rights Act 1998.
* give effect in UK law to rights and freedoms
guaranteed under the European Convention on Human Rights.
67
UK and ECHR - be aware
* breach - can be redressed in UK Court
* Public Authorities - act in accordance with Conv Rights
* Parl to ensure new laws are compatible with ECHR
68
Proportionality
* A protective function on the ECHR
* Qualified rights can be interfered with - of legitimate aim, prescribed by law, and necessary for Democrati Society
**Proportionate**
69
Case for Proportionality
Sunday Times v UK (1979-80) 2 EHRR 245
70
Sunday Times v UK (1979-80) 2 EHRR 245
* Thalidomide
* Sunday Times - UK Court Order infringed Freedom of Expression
* No "pressing social need" = disproportionate restriction
71
Derogation’ from Convention rights
ECHR may derogate in certain times - eg War
Art 15 ECHR
72
Derogation’ from Convention rights Case
A & Others v Secretary of State for Home Dept [2004] UKHL 56
73
A & Others v Secretary of State for Home Dept [2004] UKHL 56
* Belmarsh Case
* Can only derogate some ECHR rights in defined circumstances, in accordance with the law
* Article 15 meant the Home Office had to show both that there was a ‘public emergency threatening the life of the nation’ and that the measures taken were ‘strictly required’;
74
Judgment in A & Others
* Public Emergency = political decision
* Difference in treatment of non-UK nationals not proportionate or rational.
* Unjustifiably Discriminatory
75
Constitutional Statute
More difficult to repeal than ordinary legislation and so afford an additional level of protection for constitutional rights
76
Older Constitutional Statutes
* Bill of Rights 1689; Act of Settlement 1701
* Parliament Act 1911
* Representation of the People Act 1918
77
More recent Constitutional Statues
* European Communities Act 1972
* Scotland Act 1998
* Constitutional Reform Act 2005
78
79
Constitutional Statue definition
Laws LJ
conditioned the legal relationship between the citizen and state in some general, overarching
manner, or enlarged or diminished the scope of what were regarded as fundamental,
constitutional rights.
80
Farrah Ahmed and Adam Perry: Constitutional Statute
* Creates or regulates state institution
* gov arrangements
"a statute that is about state institutions, and
which substantially influences, […] what those institutions can and may do."
81
Implied repeal
a new statute, which is inconsistent with an existing statute, will automatically supersede the existing law without explicit provision
82
Does implied repeal apply to constitutional statutes
* No
* Must be by specific words
* H v Lord Advocate [2012] UKSC 24,
* Partial restriction on executive power
83
Common Law Constitutionalism
* Repository of individual rights
* Judiciary protect these rights and freedoms via common law
84
Why has courts common law development increased since WW2
* growth of the state has presented the courts with new challenges
* development of the common law to meet
current needs.
