(2) The Extended Rule of Law

Question 1

What prompted the development of the extended rule of law?

Answer 1

Following criticism of Dicey’s core rule of law for failing to sufficiently safeguard against the abuse of power and prevent morally abhorrent laws being considered valid, alongside the consistent undermining of his position as broad discretionary powers were consistently granted to the executive to manage the welfare state, academics were led to reconsider the underlying principle of the rule of law.

Question 2

Which events highlighted the gap left by the core rule of law in regards to the morality of laws?

Answer 2

The abuse of powers of the state under the Facist and Communist regimes highlighted the failings of the core rule of law to ensure only morally good laws were valid (whether it is the role of the rule of law to ensure this is another question).

Question 3

Who developed the idea of the extended rule of law?

Answer 3

Fuller re-evaluated the rule of law and presented the idea of an ‘extended’ rule of law.

Question 4

What was Fuller’s extended rule of law?

Answer 4

According to Fuller’s vision of the rule of law a legal system must respect a range of formal qualities in order to comply with the rule of law - these qualities were designed to safeguard against the existence of morally questionable but valid laws. Failure to exhibit these characteristics could lead to the validity of the law being questioned.

Question 5

What were the three key formal qualities laws must satisfy if, according to Fuller, they are to comply with the extended rule of law?

Answer 5

The three key extended considerations proposed were;

1. Non-retroactivity
2. Clarity and Stability
3. The Legal Process must be Fair

Question 6

How did Fuller suggest the three formal qualities required of laws (under his interpretation of the rule of law) ensured moral goodness?

Answer 6

He said that compliance with these qualities would invoke an ‘inner morality’ within a legal system – thus addressing the issues levied at the ‘core’ rule of law theory.

Question 7

What is the concept of non-retroactivity?

Answer 7

The courts have developed long-standing interpretive presumptions against legislation having retroactive effect as this would prevent individuals planning their conduct in relation to the law.

Question 8

Is the adherence to non-retroactivity an absolute one?

Answer 8

No, in the case of Phillips v Eyre saw the defendant’s attempt to justify the introduction of an indemnity act relating to his actions while in office upheld – indicating that in some circumstances retrospective legislation may be appropriate, particularly when other public interests are at stake.

Question 9

What further two examples are there of Parliament infringing upon the principle of non-retroactivity?

Answer 9

1. In a case involving damage to a Burmah Oil facilities by UK Armed Forces Parliament introduced the 1965 War Damages Act preventing future and past damages claims.
2. Attempts by Parliament to enact the Jobseekers Act 2013 to retrospectively validate the withholding of benefits – whilst two affected individuals brought a successful legal action against the scheme originally introduced.

Question 10

How did Willes J clarify the acceptance of non-retroactivity as a principle of the extended rule of law?

Answer 10

In the case of Phillips v Eyre he remarked - ‘[t]he general principle of legislation by which the conduct of mankind is to be regulated ought to deal with the future acts and ought not to change the character of past transactions carried upon the faith of the then existing law’

Question 11

What did Lang J say about the importance of the principle of non-retroactivity?

Answer 11

He said - ‘Parliament’s undoubted power to legislate to overrule the effect of court judgements generally ought not to take the form of restrospective legislation designed to favour the Executive in ongoing litigation in the courts … unless there are compelling reasons to do so. Otherwise it is likely to offend a citizen’s sense of fair play.’

Question 12

In which area is adherence to non-retroactivity particularly strict?

Answer 12

The courts exercise particular caution in relation to retroactive criminal law.

Question 13

What did Lord Reid say about non-retroactivity of criminal law?

Answer 13

Lord Reid declared in Waddington v Miah that ‘it is hardly credible that any government department would promote, or that Parliament would pass, retroactive criminal legislation’.

Question 14

What provides further support for the common law principle of non-retroactivity of criminal law?

Answer 14

Article 7(1) of the ECHR.

Question 15

What issues arise when considering the principle of non-retroactivity in light of the UK Common Law system?

Answer 15

As part of the common law system judges adapt, develop and change interpretations of law – in doing so they inevitably create retroactive implications for various parties.

Question 16

How can the requirement of non-retroactivity be somewhat reconciled with the UK Common Law System?

Answer 16

In some instances judges may seek to restrict the retroactive implications of their decisions, indeed the Supreme court recognised this acknowledging ‘that ‘[t]here are now a considerable number of dicta to the effect that court has a general inherent power to limit the retrospective effect of its decisions’.

Question 17

Which two cases drew controversy in relation to the non-retroactivity requirement?

Answer 17

The cases of R v R and R v C.

Question 18

What was the eventual finding in the case of R v R?

Answer 18

The Supreme Court held that there had been no retroactive change to the criminal law but rather ‘the removal of a common law fiction which has become anachronistic and offensive’, this position was reinforced by the ECHR who agreed and described the common law change as ‘a reasonably foreseeable development of law’.

Question 19

What was the eventual finding in the case of R v C?

Answer 19

It was ultimately found that there had been no abuse of process and that the defendant was not victim to retrospective implications of law.

Question 20

Overall, how does the role of the judge interact with the concept of non-retroactivity and what impact does it have upon it?

Answer 20

Judges do alter the law by their decisions and that there decisions have retroactive effect – non-retroactivity is not, therefore, an absolute value to be protected within a legal system.
Some infringements upon the prohibition of retroactivity may be permitted depending on the nature of the case and the degree of upheaval or uncertainty produced – the reasonable foreseeability test.

Question 21

What is the concept of clarity and stability of law?

Answer 21

Fuller argued that an individual should be able to ascertain their legal rights and obligations at any given time in order for the law to guide their conduct – lack of clarity and consistency of law prevents this and has a ‘chilling effect’ on the relevant behaviour or conduct.

Question 22

What threatens the clarity and stability of law in the UK?

Answer 22

The sheer complexity of the UK legal system often creates issues in this regard (despite the availability of legal advice) – as illustrated by the case of R v Chambers.

Question 23

What did Toulson LJ say about the requirements of clarity and stability?

Answer 23

Toulson LJ remarked – ‘it is profoundly unsatisfactory if the law itself is not practically accessible’.

Question 24

What did Toulson LJ suggest was a cause of confusion and instability in the UK legal system?

Answer 24

The law’s development over time has led to a mishmash of primary and secondary legislation as well as case law by the way of legal authority for issues – thus the courts have a difficult job trying to disentangle which laws to apply for given cases.

Question 25

How did Baroness Hale stress the importance of this requirement?

Answer 25

Baroness Hale remarked – ‘a major objective of the criminal law is to warn people that if they behave in a way which it prohibits they are liable to prosecution and punishment. People need and are entitled to be warned in advance so that, if they are of a law-abiding persuasion, they can behave accordingly’.

Question 26

How has the principle of clarity and stability been further reinforced?

Answer 26

It has been further reinforced by the ECHR following the UK’s joining – the case of Sunday Times v UK saw the ECHR found that the entire area of law in regards to contempt of court was too vague to satisfy the ‘prescribed by law’ requirement for an interference with Article 10. This places another measure in place to protect the clarity of UK Laws.

Question 27

To what extent does the law need to be clear and stable under this requirement?

Answer 27

There is something of a balance here – there is no requirement that the law be absolutely certain or ascertainable without legal advice – as this would impose ‘excessive rigidity’ upon a legal system.

Question 28

Which other requirement do the clarity and stability prerequisites compliment?

Answer 28

The idea that ‘people should know, or at least be able to find out, what the law is’ is a key part of the UK’s commitment to the rule of law and develops further the government by law requirement.

Question 29

What is part of the reasoning behind the clarity and stability requirement?

Answer 29

People should be able to assess the law that affects their interests and actions.
There are intrinsic personal benefits to each legal person of being able to do this, however, there are also extrinsic wider social benefits as the level of certainty, consistency and predictability encouraged by such a principle in turn encourage business and economic growth.

Question 30

What is meant by the principle that the legal process must be fair?

Answer 30

Under this principle a legal system is required to show certain qualities if it is to be compliant with the rule of law;

1. A commitment to allowing individuals to access the courts
2. The judiciary may be impartial and that their decisions open to scrutiny
3. All officials with a role in the legal system exercise their discretion fairly

Question 31

Where does the requirement of a fair legal process stem from?

Answer 31

This component of the extended rule of law builds upon the principle of equality before the law.
Rather than simply insisting that all parties are subject to the same legal process, the extended rule of law goes beyond this prescribing particular qualities.

Question 32

Why are these specific characteristics important to the extended rule of law?

Answer 32

According to the extended rule of law, the absence of these characteristics allows for rules to be so malleable as to be devoid of meaning.

Question 33

What is the importance of the access to courts quality?

Answer 33

Access to the law, is according to the courts themselves, crucial if the laws are not to become ‘a dead letter’ and ‘the work done by Parliament … rendered nugatory’.

Question 34

What improved access to the courts in the UK system?

Answer 34

The introduction of the Legal Aid and Advice Act 1949 greatly improved access for those without sufficient private funds, however, subsequently increasing costs have seen efforts to restrict legal aid and increase court fees intensify.

Question 35

How have the courts been seen to protect or uphold the access to the courts requirement?

Answer 35

The courts have been seen on several occasions to strike down legislation or dismiss cases on the grounds of conflicts with the rule of law.
In ex parte Witham the courts did just this, striking down a statutory instrument that would’ve significantly increased court fees on the basis that it would’ve interfered with the principle of access to the law. An identical approach was taken by the Supreme Court in the UNISON Case.

Question 36

To what extent will the court ensure access to the justice system?

Answer 36

Courts have not, however, been willing to impose spending requirements on schemes such as legal aid – the access to justice requirement does not entitle individuals to a Rolls-Royce service.

Question 37

What is the importance of the impartial and open adjudication quality?

Answer 37

A key part of Dicey’s conception of the Rule of Law, this principle holds that judges should not sit in cases where they have a personal or financial interest, particularly if doing so would make the process appear to external observers to be unfair.

Question 38

How is the importance of this quality reinforced?

Answer 38

This position is affirmed by Article 6 of the ECHR.

Question 39

What is the difference between judicial independence and judicial neutrality?

Answer 39

The key difference lies in the idea that judges are human beings and as such can be expected, to an extent, to bring their own opinions on matters of public policy into the courtroom.
Human imperfection remains a feature of all systems of adjudication.

Question 40

Which case saw the courts emphasise the importance of impartiality?

Answer 40

The case of McFarlane v Relate Avon Ltd saw an individual claiming his dismissal was motivated by discrimination on the grounds of his beliefs have his request for a special judicial panel to hear his case forcefully rejected. It was held by Law LJ that all religious beliefs and the right to hold them should be protected equally by law and no preference or extra leniency/protection should be offered to a given belief on account of it’s perceived credentials.

Question 41

How does the ECHR extend this requirement of impartiality?

Answer 41

Article 6 of the ECHR says – criminal and civil proceedings must be conducted by ‘fair and public hearing’.

Question 42

What does this extension by the ECHR give rise to?

Answer 42

Essentially, this requirement is that of open adjudication and is based upon the notion that judicial impartiality cannot be established or observed by individuals subject to the legal system if the court proceedings and reasoning are not made public.

Question 43

What did Jermey Bentham say on the requirement of open adjudication?

Answer 43

Jeremy Bentham noted in this regard – ‘where there is no publicity there is no justice’.

Question 44

How do the courts approach the requirement of open adjudication?

Answer 44

This principle has become a respected one by the courts but they have asserted that they may exercise their discretion to depart from it in cases where there is a requirement to do so in order to protect justice in said case – e.g. identity of children or victims in rape cases.

Question 45

What is the importance of the consistent operation of official discretion quality?

Answer 45

In order to protect the impartiality and consistency of the application of law there must be fairness in all stages of the process.

Question 46

Which case illustrated the importance of correct exercising of official discretion throughout the entire process or investigation, arrest and trial?

Answer 46

The case of ex parte Bennett illustrates that breaches to the rule of law at any point in the process of investigating, arresting and trying an individual will lead to the trial being stopped and the rule of law being undermined.

Question 47

What is the balancing act when it comes to official discretion?

Answer 47

Inevitably there are many public official capable of abusing their discretion or using it in an unfair manner – such discretion is still required in account of it’s practical significance/importance.

Question 48

How have the courts sought to restrict unfair use of official discretion?

Answer 48

The courts have been keen to promote openness in regards to the exercise of such discretion.

Question 49

What did Fuller say about this approach by the courts to monitor use of official discretion?

Answer 49

Fuller argued this was necessary to prevent ‘a discrepancy between the law as declared and as actually administered’.

Question 50

How does making the use of official discretion more open make unfair use more difficult?

Answer 50

The requirement to show their reasoning makes it harder for unscrupulous officials to apply the law unfairly and inconsistently – thus improving public faith in the legal system.

Question 51

What was the significance of the Corner House Research Case in regards to the use of official discretion?

Answer 51

The case drew into question what constitutes acceptable use of discretion by public officials. The Supreme Court also demonstrated caution and reluctance to cast an ‘extended’ requirement of the rule of law as an absolute requirement rather than a desirable attribute of a legal system.

Question 52

How did Joseph Raz oppose Fuller’s conception of the extended rule of law?

Answer 52

He said - ‘A non-democratic legal system, based on the denial of human rights… may in principle, conform to the requirements of the rule of law’. Indeed Raz was of the view that the characteristics required under Fuller’s interpretation were insufficient to prevent abuses of power by governments or public officials. According to Raz, respect for the rule of law may be necessary for the operation of a legitimate legal system – but it cannot be used to determine the moral righteousness of a system.

Question 53

How do the requirements of the extended rule of law interact with parliamentary sovereignty?

Answer 53

There are interpretive presumptions used to protect the extended rule of law from parliaments legislation. Having said this, the components of the extended rule of law are regarded as desirable rather than essential in the UK legal system.

Question 54

How do the requirements of the extended rule of law interact with other public interests?

Answer 54

The aspects of the rule of law are considered important interests which the courts strongly presume will be respected by public officials but which may be outweighed by other important interests - as in the case of Corner House Research where public safety was placed above it.

Question 55

To what extent will the court go to align the requirements of the rule of law and parliamentary sovereignty?

Answer 55

The interpretive presumptions made by the courts can, in some instances, see the courts seemingly depart radically from the literal meaning of statutes.

Question 56

Does the importance of the requirement to the rule of law impact upon the extent to which the courts will go to realign it with parliamentary sovereignty?

Answer 56

Seemingly yes - where one of the central facets of the rule of law (access to the courts) was threatened by Acts of Parliament the courts have shown an extreme reluctance to enforce the literal meaning of the provision - in thecae of Anisminic Ltd v Foreign Compensation Commission saw the courts cleverly evade an ouster clause put in place with the intention of stopping the courts reviewing the case.

Question 57

What did the case of R(Evans) v Attorney General demonstrate in terms of the courts approach to reconciling parliamentary sovereignty and the rule of law?

Answer 57

This case presented the notion that generally, the position of the courts appears to be that unless the elements of the extended rule of law are expressly abrogated by a clear Act of Parliament, the courts will not lightly subordinate them to other interests.

Question 58

What is the idea of common law supremacy and how does it affect the relationship between parliamentary sovereignty and the rule of law?

Answer 58

Some argue that certain common law principles – such as aspects of the rule of law – should allow the courts to override statutes that contradict such fundamental principles – this position is one of common law supremacy.

Question 59

Who offered support to the idea of common law supremacy?

Answer 59

Cooke J who said – some rights and common law principles ‘presumably lie so deep that even Parliament could not override them’.
&
Lord Steyn was vocal on the issue in the Jackson case – ‘in exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the…supreme court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Common cannot abolish’

Question 60

How does the extended rule of law build upon it’s predecessor?

Answer 60

The extended rule of law enlarges the reach of the principle but sometimes in doing so dilutes it.

Question 61

How may the extended and core rules of law be distinguished?

Answer 61

The core rule of law is generally concerned with the necessary aspects of a legal system the extended rule of law’s features are perhaps considered more to be desirable – indicating that the system is good and in shape.

Question 62

What is the significance of the courts approach to the extended rule of law?

Answer 62

The extended rule of law is being championed in a way as the courts develop interpretive rules to balance and protect those principles with/from other policy interests.
Simply by suggesting that these principles may one day become ‘necessary’ in the same way as the core rule of law principles, not only does the door for that prospect remain open but parliament are even more wary of disregarding the principles altogether.