5 - Rule of Law

Question 1

What is the meaning of the ‘rule of law’ in the context of public law principles?

Answer 1

Lord Bingham defined it as the core principle that 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.

Question 2

What are the formal and substantive schools of thought regarding the Rule of Law?

Answer 2

The distinction between ‘formal’ and ‘substantive’ perspectives is crucial for understanding the application of rule of law principles.

Formal Perspective (e.g., Professor Joseph Raz):
- Legal procedure must be clear and certain.
- The law must be prospective, not retrospectively applicable.
- The law must be clear and applied equally.
- The judiciary must be independent.
- The moral content of laws is not determinative of the existence of the rule of law.

Substantive Perspective (e.g., Ronald Dworkin):
- Includes the same formal requirements but adds that respect for fundamental human rights and freedoms is essential for the existence of the rule of law.

Question 3

How does the rule of law relate to the separation of powers?

Answer 3

• The relationship between the rule of law and the separation of powers is significant, as it pertains to the judiciary’s role as guardians of the rule of law.
• Clear distinctions between the judiciary and the executive, as well as between the judiciary and Parliament, are crucial.
• The separation of powers doctrine prevents government officials from exercising power arbitrarily.
• Historically, Aristotle advocated for the rule of law as a protection against tyranny, emphasising that it is better for the law to rule than for individuals, reinforcing the intrinsic link between the rule of law and the separation of powers.

Question 4

What are the key components of the rule of law as outlined by Lord Bingham?

Answer 4

• The law should be accessible, clear, and predictable.
• Legal issues should be resolved through legal processes, not administrative discretion.
• The law should apply equally to all.
• The law should protect human rights adequately.
• There should be access to justice without inordinate delay or expense.
• Public officials must exercise their powers in good faith and within limits.
• Legal and adjudicative processes should be fair.
• The state must comply with its international law obligations.

Question 5

What is the requirement of legality in the context of the rule of law?

Answer 5

The requirement of legality stipulates that the government must respect and act within the confines of the law.

Key points include:
- Any government interference with persons or property must be legally sanctioned, granting identifiable power for the action, exercised lawfully (e.g., Entick v Carrington (1765)).
- The legality principle presumes that Parliament does not intend to restrict important rights and freedoms unless explicitly stated.
- The independence of the judiciary is vital, as courts determine whether government power is lawfully exercised, ensuring it is not arbitrary through judicial review.

Question 6

How does judicial review function to protect the rule of law in the UK?

Answer 6

Judicial review is the mechanism by which the rule of law is safeguarded in the UK constitution.

The Administrative Courts evaluate the lawfulness of governmental actions in relation to:
- Primary Legislation: Courts cannot review Acts of Parliament but can assess compliance by public bodies with the Act’s provisions. Acting outside statutory powers (ultra vires) is deemed unlawful.
- Delegated Legislation: Courts can review whether delegated legislation complies with powers granted by the parent Act (intra vires) and assess government adherence to it.
- Common Law and Prerogative Power: Courts can determine breaches of common law constitutional rights or lawful exercise of prerogative powers.

Question 7

What does legal certainty mean in the context of the rule of law?

Answer 7

Legal certainty is a fundamental feature of the rule of law, requiring that laws be clearly articulated so citizens understand the rules governing society. Key aspects include:
- Legislation should apply to future actions, not retrospectively.
- Retrospective laws create uncertainty, as individuals may unknowingly violate a future law based on past actions.
- Parliament may pass retrospective legislation to overturn court decisions, but the focus is on the impact of the new law on individuals who acted under the previous law.

Question 8

What are some examples of retrospective legislation in the UK?

Answer 8

War Damage Act 1965: Overrode the House of Lords’ judgment in Burmah Oil Co Ltd v Lord Advocate [1965], absolving the government from paying damages for war-damaged property.

War Crimes Act 1991: Enabled UK courts to prosecute war crimes committed by individuals not subject to British jurisdiction during World War II.

Jobseekers (Back to Work Schemes) Act 2013: Overrode the Supreme Court ruling in R (Reilly) v Secretary of State for Work and Pensions [2013], which required payments to claimants whose Jobseekers’ Allowance was withdrawn.

Question 9

What does equality before the law entail in the context of the rule of law?

Answer 9

Equality before the law requires that the law applies equally to everyone, regardless of status. Lord Denning encapsulated this in Gouriet v Union of Post Office Workers [1977], stating that no one is above the law.

However, there are exceptions, including:
- The monarch is arguably above the law.
- Judges in higher courts are immune from civil litigation for acts within their jurisdiction.
- Parliamentary privilege and diplomatic immunity may exempt certain individuals.
- Children are subject to different legal standards than adults.

Question 10

Provide a summary of what is meant by the ‘rule of law’ and some of its key characteristics.

Answer 10

• The rule of law has identifiable features, as discussed in Lord Bingham’s book, The Rule of Law.
• The principle of legality means that all government actions must be carried out within the law.
• The courts and the process of judicial review is fundamental to upholding the rule of law.
• Legal certainty is a key feature of the rule of law.
• The theory of equality before the law is not always borne out in practice.

Question 11

How do the principles of the rule of law and parliamentary supremacy interact in the UK constitution?

Answer 11

The rule of law acts as a check on executive power, ensuring it operates only on lawful authority granted by Parliament.

Parliamentary supremacy means that Parliament can enact laws that might contradict fundamental aspects of the rule of law, leading to potential friction between these principles. E.g., a discriminatory piece of legislation or one that restricts rights and freedoms.

Statutory law supersedes common law, emphasising the importance of clear legislative language to avoid undermining individual rights, as highlighted in R v SoS Home Department ex parte Simms, where Lord Hoffmann stated that fundamental rights cannot be overridden by ambiguous terms.

Question 12

What does the case of R v Somerset County Council, ex parte Fewings illustrate about the exercise of public authority?

Answer 12

This case demonstrates that public authorities must operate within their legally granted powers, using them for their intended purpose.

Under s. 120(1)(b) of the Local Government Act 1972, the Somerset County Council’s ban on deer hunting was deemed unlawful as it was based on moral reasons rather than being necessary for managing the deer herd or enhancing local amenities.

Question 13

What are the implications of the A & Others v Secretary of State for Home Department case regarding government discretion and human rights?

Answer 13

The House of Lords ruled that while the government can derogate from the ECHR under certain conditions, it must adhere to legal requirements, such as proving a “public emergency.”

The case questioned the discrimination against non-UK nationals in the government’s indefinite detention policy, with Lord Bingham asserting that the selective detention could not be justified under the rule of law.

Question 14

How does legislation relate to government discretion in decision-making?

Answer 14

Legislation often cannot cover every possible scenario, necessitating discretion from decision-makers.

However, excessive discretion is viewed as a threat to the rule of law, as noted in Lord Bingham’s principles, echoing Professor Dicey’s concerns about arbitrary governance.

Question 15

What is the significance of controlling discretionary power in the context of the rule of law?

Answer 15

Discretionary power must be exercised lawfully, as legislation cannot dictate every action of the government.

Judicial review plays a vital role in ensuring that such power is not abused, maintaining a balance between discretion and adherence to statutory purposes.

Question 16

How have judicial attitudes towards discretionary power evolved since the Second World War?

Answer 16

Judicial deference to the executive was more common post-World War II, even when statutory purposes were precisely defined.

However, courts began to emphasise the need for discretion to align with legislative intent, illustrated by Lord Atkin’s dissent in Liversidge v Anderson, advocating for objective standards of justification in the exercise of discretion.

Question 17

What did the Inland Revenue Commissioners v Rossminster Ltd case reveal about the exercise of statutory discretion?

Answer 17

This case clarified that the use of phrases like “reasonable cause to believe” must be assessed based on objective facts.

Lord Diplock’s statement criticised the precedent set in Liversidge v Anderson, advocating for more rigorous scrutiny of discretionary powers exercised by authorities.

Question 18

What principle was established in Padfield v Minister of Agriculture, Fisheries and Food regarding the exercise of ministerial discretion?

Answer 18

The House of Lords determined that ministerial discretion is not absolute; it must align with the statute’s purpose.

The failure to act when discretion is granted can also be deemed unlawful, encapsulating the ‘Padfield principle’ which emphasises the importance of legislative intent in exercising discretion.

Question 19

How is judicial discretion characterised in the context of the rule of law?

Answer 19

Judicial discretion, such as in sentencing, must be exercised rationally and consistently to prevent arbitrary decision-making.

Constraints on discretion include sentencing guidelines, precedents, and the right to appeal, ensuring that judicial decisions adhere to principles of fairness and justice, as stated by Tom Bingham.

Question 20

Provide a summary of the relationship between the rule of law and parliamentary sovereignty.

Answer 20

• Parliamentary sovereignty is consistent with the rule of law but there is a potential source of friction between these two constitutional principles.
• Under Lord Hoffmann’s ‘legality principle’ the courts will strive, where possible, to safeguard fundamental freedoms and rights
• Statutory powers given to the government and other public bodies must be exercised according to the purpose for which they were given
• The courts will seek to prevent discriminatory application of the law
• Discretionary powers must be exercised within the law – the courts will seek to prevent an arbitrary use of such powers.

Question 21

What issues arise from unclear and inaccessible legislation in the UK?

Answer 21

The UK faces issues due to “badly drafted legislation” resulting in confusion, as highlighted by Lord Bingham. He cites the Criminal Justice Act 2003 as “deeply confusing,” which presents problems for understanding even for legal professionals.

Additionally, publicly available legislation online is often not kept up-to-date, making it difficult for laypeople to ascertain the current law without incurring legal costs.

Question 22

How does uncertainty in judicial decisions affect the rule of law?

Answer 22

Judges must provide properly reasoned and clear decisions; however, dissenting judgments can create uncertainty.

Lord Bingham asserts that dissenting judgments do not undermine the rule of law if the majority’s judgment is clear. Yet, ambiguity in judicial decisions can hinder accessibility and certainty, which are vital for upholding the rule of law.

Question 23

What are the principles surrounding administrative discretion according to Lord Bingham?

Answer 23

Administrative discretion is exercised by officials on numerous daily decisions, such as housing and immigration.

Key points include:
- Decisions must be based on stated criteria.
- They should be subject to legal challenge, though success is less likely if the decision was within legal and reasonable limits.
- Practical challenges exist for affected individuals seeking to contest these decisions due to the costs associated with judicial review.

Question 24

What does Lord Bingham state about equality before the law?

Answer 24

The law should apply equally to all, “save to the extent that objective differences justify differentiation.” Examples include:
- Young children receiving different treatment due to their maturity level (age of criminal responsibility is 10 in the UK).
- Non-British nationals can be deported, while British nationals cannot; this differentiation is relevant. However, indefinite detention of non-nationals suspected of terrorism, as seen in A & Others, was deemed incompatible with the rule of law due to the unjustified nature of the distinction.

Question 25

What concerns exist regarding the inequality of application of the law?

Answer 25

Schedule 7 of the Terrorism Act 2000 grants broad powers to stop and search individuals without suspicion.

Key issues include:
- Individuals may be detained for up to nine hours and have belongings retained for seven days.
- No right to free legal representation while detained at ports.
- Research indicates that Asian passengers are disproportionately targeted, being 42 times more likely to be stopped compared to their white counterparts.

Question 26

How does Lord Bingham view the relationship between human rights and the rule of law?

Answer 26

Lord Bingham believes that a state which represses or persecutes its citizens cannot be seen as upholding the rule of law.

He emphasises the significance of moral content in laws, stating that even if laws are followed, they do not constitute adherence to the rule of law if they violate fundamental human rights.

Question 27

What role does the Human Rights Act 1998 (HRA) play in the UK’s legal framework?

Answer 27

The HRA incorporates the European Convention on Human Rights (ECHR) into UK law, ensuring public authorities comply with fundamental rights.

While the HRA provides accessibility and clarity regarding rights enforcement, equivalent rights exist under common law, such as the right to life and freedom from torture. Repealing the HRA for a ‘British Bill of Rights’ remains a debated possibility.

Question 28

What barriers to access to justice exist in the UK legal system?

Answer 28

Key barriers include:
- Insufficient funds to cover legal fees and limited free help (pro bono).
- Cuts to legal aid have made it difficult for many to secure representation, leading to the rise of fee-charging McKenzie Friends.
- Increased self-representation due to legal aid cuts can result in longer cases and a higher risk of unjust outcomes.

Starting a case incurs court fees, which can deter claimants, especially if they risk paying defendant costs upon losing. The case of R (Unison) v Lord Chancellor highlighted that fees in employment tribunals were unlawful, obstructing access to justice. The Supreme Court reaffirmed that access to courts is a constitutional right inherent in the rule of law and essential for societal benefit.

Question 29

What are the implications of unfair legal and adjudicative processes for the rule of law?

Answer 29

The right to a fair trial is essential, enshrined in Article 6 of the ECHR. Threats to this right include:
- Fast-track extradition treaties that prevent UK courts from reviewing evidence.
- The use of Anti-Social Behaviour Orders that blur civil and criminal law.
- Secret courts and evidence in terrorism cases that hinder the accused’s ability to challenge suspicions, undermining fairness in trials.

Question 30

How do fees and costs act as a barrier to the justice system and achieving the rule of law?

Answer 30

• Starting a case as a claimant incurs costs (court fees).
• The risk of having to pay a defendant’s costs if a claimant loses deters individuals from pursuing claims that may not succeed.
• This issue is significant in areas excluded from legal aid since the Legal Aid Sentencing and Punishment of Offenders Act (LASPO) 2012.

Example - In R (Unison) v Lord Chancellor [2017] UKSC 51, the Supreme Court found that the Employment Tribunals and Employment Appeal Tribunal Fees Order 2013 was unlawful under domestic and EU law as it obstructed access to justice.
The Supreme Court affirmed that the constitutional right of access to the courts is inherent in the rule of law.

Courts are established to ensure that the law is applied and enforced; unimpeded access is essential for this function.

This right of access is valuable to society as a whole, not just to individuals.

Any hindrance to this right by the executive requires clear authorisation by Parliament.

Question 31

How does government criticism of judges impact the rule of law?

Answer 31

Government criticism of the judiciary can be detrimental to the rule of law. Lord Hailsham noted that judges exercise constitutional powers to hold officials accountable, and political criticism undermines their authority.

Public officials should refrain from commenting on court rulings to preserve judicial independence and uphold the rule of law.

Question 32

What challenges does automated decision-making pose to the rule of law?

Answer 32

Automated decision-making, especially with AI, raises concerns about transparency, accessibility, and certainty in the legal system.

As seen with post-Brexit applications for leave to remain, individuals may struggle to appeal decisions made by algorithms due to a lack of understanding about the factors considered and the reasoning behind outcomes.

Question 33

What role do ethical standards in the legal profession play in upholding the rule of law?

Answer 33

Lawyers play a crucial role in maintaining the rule of law. Their principal duty is to the court, not just their clients, which supports the integrity of the judiciary. The honesty and integrity of legal professionals foster public confidence in justice, thus reinforcing the rule of law.

Question 34

Provide a summary of the challanges which the rule of law faces.

Answer 34

The rule of law in the UK Kingdom is undermined (actually or potentially), by the following:

• Poorly drafted and inaccessible legislation
• Poorly reasoned and confusing judgments of the Senior Courts
• Unfettered government discretion
• Unequal access to justice
• Inequality before the law
• Arbitrary use of draconian government powers
• Government interference with judicial decision-making
• Automated decision-making