Chapter 3: Rule of Law Flashcards
What is rule of law
Lord Bingham - the core of existing principles that all persons and authorities within the state, whether public or private should be bound by and entititled to benefits of laws publicly and prospectively promulgated and publicly administered by courts
Whcih British academics talk about ROL?
- Lord Bingham
- A.V Dicey
- Raz
What are the view points that the different academics have for ROL
A “content-free” (procedural) rule of law
A “content-rich” (content of law) rule of law
What are the role of judges in ROL
Judges comply with the ROL by recognition of fundamental human rights and liberties through common law, by means of application of tort law and statutory interpretation through principle of legality and construing ouster clauses
What act fortified judicial power
Human Rights Act 1998 sections 2,3,4,6
What is the role of Parliament
Parliament supremacy allows parliament to create and remove legislations if they see fit
It has the power to safeguard and weaken ROL. They could even choose to legislate contrary to fundamental principles of human rigths and ROL
What is the Lord Chancellor’s role
Section 1 of the Constituional Reform Act 2005
- reforms don’t affect the constituional principles or the LC
Section 17(1)
- LC is to respect the ROL and defend the independence of the judiciary
What are the 5 elements of the concept of UK constitutionalism
Not the same as constitution
- Parliamentary supremacy - Concentrates on the ultimate public power in one institution
- Representatitve governrment - government organised by majority rule (reflective of people’s views)
- Limited govnerment - practices and power is determined by constitutional principles (rule of law, seperation of powers, respect for individual rights)
- Political accountability - government (executive) is held account by parliament for its policies and conduct
- legal accountarbility - government is held account by an independent judiciary through the principal of of judicial review
What are the 8 sub-rules of Lord Bingham’s principles for rule of law
- law must ber accesible and so far as possible intelligible, clear and predictable
- Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion
- Law is equally applied to all, unless objective differences require differenciation
- All ministers and officers must exercise power in good faith, fairly, for the purpose it was given, without exceeding their powers
- Law must be afford adequate protection of fundatmental rights
- Means must be provided for resolving should be inexpensive and without undue delay
- Adjudicative procedures proivided by the state should be fair
- ROL requires compliance by the state with its obligations in international law as in national law
LB thinks that ROL should be a mix of content and procedure
What is the ideology that Raz employs and what are his 7 principles?
- All laws should be prospective, open and clear
- Laws should be relatively stable, the making of particular laws (legal orders) should be guided by open, stable and clear and general rules
- Independence of the judiciary must be guaranteed
- procedural fairness in decision making by public officials
- courts should have review powers over the implementation of other principles
- Courts should beeasily accesible
- Discretion of crime preventing agencies should not be allowed to exploit the law
Raz argued for a negative, content free version of the ROL
What is the book of A.V Dicey. What are his 3 postulates?
- No man is punishable or can be made to suffer in body or goods unless they made a dinstinct breach of law - absolute supremacy or predominace of reuglar law (staute is king)
- No man is above the law - no matter rank or condition
- General principles of the constititution are the result of judicial decisions determining the right of private persons (common law protects individual liberties)
A.V. Dicey argues for a procedural ROL
How did Dicey describe the British Constitution?
Legislature and Judiciary are the ‘twin pillars’, which work side by side to build the constitution
Are Dicey’s first postulates met
- Presumption that parliament does not intend legislate retrospectively (Article 7 ECHR)
- GCHQ - Courts will not hesitate to inquire into the invocation of the powers of the roayal prerogative, unless matters relating to national security are non-justiciable
- R v Secretary of State for the Home Department Ex Parte Fire Brigades’ Union and others [1995] - execuitve’s royal prerogatives are suspended by the Act of Parliament
- (Miller & Ors) v Secretary of State for Exiting the Euoprean Union [2017] SC (Miller 1) - If royal prerogative will not be valid if it clashes with statute, or if its exercise has effect of changing law of the land
- R (on the Application of Miller) v Prime Minister [2019] SC (Miller 2) - exercise of royal prerogative (Boris Johnson) prorogued parliament and was held to be null and void
Council for Civil Service Unions v Minister for Civil Service [1985]
QCHQ
Courts have the right to inquire into the invocation of powers of the executive (royal prerogatives) unless matters regarding national security are non-justiciable
Meaning some people have justifiable means to be subject by the law
R (Miller & Ors) v Secretary of State for Exiting the European Union [2017] SC
Miller 1
Ruled that royal prerogatives cannot be valid if it clashes with statute or if it changes the law of the land.
Facts: Executive overstepped their powers, where they tried to leave the EU
R (on the Application of Miller) v Prime Ministrer [2019] SC
Miller 2
Facts: Boris Johnson advised the Queen Elizabeth II to prorogue parliament for almost 1/2 months
Queen under convention, was legally forced to follow the decision
Held: vide an Order of Council; was justiciable and the said prorogation was held to be null and void and to no legal effect
Are Dicey’s second postulate observed
- Bill of Rights 1689 affirmed monarchy was subject to law
- M v Home Office [1994] - Home secretary (minister) held liable for contempt of court by failure to abide order by High Court
- Crown Proceedings Act 1947 - Executives became liable to be sued for their wrongful acts
- Council for Civil Service Unions v Ministers for Civil Service [1985] (GCHQ)- Courts can’t review prerogative acts if it invovles matters of policy/national security.
Showing that certain people who enjoy advantages, immunitites, and special powers
Lord Bingham said law is equal to all, unless justified
Are Dicey’s third postulate observed
- Rights of individuals are secured by ordinary remedies of private law, especially tort law or public law
- citizens whose freedoms were infringed can seek a remedy in the courts and do not need to rely on constitutional guarantees (fundamental potlical freedoms)
freedom of person, freedom of speech, freedom of association
What is the role of the judiciary in protecting citizens under ROL
Judicial review of administrative action, even to the executives exercising royal prerogative
What are the 4 elements that are grounds for judicial review
- illegality (not following statute)
- irationality (making unreasonable decisions)
- procedural impropriety (Right to be earned & non-biased)
- proprtionality in the European context (exercised within power proportionately)
How does Parliament invconvenience the courts?
Burmah Oil Company v Lord Advocate [1965]
Parliamentary sovereignty leads to parliament, not the courts. Having the final say in validility in Acts of Parliament
Parliament can aslo enact legislation to abolish/limit fundamental rights recognised in common law. inconveniencing court’s decisions by retrospective legislations
R v Davis
HOL held that the trial judge infringed the right for fair trial; and had no right to make an anonymity order for the witness testifying
Accused, Davis appealed on the ground that he did not receive fair trial, the act of the judge prevented a cross examination
Parliament then passed the Criminal Evidence (Witness Anonymity) Act 2008 allowing judges to make wide range of anonymity orders
What are the 3 critisms that common law faces
- Unable to deal with situations where a statute limits or abolishes a right previously recognised by courts
- The HRA 1998 and the creation of new procedures for protecting those rights, have fallen short of a Bill of Rights
- Common law only provides protection in certain circumstances (Entick v Carrington)
it is inadequate for protection of socio-economic rigths which are better suited politfcally and for Parliament
- Erratic nature of judgements
HOL failed to protect the right to liberty under the defence regulations that permitted detention without trail - gave discretion to Home Secretary (Liversidge v Anderson)
HOL refused to apply the rules of natural justice when ministers claimed** national security was at stake ** (Council for Civil Service Unions v Minister for the Civil Service [1985])
What cases infringed the HRA 1998 - Section 4 and Unlawfullness of Control order under Prevention of Terrorism act 2005
- Anti-Terrorism, Crime and Disorder Act 2001
Parliament dorgated from the HRA by ordering detention without trial. Home Secretary issued a certificate that if a person was believed to be a terrorist, they would be unable to enter/remain in UK. If deportation is not possible then they would be subject to Article 3. So they ended up being detained without trial.
- A (FC) v Secretary of State for Home Dept. [2004]
(continuing from ^ case) Lords agreed that deogation was necessary, but also said it was discrimninatory
Political pressure caused a repeal by the prevention of Terrorism Act 2005
What is an ouster clause
A clause in statute that exclude the jurisdiction of the courts
What are points for statutory interpretation
- Parliament cannot deny access to courts, however it can deprive fundamental common law rights but must be in clearest of terms (Chester v Bateson [1920])
- Courts willl construe/look at ouster clauses (exclude jurisdiction of the court) against judicial review very narrowly
- where there is conflict between freedom of the individual and any other rights or interest, freedom of hublest citizen shall prevail
What are 2 cases that the courts looked at ouster clauses very narrowly
- Anisminic v Foreign Compensation Commission [1969]
- R (Privacy International) v investigatory Powers Tribunals and others [2019] UKSC 22
these are cases where the courts interpreted ouster clauses
R v Secretary of State for Home Department Ex Parte Pierson [1988] HL
Facts: John Pierson convicted of murder. Home secretary had power to determine how many years he had to serve before releasing a liscence to let him off.
Perison sent for 15 years, but then Minister deicided 20 years should be the tarrif
Held: HOL said that Home Secretary has no legal power to increase the tarrif retrospectively
R v Secretary of State for Home Dpt. Ex Parte Simms [1999]
SSHD
If parliament wishes to legislate contrary to fundamental principles of human rights, they have to do it clearly.
Cause if it is ambiguous then human rights would still remain and restrain the legislation
R (on the application of Cart) v Upper Tribunal (Secretary of State and Ors [2011] Lady Hale
Stated “… the scope of judicial review is an artefact of the common law whose object is to maintain the rule of law…”
R (Privacy International) v Investigatory Powers Tribunal and others [2019] UKSC 22
Important case
Can’t give binding effect to clauses that excludes/ouses the courts powers whether for excess or abuse of jurisdiction, or error of law
What did Lord Carnwath say about R (Privacy International) v Investigatory Powers Tribunal and others [2019] UKSC 22
- Relationship between the Parliament and courts is governed by ROL, and the constitutional protection is done by judicial review
- The courts are the ones who determine the limits (not parliament) set by the ROL to the power to exclude review/ouster clause
