Chapter 7: Rule of Law

Question 1

1.1 Meaning of the ‘rule of law’

Answer 1

The rule of law is a very broad concept, but one which is fundamental to your understanding of public law principles.

• In the UK, the rule of law has arguably become a more significant and constitutionally important concept in recent years, as illustrated by direct reference to it as a ‘constitutional principle’ in s 1 of the Constitutional Reform Act 2005.
• Unsurprisingly, there is no definition of what is meant by the ‘rule of law’ in the Act. Instead,
  the drafters left it to the judges to interpret what the term means in the context of each individual case.
• In his highly influential book The Rule of Law (Allen Lane 2010), Lord Bingham defined the principle as follows: ‘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 made, taking effect (generally) in the future and publicly administered in the courts.’

Question 1

1.2 ‘Formal’ and ‘substantive’ schools of thought

’Formal’ (eg Prof. Joseph Raz)

Answer 1

Legal procedure must be clear and
certain.
* The law must be prospective (ie law should not be applicable retrospectively).
* The law must be clear.
* It must be applied equally.
* The 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.

Question 2

’Substantive’ (eg Ronald Dworkin)

Answer 2

• The same formal requirements apply, but a moral component is also necessary.
• Without respect for fundamental human rights and freedoms, a rule of law society cannot be said to exist.

Question 3

1.3 The rule of law and the separation of powers

Answer 3

The relationship between the rule of law and the separation of powers is a very important one. It relates to the judiciary’s perceived role a ‘guardians’ of the rule of law and consequently to the contentious question of how far the courts can pursue this role in actively developing and shaping the interpretation of the law.

Question 4

Doctrine of separation of powers is intrinsic to the rule of law

Answer 4

The doctrine of the separation of powers is intrinsic to the rule of law, because the principle
requires that the executive is prevented from exercising its power arbitrarily.

The principle of the rule of law has a long heritage. Advocated by Aristotle in ancient Greece as a protection against tyranny, it found its way through medieval theologians, such as Sir Thomas Aquinas, into the core of modern liberal thought. It remains a fundamental principle of all modern liberal and democratic societies.

‘It is better for the law to rule than one of the citizens […] so even the guardians of the laws are obeying the laws.’

Question 5

Content of the Rule of Law

Answer 5

In liberal democracies, is recognised to be the ‘rule of law’:
* The law should be accessible, clear and predictable.
* Legal issues should ordinarily be resolved through legal processes and not through the
exercise of administrative discretion by government officials.
* The law should apply equally to all.
* The law should afford adequate protection for human rights.
* There should be access to justice in the courts without inordinate delay or expense.
* Public officials, including ministers, should exercise the powers they have been granted in good
faith and within the limits of those powers.
* Legal and adjudicative processes should be fair.
* The state should comply with its obligations under international law.

Question 6

1.5 The requirement of legality

Answer 6

Any government must act in accordance to the rule of law

This requirement can be broken down into the following key points:

• Any government interference with persons or property must be sanctioned by a legal authority (whether in statute or the common law), giving an identifiable power to perform the action in question – this power must be exercised in a lawful manner. See the important historical case of Entick v Carrington (1765) 19 St Tr 1029.
• The presumption, when interpreting statutes, is that Parliament cannot be seen to have
  intended to restrict important rights and freedoms unless this is made clear. This has come to be known as the legality principle – see the later section on ex p Simms.
• Many public (governmental) bodies are incorporated by statute and so statutory provisions will define and limit their legal capacities.
• The independence of the judiciary is essential in this respect, because the courts determine whether government power is lawfully exercised, ie has been exercised within the powers given to it.

Question 7

1.6 Judicial review and the rule of law

Answer 7

Judicial review is the mechanism by which the rule of law is protected - and arbitrary use of government power prevented - in the UK. The Administrative Courts will consider whether an action was lawful, in accordance with the powers granted and the rights protected by:

1. Legislation: As you are aware, the court cannot review primary legislation. However, the court can assess whether any public body has complied with the provisions in an Act.
2. Common law and prerogative power. The court can assess whether the government has breached a common law constitutional right
   (eg the right to protest) or has lawfully exercised a prerogative power.

Question 8

1.7 The rule of law and parliamentary sovereignty (a check on executive power)

Answer 8

As you will see, the rule of law operates as a check on executive power by requiring that the
executive acts only on the basis of lawful authority, which is ultimately granted by Parliament
(except in the case of prerogative powers).

You will also see that the principle of the rule of law is deployed by the judiciary to restrict the effect of legislation, created by Parliament, in the interests of protecting individual liberties and rights. This can be achieved through judicial interpretation of statutory provisions and by using common law (and ECHR) principles of justice and fairness.

Question 9

Key case: R v SoS Home Department ex parte Simms [2000] 2 AC 115

Answer 9

In this case Lord Hoffmann observed, as part of his ‘legality principle’, that Parliament could, if it
wished, enact laws which undermine rights, but the language of the legislation must be completely clear:

Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. 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

Question 10

1.8 Legal certainty

Answer 10

Legal certainty is another fundamental feature of the rule of law. Legislation should be clearly drafted but this is not always the case. Lord Bingham identifies the
‘torrent of legislation’, particularly in the criminal field, as being a concern from the perspective of
the rule of law.

He quotes a judge describing the Criminal Justice Act 2003 as ‘deeply confusing’ and writes: ‘legislation of this kind poses real problems of assimilation and comprehension, even to senior and seasoned professionals’

Question 11

Legislation should apply to future actions, not retrospectively to past actions

Answer 11

Another important aspect of this is that legislation should apply to future actions, not retrospectively to past actions. Uncertainty is created if one does not know whether the law may change so that something you do in the present, which is currently lawful, could become illegal
and punishable at a later date.

Question 12

Impact on new law

Answer 12

However, retrospectively applicable legislation is sometimes passed when Parliament wishes to
legislate to overturn a decision of the courts – as it is constitutionally entitled to do – or to put an
accepted procedure on a statutory footing. What matters is not that the law changes; it is the impact of the new law on the person who acted under the old law that is significant.

Question 13

1.9 Examples of retrospective legislation

1.9.1 War Damage Act 1965

Answer 13

This Act overrode the judgment of the House of Lords in Burmah Oil Co Ltd v Lord Advocate [1965]
AC 75. Ultimately, therefore, the government was not obliged to pay damages for property destroyed or damaged in the war, as the court had previously ordered.

Question 14

1.9.2 War Crimes Act 1991

Answer 14

This Act 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

Question 15

1.9.3 Jobseekers (Back to Work Schemes) Act 2013

Answer 15

This Act overrode 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.

Question 16

1.10 Authority for governmental power

Answer 16

As we have seen, the courts’ role is to ensure that governmental bodies stay within the boundaries of what is allowed by Parliament through legislation (or what is recognised by the common law as a prerogative power). In its simplest form, this review will determine if an executive power exists or not – this was the fundamental point in Entick v Carrington back in the mid-18th century.

Question 17

R v Somerset County Council, ex parte Fewings [1995] 1 WLR 1037 (Using Power for intended purpose)

Answer 17

There are other limitations on the use of such power, however, not merely determining whether it
exists. This will be explored in more detail in materials on judicial review but the case of R v Somerset County Council, ex parte Fewings [1995] 1 WLR 1037 illustrates that such limits can, for instance, apply to the need for governmental bodies to use their power for their intended purpose.

Question 18

Local Government Act 1972: Benefit, Improvement or Development

Answer 18

The relevant power in this case was given by the Local Government Act 1972, which allowed councils to manage common land for the ‘benefit, improvement or development‘ of the area. Somerset Council decided to use the power to ban stag hunting for ethical reasons.

The court found that the power could only be used to manage the deer herd, or to preserve or enhance the amenity of the area. The view 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’.

Question 19

1.11 Discretionary power

Answer 19

Legislation cannot and arguably should not try to prescribe a single lawful course of action in every situation. Some matters have to be left to the discretion of the executive (the decisionmaker).

Question 20

Legislation confers discretion

Answer 20

Legislation therefore often confers a ‘discretion’ (ie a choice) on the relevant decision-maker) as to how to exercise the powers they have been given. In the post-war period particularly, the volume of discretionary power given to the executive has increased notably.

Question 21

Suspicion of discretionary power

Answer 21

Rule of thinkers, such as Dicey, have a natural suspicion of discretionary power because they believe that less tightly restricted power gives the executive greater potential to use such power in an arbitrary way, which is anathema to them.

Question 22

Key function of judicial review: control the exercise of discretionary power

Answer 22

Therefore, an important aspect of the rule of law and one of the key functions of judicial review is
to control the exercise of discretionary power granted by legislation. If a discretionary power has been given, the courts can put the decision-maker to test to see that it has been exercised properly.

Question 23

1.11.1 Changing judicial attitudes to discretion

Answer 23

The willingness of the judiciary to intervene in the government’s exercise of its statutory discretionary power increased considerably in the second half of the 20th century.

Question 24

Judicial deference

Answer 24

In the immediate aftermath of the Second World War judicial deference to the executive and other public authorities was still the norm, even where the statutory purposes were defined with close precision. In cases involving public control over land use and housing accommodation. One could point to dicta to the effect that an order shown to be perverse or otherwise lacking in any evidentiary support might be held ultra vires because the competent authority could not be deemed to have been genuinely satisfied that it was appropriate for a purpose sanctioned by legislation.

Question 25

Amplitude of the discretionary power

Answer 25

Yet if persons claimed to be aggrieved, they invariably failed in the courts; and the judgments persistently laid a heavier emphasis on the amplitude of the discretionary power than on the need to relate it to the purposes of the Act. The incantation of statements denying the absoluteness of administrative discretion in such cases was little more than a perfunctory ritual to satisfy the consciences of the judges.

Question 26

Key case: Liversidge v Anderson [1942] AC 206

Answer 26

This case was decided during the Second World War and illustrates the prevailing deferential judicial attitude of the time. The Home Secretary was empowered under Reg.18B of the Defence Regulations 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, which the Home Secretary had not met, as no evidence of his intentions had been shown

Question 27

Not acting in good faith

Answer 27

The majority of the House of Lords disagreed and accepted the Home Secretary’s interpretation of the regulation. They held that there was no objective requirement, enabling him to take this action, as long as his belief was an honest one. Thus, the courts could not inquire into the grounds for the detention, unless there was evidence to suggest that the Home Secretary had not acted in good faith

Question 28

Lord Aktin: More Executive-Minded than the Executive

Answer 28

In the minority was Lord Atkin. Famously accusing the majority of being ‘more executive minded than the executive‘, he concluded that, had Parliament wished to give the Home Secretary unlimited discretion, it would not have qualified the grant of power with the word ‘reasonable’. In his view, the word purported the existence of facts or a state of facts; therefore, the Home Secretary needed to show some evidence for his justification

Question 29

Key case: IRC v Rossminster Ltd [1980] AC 952 Reasonable cause to believe

Answer 29

This case concerned the use by the Inland Revenue Commissioners (IRC) of powers to enter and search premises, and seize documents, if they had ‘reasonable grounds‘ for suspecting an offence and ‘reasonable cause to believe‘ that the items seized would be required as evidence in relation to tax fraud. Suspecting tax fraud, the IRC officials obtained search warrants, entered Rossminster’s premises, and seized documents without informing its directors of the particulars of what they suspected.

Question 30

Lord Denning MR in the Court of Appeal

Answer 30

In notable contrast to Lord Denning MR in the Court of Appeal, the law lords did not find that the IRC’s actions were unlawful for lack of specificity about the details about the fraud suspected. This was because no such specifics were expressly required on the face of the relevant Act.

Question 31

Reasonable cause to believe

Answer 31

Significantly, though, they found that the use of the phrase ‘reasonable cause to believe‘ was a question of objective fact, to be tried on evidence. Lord Diplock stated: ‘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’.

Question 32

1.12 Equality before the law

Answer 32

Finally, the rule of law requires that the law applies equally to everyone, as far as possible. While the principle generally holds true, especially in the context of holding the government to account for its actions, there are some exceptions: * The monarch is, arguably, above the (criminal) law. * Judges in higher courts are immune from civil litigation for acts done within their official jurisdiction. * Parliamentary privilege – MPs cannot be sued for what they say in Parliament. * Diplomatic immunity. * Children are not subject to the same laws as adults. * Are there now barriers to meaningful access to justice, caused by cuts to legal aid funding over the last decade or more?

Question 33

1.13 Summary

Answer 33

The rule of law is a broad concept but is very well defined, in modern terms, by Lord Bingham’s book, The Rule of Law. * There are formal and substantive schools of thought on the rule of law. * The requirement of legality means that all governmental actions must be carried out within the law. * Legal certainty is a key feature of the rule of law, relating closely to the inadvisability of retrospective law. * Judicial review is fundamental to upholding the rule of law. * Discretionary powers must be exercised within the law to prevent governmental power being used in an arbitrary and discriminatory way. * Equality before the law is a key feature of the rule of law but not always borne out in practice.

Question 34

2. The rule of law - tensions 2.1 Administrative discretion

Answer 34

As we have seen, the administrative discretion given to government by Parliament (via legislation) creates one of the most acute potential forms of tension with the rule of law.

Question 35

Lord Bingham explains:

Answer 35

In practice, countless decisions are made every day by administrators charged with the duty of running our complex society, as, for example, on the allocation of housing to the homeless, the allocation of school places, the granting of planning permission, the granting of leave to enter the country, and so on. What matters is that the decisions should be made on stated criteria, that they should be amenable to legal challenge, although a challenge is unlikely to succeed if the decision was one legally and reasonably open to the decision-maker.

Question 36

2.2 Access to justice

Answer 36

The most obvious barrier to obtaining justice is not having enough money to pay legal fees, and not being able to secure help for free (pro bono). 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. This has led to a significant increase in self-representing ‘litigants in person’ which means that cases take longer, and the risk of unjust outcomes increases

Question 37

McKenzie Friends

Answer 37

It has also led to unwelcome developments such as ‘McKenzie Friends’ (non-legally qualified and unregulated advisors) charging a fee for supporting someone in court – a service that was traditionally voluntary. In 2019 the Chair of Parliament’s Justice select committee called for fee-charging McKenzie Friends to be banned after the 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.

Question 38

2.3 Fees and costs

Answer 38

Another closely related barrier to justice in the civil courts is that starting a case as a claimant costs money (in court fees). Sometimes too the risk of having to pay a defendant’s costs (if a claimant loses) deters people from pursuing claims which may not succeed.

Question 39

Key case: R (Unison) v Lord Chancellor [2017] UKSC 51

Answer 39

In this case, the Supreme Court found that the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (a statutory instrument which introduced a fees regime for bringing claims in employment tribunals and the Employment Appeal Tribunal) was unlawful under both domestic and EU law, as it effectively prevented access to justice.

Question 40

C onstitutional right of access to the courts was inherent in the rule of law

Answer 40

The Supreme Court reiterated that the constitutional right of access to the courts was inherent in the rule of law. Courts existed in order to ensure that the law was applied and enforced. In order for the courts to perform that function, people, in principle, had to have unimpeded access to them. That right of access was valuable to society as a whole and not just to the particular individuals involved. This right had long been recognised and any hindrance or impediment to that right by the executive required the clearest authorisation by Parliament.

Question 41

2.4 Equality before the law

Answer 41

The principle that the law should apply equally to everyone is qualified by Lord Bingham in the following terms: ‘save to the extent that objective differences justify differentiation’.

Question 42

The differentiation must be relevant to the distinction

Answer 42

For example, young children are less mature than older children and adults. This is an objective difference which justifies different treatment under the law. (For instance, the age of criminal responsibility in the UK is 10.) However, as Lord Bingham explains, the differentiation must be relevant to the distinction.

Question 43

2.4 Equality before the law

Answer 43

* The law properly allows a non-British national with no right of abode in the UK to be deported. It does not allow a British national to be deported. The differentiation (deportation) is relevant to the distinction (national/non-national). * In contrast, it was not compatible with the rule of law to allow (via now repealed provisions in the Anti-terrorism, Crime and Security Act 2001) non-nationals suspected of international terrorism to be detained indefinitely without charge, yet not apply the same restriction to nationals suspected of the same conduct. The distinction (based on nationality) was not relevant to the differentiation (indefinite detention or not), given the recognised involvement of UK nationals in terrorism.

Question 44

2.5 Inequality of application

Answer 44

Schedule 7 of the Terrorism Act 2000 is described by Liberty as a ‘breathtakingly broad and intrusive power to stop, search and hold individuals at ports, airports and international rail stations’. The police, customs or immigration officer need not have any grounds for suspecting the person has any involvement in terrorism or any criminal activity at all. Under Schedule 7, the individual may be: * Detained and questioned for up to nine hours. * Searched and have their belongings retained for up to seven days.

Question 45

Right to free legal representation

Answer 45

The person has no right to a free legal representation while detained at the port or border (unlike someone arrested and taken to a police station under normal police powers). It is a criminal offence if the person fails to answer questions or obstructs the exercise of the functions under the Act. If detained at a police station, officers can take the person’s biometric data – including fingerprints and DNA.

Question 46

Liberty UK Statement

Answer 46

According to Liberty: ‘Recent research suggests Asian passengers are 42 times more likely to be stopped under schedule 7 than their white counterparts’. In the previous example (Schedule 7 of the Terrorism Act 2000), on the face of the law the power applies equally to all people travelling through ports and airports. However, it is strongly arguable that the very wide discretion given to officers under Schedule 7 undermines the rule of law in its application, given that the powers are used disproportionately against particular racial groups. The legislation does not purport to accord different treatment to different groups of people, but the way it is applied does do so, without there being any relevant distinction between those people.

Question 47

2.6 Human rights in the UK – repeal of the HRA?

Answer 47

The European Convention on Human Rights (ECHR) is the main source of UK human rights law. ECHR rights are part of UK law, as they have (very largely) been incorporated into our domestic legal system by s 1 of the Human Rights Act 1998 (the HRA).

Question 48

HRA puts fundamental rights on a statutory footing

Answer 48

It is important to note, however, that, while the HRA puts fundamental rights on a statutory footing and obliges public authorities to comply with them, there are long-standing and developing equivalent rights under the common law, for example: the right to life; the prohibition of torture; no punishment without law; the right to freedom of expression and to public protest.

Question 49

HRA provides greater clarity and certainty

Answer 49

Nevertheless, the HRA provides greater clarity and certainty about the circumstances in which rights may be engaged and a higher degree of accessibility to mechanisms for their enforcement.

Question 50

Repeal of the HRA

Answer 50

The repeal of the HRA has been urged by some politicians for a number of years. The Bill of Rights Bill, which had its first reading in the Commons (in 2022), proposed some substantial changes to the framework for protecting rights in the UK, which has operated since 2000. For those who subscribe to a substantive, rights-based model of the ideal, the Bill would represent a significant undermining of the rule of law, if it passed into legislation. However, it is by no means certain that the Bill will progress.

Question 51

2.7 Unfair legal and adjudicative processes

Answer 51

The right to a fair trial is enshrined in Article 6 of the ECHR and in the common law of the UK. Lord Bingham identified the right to a fair trial as ‘a cardinal requirement of the rule of law’. Liberty has identified the following ‘significant threats’ to the right to fair trial in recent years: * The UK has signed up to ‘fast-track’ extradition treaties which prevent UK courts from considering whether there is evidence to justify the extradition request. * The line between criminal and civil law has been blurred by the widespread use of ASBOs and other civil orders

Question 52

Closed Material Proceedure

Answer 52

A parallel system of secret courts and secret evidence has been developed, under which those accused of terrorism can be left ‘languishing on control orders [or their modern equivalents] for years on end without being told why’ and without being able to challenge the suspicions against them. This allows for one party to present sensitive evidence to the judge which other parties to proceedings cannot examine. It also allows the court to appoint specially vetted counsel to communicate the interests of a party without risking the exposure of ‘sensitive’ national security details to that party.

Question 53

2.8 Non-compliance with international law

Answer 53

It is important to bear in mind that international law contains generally agreed-upon standards of executive conduct – for example towards detainees and combatants in the course of military action – which can be regarded as ‘human rights norms’. If a state does not respect these standards, can it claim to be a ‘rule of law state’?

Question 54

Joint Intelligence and Security Committee (JISC)

Answer 54

In June 2018, the parliamentary Joint Intelligence and Security Committee (JISC) identified instances of government complicity in the unlawful treatment of detainees in its ‘Report on Detainee Mistreatment and Rendition’. The report identified a worrying lack of clarity in the government’s guidance on: the interviewing of detainees overseas and the exchange of intelligence on detainees in order to ensure that our Security and Intelligence Agencies are not, and will not be, involved in torture or mistreatment in the name of the UK.

Question 55

Attorney General Dominic Grieve QC MP, Chair of the JISC

Answer 55

He described the experience of trying to persuade government officials that laws and rules were ‘there to help them’ and explained how ‘cutting corners’ and 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.

Question 56

2.9 Government criticism of judges

Answer 56

Governments have no more appetite for losing cases than anyone else, perhaps even less, since they believe themselves to be acting in the public interest, and, in addition to the expense and disappointment of losing, they may be exposed to the taunts of their political opponents […].

Question 57

Government criticising governments

Answer 57

While this statement has undoubtedly been true for as long as the judiciary has limited the government’s exercise of power, there has been a trend in recent years for the government to criticise the judiciary overtly. As Prime Minister, Boris Johnson, went as far as to say that he ‘profoundly disagrees’ with the UKSC’s judgment in Miller (No.2)

Question 58

Lord Hailsham

Answer 58

Lord Hailsham reminds us that ‘in properly exercising judicial power to hold ministers, officials and public bodies to account, the judges usurp no authority. They exercise a constitutional power which the rule of law requires that they should exercise’. It is arguably detrimental to the rule of law for government officials to express views on matters which are outside their constitutional remit, once the court has definitively ruled – what do you think?

Question 59

2.10 Developing challenges

Answer 59

Challenges to the rule of law change and develop with the course of history. In addition to the proposed repeal of the HRA, two challenges of immediate – and likely increasing – relevance, are the continued legal fall-out from Brexit, and the increased automation of public decisionmaking.

Question 60

2.10.1 EU Withdrawal

Answer 60

The EU Withdrawal Act creates ‘Henry VIII powers’ which allow government to change primary legislation by statutory instrument (SI), without further recourse to Parliament. In October 2019 the government withdrew one such SI following a legal challenge by the Public Law Project (PLP). The SI empowered government officials to amend VAT on customs and excise law by public notice - not by law - following Brexit

Question 61

Jo Hickman, PLP (Public Law Project) director

Answer 61

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. The Statute of Proclamations 1539 was repealed after the death of Henry VIII for good reason.

Question 62

2.10.2 Automated decision-making

Answer 62

Artificial Intelligence and algorithm-based decision-making plays an increasing role in public administration. The former Attorney General, Dominic Grieve, has raised the example of post-Brexit online applications for leave to remain in the United Kingdom: 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? While automated decision-making may have advantages in terms of speed and saving expense, its alignment with the rule of law is questionable, as it undermines the principle of judicial transparency, accessibility and certainty

Question 63

2.11 Parliamentary sovereignty

Answer 63

The final potential source of tension with the rule of law to be considered is the principle of parliamentary sovereignty itself. As we shall see in other materials, this remains the dominant constitutional principle in the UK.

Question 64

In relation to the executive

Answer 64

When upholding the rule of law, the judiciary is doing so in relation to the executive – it is attempting to scrutinise the legality of what governmental bodies are doing to ensure that they act in accordance with the law.

Question 65

Parliamentary Supremacy

Answer 65

Parliament can pass any law it wishes. The ultimate question, therefore, is 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?

Question 66

Jackson v Attorney General [2005] UKHL 56.

Answer 66

This possible eventuality was addressed (in obiter discussion) by the law lords in the very significant constitutional case of Jackson v Attorney General [2005] UKHL 56.This will be considered in greater detail in the materials on parliamentary sovereignty.

Question 67

2.12 Summary

Answer 67

The Rule of Law in the UK is undermined (actually or potentially), by the following: * Unfettered government discretion * Unequal access to justice, as reflected in case law in which the legality of court fee systems has been challenged * Inequality before the law * Arbitrary use of draconian government powers * Government criticism of judicial decision-making * Changes in the law following Brexit * Automated decision-making * On a much broader scale, the principle of parliamentary sovereignty

Question 68

3 Limits on executive power 3.1 Requirement of legality

Answer 68

The principle in Entick v Carrington (1765) 19 St Tr 1029, that governmental power can only be exercised on identifiable authority and in a lawful manner, is fundamental to the exercise of restraint on the power of the executive. The separation of powers underpins the two mechanisms for that restraint.

Question 69

3.1.1 Control by Parliament

Answer 69

Parliament decides whether or not government proposals become law, and it passes laws which gives the executive powers but within regulated restrictions.

Question 70

3.1.2 Restraints by the courts

Answer 70

The executive’s ‘ultra vires’ actions are restrained by judicial review. The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based. (Per Lord Hope in Jackson v AG [2005] UKHL 56)

Question 71

3.2 Protection of ‘Convention Rights’

Answer 71

One of the principal sources of legislative restriction over the use of executive power is the Human Rights Act 1998. The Act was passed by Parliament to give effect in UK law to rights and freedoms guaranteed under the European Convention on Human Rights.

Question 71

The Human Rights Act

Answer 71

This means that the HRA is the principal source of protection against government interference with human rights. The detail of the HRA is covered in separate materials.

Question 71

Key Principles

Answer 71

* If your Convention rights have been breached, you can seek redress in a UK court. The court should attempt to interpret UK law in a way which is compatible with your Convention rights. * Public authorities, eg government departments and the police, must act in accordance with your Convention rights (unless they have a defence). * Parliament will (in most cases) ensure that new laws are compatible with Convention rights.

Question 72

3.3 Proportionality

Answer 72

The concept of proportionality is a very important aspect of the protective function of the ECHR. Some rights under the Convention are absolute rights, such as the prohibition on torture and inhuman or degrading treatment. The state can never restrict absolute rights. Others are limited or qualified rights, which the state can legitimately interfere with in some situations.

Question 73

Qualified Rights (such as privacy and freedom of expression)

Answer 73

Can be interfered with, if: * There is a ‘legitimate aim’ in restricting the right (including public safety, the prevention of crime, the protection of health, national security or the protection of other people’s rights). * The restriction is in accordance with or ‘prescribed by’ law. (Note the rule of law basis of this concept.) * The restriction is ‘necessary in a democratic society’. - This requires that the restriction corresponds to a pressing social need and is proportionate to the aim pursued.

Question 74

Key case: Sunday Times v UK (1979-80) 2 EHRR 245 (Applying the Proportionality Principle)

Answer 74

European Court of Human Rights (ECtHR) in this case illustrates how the proportionality principle is applied. (The case pre-dates the Human Rights Act - today, it could be resolved in the UK.)

Question 75

Negligence Claim & Contempt of Court

Answer 75

Between 1958 and 1961, the drug thalidomide was prescribed as a sedative to some pregnant women; it was later found to cause serious birth defects. A negligence claim was brought against the drug company. In 1972 the Sunday Times published an article which exposed the tragedy. A High Court order was obtained restricting further publication on the basis that it might affect negotiations between the drug company and the victims in the ongoing court case. The court also made it clear that further publication would constitute contempt of court

Question 76

ECHR Judgement: Infringed on Freedom of Expression

Answer 76

The newspaper took its case to the ECtHR, which held that the UK court order had infringed its freedom of expression. The thalidomide scandal was of undisputed public concern and the public and families of victims had a right to know about it. The ECtHR did not accept that there was any greater ‘pressing social need’ which could justify the restriction on the story. The court order and threat of contempt proceedings were a disproportionate restriction, therefore, on the newspaper’s freedom of expression.

Question 77

3.4 ‘Derogation’ from Convention rights

Answer 77

The European Convention on Human Rights recognises that, in certain circumstances, member states may need to take measures which temporarily suspend certain human rights. For example, in times of war, the government may wish to have the power to detain individuals without recourse to judicial procedures. States are therefore permitted to derogate from some, but not all, Convention rights, rendering them inapplicable for a specific period of time.

Question 78

Article 15 ECHR states

Answer 78

1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.

Question 79

Key case: A & Others v Secretary of State for Home Dept [2004] UKHL 56 (The Belmarsh case)

Answer 79

The judgment in this case known as ‘the Belmarsh case’ illustrates how, although the government can derogate from some ECHR rights in defined circumstances, it can only do so in accordance with the law.

Question 80

The Right to Personal Liberty

Answer 80

This case concerned the government’s derogation, under Article 15 ECHR, from the right to personal liberty under Article 5(1) ECHR. It was argued that this derogation was necessary so that the government could initiate a policy of indefinite detention of foreign nationals suspected of being terrorists (who could not be forcibly removed from the UK).

Question 81

Article 15: Public Emergency

Answer 81

In accordance with Article 15, the Home Office therefore had to show both that there was a ‘public emergency threatening the life of the nation’ and that the measures taken were ‘strictly required’; in other words that they represented a proportionate response to the aim behind the anti-terrorism policy.

Question 82

3.4.1 Judgment in A & Others

Answer 82

The House of Lords found as follows: * The decision as to whether or not a ‘public emergency’ exists, within the meaning of Article 15, is largely a political decision, and the court should ‘give great weight’ to the higher competence of the government to assess this factor. (Note, however, a bold dissenting opinion on this point from Lord Hoffmann.) * However, even if it was accepted that there was a public emergency, the measures only targeted people who were non-UK nationals. This was not deemed to be a proportionate and rational response, given that the contemporary threat was equally evident from UK nationals. The measures were also unjustifiably discriminatory (in relation to Article 14).

Question 83

Difference in treatment

Answer 83

What has to be justified is not the measure in issue but the difference in treatment between one person or group and another. What cannot be justified here is the decision to detain one group of suspected international terrorists, defined by nationality or immigration status, and not another.

Question 84

3.5 Constitutional statues

Answer 84

The Human Rights Act 1998 is a clear example of a ‘constitutional statute’, but it is by no means the only one. The modern view is that constitutional statutes are more difficult to repeal than ordinary legislation and so afford an additional level of protection for constitutional rights. (This point will be explored further in the materials relating to parliamentary sovereignty.)

Question 85

Statutes corresponding to definition

Answer 85

Statutes corresponding to this definition have existed for centuries. Some examples are: * Bill of Rights 1689; Act of Settlement 1701 * Parliament Act 1911 * Representation of the People Act 1918 More recent examples include: * European Communities Act 1972 * Scotland Act 1998 * Constitutional Reform Act 2005

Question 86

3.5.1 Constitutional statutes and executive power (relationship between citizen and state)

Answer 86

The broad definition of a ‘constitutional statute’ was first given by Laws LJ in Thoburn v Sunderland City Council [2002] EWHC 195 (Admin) as one which: 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

Question 87

Definition of a constitutional statute (Oxford Journal of Legal Studies)

Answer 87

A constitutional statute is a statute at least a part of which (1) creates or regulates a state institution and (2) is among the most important elements of our government arrangements, in terms of (a) the influence it has on what state institutions can and may do, given our other governing norms, and (b) the influence it has on what state institutions can and may do through the difference it makes to our other norms. Simplifying […], a constitutional statute is a statute that is about state institutions, and which substantially influences, […] what those institutions can and may do.

Question 88

3.5.2 Implied repeal

Answer 88

The doctrine of ‘implied repeal’ is that a new statute, which is inconsistent with an existing statute, will automatically supersede the existing law without there needing to be an explicit provision to that effect – in other words, without the need for ‘express repeal’. Constitutional statutes are different, because the doctrine of implied repeal is now seen not to apply to them. They may be repealed, but only by ‘express words in a later statute or by words so specific that the inference of an actual determination [by Parliament] was irresistible’ (Thoburn, per Laws LJ).

Question 89

Constitutional statutes cannot be repealed/incapable of being altered

Answer 89

The principle that constitutional statutes cannot be impliedly repealed was confirmed in H v Lord Advocate [2012] UKSC 24, in which the Supreme Court found unanimously that the Scotland Act 1998, due to its ‘fundamental constitutional’ status, is ‘incapable of being altered otherwise than by an express enactment‘

Question 90

Partial Restriction

Answer 90

This principle can act as a partial restriction on executive power. If a government wishes to pass legislation inconsistent with the provisions of a constitutional statute, it has to confront the consequences. It can try to repeal the constitutional statute, but this must be made very clear in the statutory language used and may result in political resistance.

Question 91

3.6 Common law constitutionalism (Repository of individual rights)

Answer 91

It is very important to remember that the common law is also a repository of individual rights (such as freedom from arbitrary arrest and detention, freedom of assembly, and the right to protest). As will be seen in materials relating to parliamentary sovereignty, we have recently seen a renaissance in the courts’ attachment to this source of rights

Question 92

Kennedy v The Charity Commission [2014] UKSC 20 Lord Toulson

Answer 92

What we now term human rights law and public law has developed through our common law over a long period of time. The process has quickened since the end of World War II in response to the growth of bureaucratic powers on the part of the state and the creation of multitudinous administrative agencies affecting many aspects of the citizen’s daily life.

Question 93

Gradual adaption and development of the common law

Answer 93

The growth of the state has presented the courts with new challenges to which they have responded by a process of gradual adaption and development of the common law to meet current needs. This has always been the way of the common law and it has not ceased on the enactment of the Human Rights Act 1998. Although since then there has sometimes been a baleful and unnecessary tendency to overlook the common law. It needs to be emphasised that it was not the purpose of the Human Rights Act that the common law should become an ossuary.

Question 94

3.7 Summary

Answer 94

* Executive power can only be exercised on identifiable authority, and in a lawful manner. * Parliament and the courts both exercise restrictions on executive power. * The Human Rights Act 1998 gives effect in UK law to fundamental rights and freedoms in the European Convention on Human Rights. * The government can ‘derogate’ from Convention rights in some circumstances, but only in accordance with the law. * Constitutional statutes are those which regulate what state institutions can and cannot lawfully do. * Constitutional statutes cannot be impliedly repealed by new statutes. * The common law is, and always has been, an important source of constitutional rights and freedoms.