Chapter 7: Rule of Law Flashcards
1.1 Meaning of the ‘rule of law’
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.’
1.2 ‘Formal’ and ‘substantive’ schools of thought
’Formal’ (eg Prof. Joseph Raz)
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.
’Substantive’ (eg Ronald Dworkin)
- 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.
1.3 The rule of law and the separation of powers
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.
Doctrine of separation of powers is intrinsic to the rule of law
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.’
Content of the Rule of Law
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.
1.5 The requirement of legality
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.
1.6 Judicial review and the rule of law
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:
- 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.
- 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.
1.7 The rule of law and parliamentary sovereignty (a check on executive power)
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.
Key case: R v SoS Home Department ex parte Simms [2000] 2 AC 115
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
1.8 Legal certainty
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’
Legislation should apply to future actions, not retrospectively to past actions
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.
Impact on new law
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.
1.9 Examples of retrospective legislation
1.9.1 War Damage Act 1965
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.
1.9.2 War Crimes Act 1991
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
1.9.3 Jobseekers (Back to Work Schemes) Act 2013
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.
1.10 Authority for governmental power
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.
R v Somerset County Council, ex parte Fewings [1995] 1 WLR 1037 (Using Power for intended purpose)
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.
Local Government Act 1972: Benefit, Improvement or Development
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’.
1.11 Discretionary power
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).
Legislation confers discretion
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.
Suspicion of discretionary power
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.
Key function of judicial review: control the exercise of discretionary power
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.
1.11.1 Changing judicial attitudes to discretion
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.
Judicial deference
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.
Amplitude of the discretionary power
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.
Key case: Liversidge v Anderson [1942] AC 206
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
Not acting in good faith
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
Lord Aktin: More Executive-Minded than the Executive
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
Key case: IRC v Rossminster Ltd [1980] AC 952
Reasonable cause to believe
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.
Lord Denning MR in the Court of Appeal
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.
Reasonable cause to believe
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’.
1.12 Equality before the law
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?
1.13 Summary
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.
- The rule of law - tensions
2.1 Administrative discretion
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.
Lord Bingham explains:
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.
2.2 Access to justice
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
McKenzie Friends
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.
