PL7: Rule of Law Flashcards
Rule of Law - Constitutional Principle
s1 Constitutional Reform Act 2005
“Constitutional Principle”
The Rule of Law (Allen Lane 2010),
Lord Bingham:
“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”
Susbtantive School of Thought
- Moral component as necessary
- Without respect for fundamental human rights and freedoms a rule of law society cannot be said to exist.
Ronald Dworkin
Substantive School
Prof Joseph Raz
Formal school
Formal (or “procedural”) school of thought
- Legal procedure must be clear and certain
- Law must be prospective
- Law must be clear
- Applied equally
- 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
How far the courts can pursue this role in actively developing and shaping the interpretation of law?
Separation of powers intrinsic to the rule of law
Prevents the exercise of power arbitarily
Aristotle
‘It is better for the law to rule than one of the citizens […] so even the guardians of the laws are obeying the laws.’
Dicey - 8 principles that set up the “rule of law”
- Accessible, clear and predictable
- Resolved through legal processes - not through admin of government officials
- Apply equally
- Afford protection of human rights
- No delay/expense to justice
- Public officials should exercise powers in good faith
- Fair process
- Comply with international law
Substantative
Legality - Lord Bingham
Government must respect and act within the confines of the law.
- Interference sanctioned by legal authority
- Parliament cannot be seen to have restricted rights unless made clear
- Statutory provisions define and limit legal capacities
- Courts determine whether gov power is lawfully exercised.
Gove interference with persons or property must be sanctioned by legal authority
- Either by statute or common law
- Identifiable power to be exercised in lawful manner
Entick v Carrington 1765
Legality principle
Presumption when interpreting statutes, that Parliament cannot be seen to have restricted important rights and principles unless made clear
ex p Simms
Define and Limit legal capacity
Many public (governmental) bodies are incorporated by statute and so statutory provisions will
define and limit their legal capacities.
Independence of the judiciary
Courts determine whether government power is lawfully exercised
Judicial Review
Constitutional mechanism to ensure adherence to legality - and that the rule of law is protected
Prevents arbitrary use of government power.
Administrative courts consider in JR
- Legislation - assess whether public body has complied with the provisions of an Act
- Legaliry of delegated legislation
- Breach of common law constitutional rights
- Lawful exercise of parliamentary sovereignty
L Hoffmann - R v SoS Home Dept ex parte Simms [2000] 2 AC 115
Fundamental rights cannot be overridden by general or ambiguous words. … 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.
R v SoS Home Department ex parte Simms [2000]
Legal Certainty
Legislation should be cleraly drafted
Legislation should apply to …. actions…
Legislation should apply to future actions, not retrospectively to past actions.
Retrospectively applicable legislation
Sometimes passed when:
* Parliament wishes to legislate to overturn a decision of the courts
* Put an accepted procedure on a statutory footing
Examples of retrospective legislation
- War Damage Act 1965
- War Crimes Act 1991
- Jobseekers (Back to Work Schemes) Act 2013
War Damage Act
Overode HoL judgment on Burmah Oil Co Ltd v Lord Advocate [1965]
AC 75.
Gov was not obliged to pay damages for property destroyed or damaged in the war, as the court had previously ordered.
War Crimes Act 1991
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.
Jobseekers (Back to Work Schemes) Act 2013
Vverrode 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.
Authority for governmental power
- Within boundaries of legislation - Entick v Carrington
- Use the power of gov bodies for the intended purpose - R v
Somerset County Council, ex parte Fewings
R v Somerset County Council, ex parte Fewings [1995]
- Local Government Act 1972, allowed
councils to manage common land for the ‘benefit, improvement or development‘ of the area. - Somerset Council used power to ban stag hunting for ethical reasons.
- Court found the power could only be used to manage the deer herd, or to preserve or enhance the
amenity of the area. - 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’.
Discretionary power
- volume of iscretionary power given to the executive has increased since WW2
Dicey on Discretionary power
Natural suspicion of discretionary power - less tightly restrictive gives the executive potential to use in arbitrary way
Who controls the exercise of discretionary power?
Key function of judicial review - control the exercise of discretionary power.
Changing judicial attitudes to discretion
Judicary have increased willingness to intervene in post-war period
Liversidge v Anderson [1942] AC 206
- Prevailing deferential judicial attitude
- Home Sec empowered under Reg.18B of the Defence Regs 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, - Majority HoL accepted HS’s interpretation of no objective req - needed to be shown not in good faith