Rule of Law Flashcards
The requirement of legality
As emphasised by Lord Bingham, the government must respect and act within the confines of the law; it must act ‘in accordance with the 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.
Requirement of legality
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.
Control by Parliament
Parliament decides whether or not government proposals become law, and it passes laws which gives the executive powers but within regulated restrictions.
Restraints by the courts
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)
Implied repeal
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 They may be repealed, but only by ‘express words in a later statute or by words so specific that the inference of an actual determination [by Parliament] was irresistible’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).
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‘.
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.
Constitutional statutes and executive power
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.
The definition of a constitutional statute is developed further by Farrah Ahmed and Adam Perry in the Oxford Journal of Legal Studies, Vol 37, Issue 2, Summer 2017, pp 461–481:
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.
