Rule of Law

Question 1

Definition of the rule of law

Answer 1

There is no single definition - Griffith points this out as a deficiency
Bingham stated in extra-judicial writing that after his long career as a senior law lord he still does not properly know what it means.

Question 2

Dicey’s rule of law

Answer 2

Primarily had two tenets: the courts should not favour the govt and the govt should not act without legal authority.

• It balances parl sov
• His vision relies on the magna carta to oblige officials to point to laws when interfering with others (cited in recent cases such as Binyan Mohamed [2008]).
• There should only be normal courts, not special courts, because they might favour public officials which shoulld not happen
• Admitted that his own view was wrong as govt are permitted wide discretionary powers by parl in the context of WWI

Question 3

Fuller’s rule of law

Answer 3

• Legal positivism
• Expanded on Dicey and held that it includes values that should be attributed to laws, such as clarity, non-retroactivity and consistent application.
• Moral values need not be upheld
• All laws should respect these values to adhere to the rule of law as part of the inner morality of a legal system
• In theory this could accommodate racist laws

Question 4

Dworkin’s rule of law

Answer 4

• A more substantive test that laws fill substantive goals (e.g. human rights) to be adequate

Question 5

Jennings’ rule of law

Answer 5

• Criticsed Dicey for being incompatible with welfare govt

Question 6

Raz’s rule of law

Answer 6

• Same as Fuller’s but expanded on it
• Stated that Fuller’s rule of law was right up to an extent but incomplete
• Laws should not have substantive qualities but should just be sufficient to (1) govern and (2) laws should be such that people can be guided by it
• It is not to be confused with every positive virtue in a system of governance

Question 7

Legal positivism

Answer 7

“whether a given norm is legally valid, and hence whether it forms part of the law of that system, depends on its sources, not its merits”
Developed by Bentham and Austin, and more recently Hart and Raz.
German scholar Radbruch contends that legal positivism allowed he Nazi’s to take over Germany.

Question 8

The core rule of law

Answer 8

The words of Dicey form the floor of the rule of law:

1. The courts should not favour the state in litigation
2. The government should not act without legal authority

Question 9

Equality before the law

Answer 9

There should be no inherent privileges for public officials.

Question 10

Pedro v Diss [1981]

Answer 10

A police officer in plainclothes asked Pedro why he was standing in a doorway and asked if it was his house. The officer grabbed hold of him and tried to detain him and Pedro punched him in the face.
It was held that the police man had no legal authority for his action and thus has no special privilege in the courts.

Question 11

M v Home Office [1994]

Answer 11

Up until a 1947 Act ministers acting under the Crown enjoyed immunity from civil proceedings. In this case the Home Office mistakenly deported an individual, and after a challenge by M, the High Court ordered that he be returned to the UK immediately. The Home Office claimed that the court had no jurisdiction over them, and Lord Templeman noted that “if upheld, [this judgment would] establish the proposition that the executive obey the law as a matter of grace and not as a matter of necessity, a proposition which would reverse the result of the Civil War.”

Question 12

Examples of privilege

Answer 12

This list is not exhaustive:

• Diplomats: subject to immunity protecting them from framed arrests, ratified by an international convention and in the Diplomatic Privileges Act 1964.
• Parliamentary privilege: protects MPs from civil proceedings for what is said in parl. In R v Chaytor [2010] four MPs claimed that this privilege protected them from detainment for false accounting of expenses. SC held them guilty for fraud and the privilege was given a narrow reading so as to impinge on equality before the law the least.
• Immunity in court proceedings: Members of court proceedings are granted civil immunity for the public interest (i.e. independence of judges) (Hall v Simons [2002]).

Question 13

Government by law (core)

Answer 13

Hayek states that the govt by law allows individuals to plan their life accordingly. It requires that govt actions have prior legal authority.

Question 14

Entick v Carrington (1765)

Answer 14

UK govt passed legislation allowing got to raid premises on a ‘general warrant’. This warrant was used to raid the premises of Entick, a radical printer against the govt. His equipment and papers were destroyed and stolen.
It was found that miniseterial authorisation did not justify the trespass, as “No man can set his foot upon my ground without my license, but he is liable to an action, though the damage be nothing…”

This case remains a ‘ringing endorsement of the rule of law and of the system of democratic government’ (Bici v Ministry of Defence [2004]).

Question 15

Limitations of government by law (core)

Answer 15

The following cases show that there are no substantive requirements as to the quality of a law, just that a positive law exists.

The govt can create broad statutes which they cite as authority, e.g. s34 of the Animal Health Act 1981 where dead animal carcasses could be disposed on the claimant’s land without compensation (R (Dixon) v Sec of State for the Environment [2002]).
Likewise R v Inland Revenue Commissioners ex p Rosminster [1980] allowed the Inland Revenue to raid premises where they believed tax fraud was taking pplace. This case challenged the authority but the HL held it to be sufficient authority.

Question 16

Malone v Metropolitan Police Commissioner [1979]

Answer 16

Dicey believed that new common law rights would be created to protect individuals from arbitrary interference. Ewing and Gearty believed that govt would only require positive authority when interfering with recognised private rights: thus in Entick it was a ‘happy coincidence’ that the govt interfered with his property rights.
In Malone, an antiques dealer had his phone tapped over the course of litigation regarding stolen goods. He was not charged, and brought a claim against the police arguing that there was no authority for them to tap his phone. Megarry VC noted that nothnig existed to restrict the govt from doing so; thus no privacy right was recognised and Malone lost the case.
This appeared to reverse the decision of Entick.

Question 17

Tackling limitations to the core rule of law

Answer 17

Dicey made the mistake of conflating individuals and govt to both rquires legal authority for their actions.
Megarry C conflated individuals and govt to require no legal authority AGAINST their actions.
Sir John Laws in ex p Fewings [1995] made claer that “public bodies and private persons are both subject to the rule of law… for private persons, the rule is that you may do anything you choose which the law does not prohibit… but for public bodies the rule is… that any action to be taken must be justified by positive law. public bodies and private persons are both subject to the rule of law… for private persons, the rule is that you may do anything you choose which the law does not prohibit… but for public bodies the rule is… that any action to be taken must be justified by positive law.”

Question 18

Role of the HRA

Answer 18

It was clear through the case of Malone that rights protection in the UK was inadequate (as this case was taken to the ECHR and Malone won). Thus the HRA created private rights which could not be interfered with bar prescription by law (among other things) that is clear. This was displayed in the ECHR case of Sunday Times where the old common law rule against ‘contempt of court’ was deemed inadequate for an individual to base their life on - and thus it was not upheld in the Strasbourg court as a sufficient prescription to interfere with freedom of expression. The HRA brings this extensive protection into the domestic fray.

Question 19

The significance of the core rule of law?

Answer 19

Tomkins believes that anything beyond the core rule of law is not a part of the UK constitution and it is impossible to broaden it.

Question 20

The extended rule of law

Answer 20

Most basically:

1. Laws should not be retroactive but should only apply to conduct from the date of their enactment
2. Laws must be sufficiently clear and stable to guide conduct, allowing individuals to adapt their conduct accordingly
3. The legal system must be operated in a fair manner, allowing all individuals whose legal interest are threatened access to appropriate tribunals and requiring all officials involved a legal system to exercise their discretions fairly

Question 21

Government under the law (extended)

Answer 21

Fuller and Raz contended that laws should meet certain qualities, but the qualities themselves are subject to debate.
Parliament has incorporated these requirements to a certain extent.

Question 22

1. Non-retroactivity of the law

Answer 22

This makes it impossible for one to guide their conduct under the law.

Question 23

Phillips v Eyre [1870]

Answer 23

The Governor of Jamaica declared martial law when a rebellion erupted, ordering the killing and arrest of many individuals. Eyre passed the Indemnity Act prohibiting legal action against him - a claim brought against him was unsuccesful as a result.
This was an unjust decision showing how retroactivity of law, while not desirable, is legal in the UK constitution.

Question 24

Burmah Oil v Lord Advocate [1965]

Answer 24

During WWII British soldiers under teh prerogatie destroyed a Burmah Oil refinery to prevent it falling into Japanese hands - they compensated the company a sixth of the value of the refinery.
Thus proceedings were brought and the company were awarded full compensation.
Straight after Parliament passed the War Damages Act 1965 which reversed the decision and prevented claims for all future and past damage - depriving Burmah Oil of its victory.

Question 25

R (Haw) v Sec of State for the Home Dept [2005]

Answer 25

An Act made it mandatory for prior permission when protesting in Parliament Square. Brian Haw challenged this as it would make him liable for previous actions as he was participating in an ongoing protest in the square. It was found however that he would not be liable for criminal action prior to the act coming into force, only after.

Question 26

Non-retroactivity and the common law

Answer 26

In a common law system problems will no doubtedly arise as the courts require a case to come before them in order to alter the law, in effect being a retroactive criminalisation of someone.

Question 27

R v R [1990]

Answer 27

A woman left her husband intending to divorce him. He broke into where she was staying and attempted to rape her. He was convicted but appeal under the common law exception of rape that wives give themselves up sexually to their husbands. It states in the Sexual Offences Act 1976 that rape is ‘unlawful’ non-consensual intercourse and thus due to this common law exception his rape was not unlawful. The House of Lords considered that this was not a retro-active use of the law, but rather a removal of an anachronistic and offensive common law fiction.
The Strasbourg ruling of this case was that it was not a retroactive criminalisation but a natural development of the common law as the claimant clearly knew the rape was illegal whether they were married or not.

Question 28

R v C [2004]

Answer 28

A rapist contended that raping his wife from 1967 to 1971 was legal as it was not made illegal until 1991. The courts held that 1991 was merely the moment in which the common law fiction dissipated and it was clearly wrong when he raped his wife.

Question 29

2. Clarity and stability of the law

Answer 29

Laws must be ascertainable at any given time and sufficient to guide conduct. 
In R v Chambers [2008] an individual was charged with not paying customs duty but the regulations he was convicted of had been changed (unbeknownst to the courts or himself) so it was pointed out that "it is profoundly unsatisfactory if the law itself is not practically accessible."
In R (Purdy) v Director of Public Prosecutions [2009] Hale stated that "People need and are entitled to be warned in advance so that, if they are of a law-abiding persuasion, they can behave accordingly."
This shows the importance of clarity of law.

Question 30

Sunday Times v UK (1979-80)

Answer 30

In this case the common law charge of contempt of court was found to be far too vague for an individual to guide their conduct and was thus unsatisfactory. Strasbourg requires a higher precision in the law than that which is offered in the UK.

Question 31

GIllan v UK [2006]

Answer 31

This case showed further how UK law is unsatisfactory as an individual was stopped and searched under s44 of the Police and Terrorism Act 2000. Gillan was stopped and searched under this act but because the provision was so vague, it could not constitute a prescription by law sufficient to breach Art 8 and so the UK lost the case, finding the law far too imprecise.

Question 32

Bingham view on the vagueness of laws

Answer 32

In extra-judicial writing he focussed on wider consequences in countries where the law was too vague: No one would choose to do business, perhaps involving large sums of money, in a country where the parties’ rights and obligations were vague and undecided.

Question 33

3. The legal process must be fair

Answer 33

Under the extended rule of law, the judiciary must be impartial, individuals must have access to courts, decisions must be open to scrutiny and all discretion must be fairly exercised.

Question 34

Fair access to courts

Answer 34

This is important and in 1949 legal aid was introduced to support individuals facing prosecution.
In ex p Witham [1998] an individual challenged a statutory instrument to raise court fees and remove exemptions from fee payments to no income families. The statutory instrument was struck down for threatening this constitutional right of access to courts.

Question 35

Impartial and open adjudicaton of the courts

Answer 35

HObbes recognised the need for equal judgment of men. It is also central to Dicey’s rule of law. Judges therefore cannot sit on cases for which they have a vested interest - this is protected in judicial review and goes against Art 6 ECHR so it is reasonably well protected in the UK constituion.
In McFarlane v Relate Avon [2010] a relationship councillor was dismissed for refusing to give advice to same-sex couples on the basis of his religion. Following advice from an ex-Archbishop of Canterbury the idea that a special religious tribunal be set up was vehemently denied.

Question 36

R (Binyam Mohamed) v Sec of State for Foreign and Commonwealth Affairs [2009]

Answer 36

The govt wished to keep proceedings private as they did not wish for the population to know of Britain’s involvement in the torture of Mohamed in Guantanamo Bay but the court of appeal dismissed this stating that “in our view… a vital public interest requires, for reasons of democratic accountability and the rule of law in the UK, that a summary of the most important evidence relating to the British security services in wrongdoing be placed in the public domain in the UK.”

They thus invoked the rule of law to decide the case.

Question 37

Fair and open operation of official discretion

Answer 37

All stages of any process must be fair.
In ex p Bennett D was kidnapped from South Africa to be brought back to the UK by police and while it was accepted that this was an abuse of process the police wanted the rest of the trial to continue. The whole trial was stopped in the House of Lords as “the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and the refuse to countenance behaviour that threatens either basic human rights or the rule of law.”

Fuller contends that this so that the law stated is the law administered.

Question 38

R (on the application of Purdy) v DPP [2009]

Answer 38

An individual wished to commit suicide but required the help of her husband to do so, which is illegal under s2(1) of the Suicide Act 1961. However, it was contended that the law was unclear and as a result would not be a justification in interfering with his Art 8 rights. It was found that the discreiton used by the judge is too unclaer so new policies were made to replace the old ones.

Question 39

Corner House Research v Serious Fraud Office [2008]

Answer 39

A threat was made by the Saudi Govt to the Serious Fraud Office to stop investigating corruption claims involving Saudi Officials. Counter-terrorism negotiations would be jeopardised if the investigation did not halt - they halted the investigations and it was challenged by a pressure group as an illegitimate exercise of discreiton. The HL found it valid as it protected public safety and but they noted their caution in extending this extended rule of law over the judiciary.

Question 40

Parliamentary sovereignty and the extended rule of law

Answer 40

The extended rule of law is desirable but not requisite as they may be outweighed by other interests (public safety in Corner House Research or public interest in the War Damages Act 1965.)

Nonetheless the court uses various presumptions to protect the rule of law in statutory interpretation.

Question 41

Right of access to courts presumption

Answer 41

The courts are reluctant to ousting their jurisdiction in any situation as the access to courts constitutes a fundamental aspect of the rule of law.

Question 42

R v Morley (1760)

Answer 42

In this case a protestant took to court the crown to argue against his right to worship in the Conventicles Act. It was held that despite the statute reducing his rights to an appeal, the Court of Appeal held that their jurisdiction is not taken away unless by express words.

Question 43

Anisminic v Foreign Compensation Commission [1969]

Answer 43

The Foreign Compensation Act 1950 allowed individuals who had property seized abroad to seek compensation but the compensation can be denied at the discretion of the commission. Under s4(4), these exercises of discretion are not to be called into question in a court of law. Nonetheless Anisminic challenged this and the House of Lords found that it did have jurisdiction in the matter and attempts to ouster the court’s jurisdiction would require crystal clear langauge to that effect.

Question 44

R (on the application of A) v B [2010]

Answer 44

This case concerned an ouster clause in the Regulation of Investigatory Powers Act 2000 ad in obiter comments Lord Brown stated that he did not want to undermine the value of ouster clauses so long as a suitable tribunal were set in the place of the ordinary courts.

Question 45

Can statutes be overturned in conflict with the extended rule of law?

Answer 45

In NZ this idea is supported (Taylor v NZ Poultry Board [1984]).
Lord Woolf has stated extra-judicially that the courts have an inalienable duty to identify and uphold the rule of law and that limits even Parliamentary supremacy.
Various dicta in Jackson [2005] also support this: Lord Steyn stated that the courts could do something unprecedented if Parliament acted so unthinkably. Hale stated that the courts will treat with suspicion and might overrule a statute if it attempted to remove the roles of the courts or abrogate civil liberties.

Question 46

The substantive rule of law

Answer 46

This is a conception of the rule of law that goes beyond procedural requirements. It requires that human rights are protected, among other things, for the benefit of society.

Question 47

Limitations of procedural conceptions of the rule of law

Answer 47

Dicey notes that procedural requirements to the rule of law are compatible with discriminatory laws. ‘Formal equality’, as expounded by Dicey, could extend to hate laws, so long as they met the procedural requirements.
Lord Scarman notes Dicey’s rule of law as inadequate. He noted there is a need for an etended rule of law as the common law cannot protect the weak and ailed. Scarman notes that a procedural rule of law may be sufficient for a good society, but is not sufficient to maintain one.

Question 48

Substantive equality in the rule of law?

Answer 48

Common law principles were enshrined in the HRA which protects human rights in the UK.
The International Commission of Jurists in the Declaration of Delhi 1959 state that the rule of law “should be employed not only to safeguard and advance the civil and political rights of the individual in a free society, but also to establish social, economic, educational and cultural conditions under which his legitimate aspirations and dignity may be realized…”

Jowell believes argues that substantive human rights are worthy of protection but not within the rule of law as this will overburden the concept. The rule of law is not a catch-all term for all good things in a legal system.

Question 49

Baroness Hale and the rule of law

Answer 49

Hale, in Jackson, made the comments that the courts may strike down an act of Parliament: “The courts will treat with particular suspicion (and might even reject) any attempt to subvert the rule of law by removing governmental action affecting the rights of the individual from all judicial scrutiny.”

Later, in McDonald v Royal Borough of Kensington and Chelsea [2011] she made a powerful dissent against care cuts taking away from a disabled individual her night time right to care and replacing it with incontinence pads. This care for a vulnerable individual shows her inclination towards a stronger role of the rule of law in the UK as “We are, I still believe, a civilised society.”