Rule Of Law

Question 1

What is the ‘rule of law’?

Answer 1

The rule of law is a constitutional principle which are fundamentally important values that concern the constitutional and which serve at least one (and often all)

Question 2

What would most people agree with about the rule of law?

Answer 2

Most people can agree that the rule of law means at the very least government according to law, but beyond this there is disagreement about just the meaning and purpose of the rule of law

Question 3

Why is it important for us as students of UK constitutional law to study “the rule of law”?

Answer 3

• need to be aware of the rule of law’s increasing importance as a constitutional principle in the Uk with some senior judges even suggesting that it has supplanted parliamentary sovereignty as as the most important constitutional principle in the UK
• we need to explore the ways in which it is realised in the UK, and in particular whether this is changing with a particular stress on striving to understand if judicial attitudes to the rule of law are changing
• the rule of law can be helpful evaluative tool for us to use when assessing the health of our constitutional system, but this requires us to be able to define it clearly and precisely to avoid the rule of law being little more than empty political slogan
• almost everybody that the rule of law is a good thing, but that should not blind us to the need to explore its limits

Question 4

What is the formal conception of rule of law?

Answer 4

• views the rule of law as a concerned only with the for, of law and the procedures by which law is made
• it is not concerned with the content of law ie. valid law can be either morally sound or morally unsound
• this makes it a modest conception that does not purport to lay down requirements as to the substantive content of valid law

Question 5

What is the substantive conception of the rule of law?

Answer 5

• views the rule of law as concerned with the form of law and the procedures by which law is made and also the substantive content of that law
• It is concerned with the content of law; i.e. only morally sound law can be valid law
• this makes it an ambitious conception that does purport to lay down requirements as to the substantive content of valid law

Question 6

What does the formal conception suggest about the rule of law?

Answer 6

• Famously associated with a 1977 article by Joseph Raz
• Raz was concerned about “the promiscuous use” made of the label “the rule of law” would render it little more than an empty solagan
• especially concerned about a tendency to inflate the rule of law

Question 7

According to Raz’s account of formal conception of rule of law?

Answer 7

• Closely tied to what he saw as the primary function served by law
• law’s primary function is to help to know where they stand and to enable them to plan their lives in the full knowledge of the restrictions imposed upon them by law
• Rule of law derives from the basic intuition that “the law must be capable of guiding the behaviour of its subject” i.e. legal certainty

Question 8

What are the key standards that help to promote legal certainty?

Answer 8

• all laws should be prospective open and clear
• laws should be relatively stable
• the making of particular level orders should be guided by open stable clear and general rules
• the independence of the judiciary must be guaranteed
• the principle of nature justice must observed
• the courts should have review powers over the implementation of the rule of law
• the courts should be easily accessible
• the discretion of crime preventing agencies should not be allowed to prevent the law

Question 9

What is the substantive conception of the rule of law

Answer 9

• the substantive conception promises judicial promises judicial protection of important moral and political rights
• we might welcome this if we are concerned about the risk that legislation might not respect minority rights
• But we might worry that confers too much power on judges in respect of policy questions that are the subject of reasonable disagreement between people of good faith

Question 10

What is the diversity like in the judiciary?

Answer 10

• only 32% are women and 43% of solicitors with over 15 years of experience
• only 8% of court judges indetified as BAME
• this is even lower for the most senior judicial appointments

Question 11

Would is the rule of law implemented in the UK, what are the three institutions have roles to play in promoting the rule of law?

Answer 11

• UK government
• UK parliament
• The judiciary

Question 12

What are the other ways in which UK government promotes the rule of law?

Answer 12

• ministers are under an overarching duty to comply with the rule of law
• the law officers advise ministers on legal matters and help to ensure they act lawfully
• civil servants and ministers are under a statutory duty in the constitutional Reform Act 2005 to uphold judicial independence

Question 13

What is the UK internal market Bill?

Answer 13

• initially included provisions that envisaged breach in the UK’s treaty obligations under international law
• this was said by critics to undermine the rule of law
• one of the law officers
• the provisions were ultimately withdrawn when it was clear in December 2020 that the UK and EU had would conclude a trade agreement

Question 14

What are some of the ways in which UK Parliament promotes the rule of law?

Answer 14

• clear establish procedure for making primary and secondary legislation
• internal rules to ensure parliamentary debates do not interfered with live court cases
• some select committees play a role in buttressing the rule of law
  Parliament has enacted statutes that promote the rule of law

Question 15

How do some courts promote the rule of law?

Answer 15

• judicial review of lawfulness of decisions and action of ministers and public bodies
• judicial review of secondary legislation, n.b. Court can deny invalidate secondary legislation
• develop common law in ways consistent with the rule of law
• presumption of statutory interpretation that promote the rule of law

Question 16

Does the UK constitution embrace a formal or susbtantive conception of the rule of law?

Answer 16

• there is ample evidence that the UK consititution embraces the formal rule
• Some senior judges have suggested in orbiter dicta that the substantive conception now applies in the UK and that in extreme circumstances a court could refuse to apply an Act of parliament which seriously offends the rule of law

Question 17

Who said this quote?:

“The rule of law enforced by the courts is now the controlling factor on which our constitution is based”

Answer 17

Lord Hope in Jackson

Question 18

What are the possible causes of a shift towards a substantive conception of the rule of law?

Answer 18

• Declining confidence in the political system, and a widely shared concern that the UK Government dominates the UK parliament, with the UK Parliament ineffective in holding UK ministers to account
• Increasing confidence in the judicial system, partly as a result of reforms such as the constitutional Reform Act 2005 that increased the independence, accountability and transparency of the judiciary.
• Internationalisation of constitutional law

Question 19

What are the possible consequences of a shift towards a substantive conception of the rule of law?

Answer 19

• Courts will claim right to invalidate Act of Parliament in the name of the rule of law.
• The rule of law would replace parliamentary sovereignty as the most important principle in the UK constitution
• Lead to a rebalancing of institutional prowler, with judicial power rising, and the power of parliament declining
• this would arguably lead to constitutional transformation by stealth.

Question 20

According to the traditional view is the UK Parliament Sovereign?

Answer 20

• On the traditional view, yes the Uk parliament remain sovereign, able to enact as primary legislation any law, it chooses, with no court to deny legal effect to Acts of Parliament. This makes the UK the ultimate legal authority in the UK, with the final say over the content of law

Question 21

What are the some of the point that seem to challenge the traditional view of whether the UK is a Parliament Sovereign?

Answer 21

• the “new view” on whether entrenchment is possible
• the experience of EU membership, whether the UK parliament succeeded via the European communities Act 1972 in elevating EU law above its own enactments
• Some senior judges believe that the rule of law may generate legal limits on Parliament’s legislative authority that are enforced by the courts

Question 22

Should the UK Parliament be Sovereign?

Answer 22

• Parliamentary sovereignty as an expression of majoritarian democracy (i.e. majority will should prevail). But what about the risk that majority will overrides the rights of minority groups?

Question 23

Is the Rule of Law the controlling factor upon which the Uk constitution is based?

Answer 23

• Traditionally, the formal conception of the rule of law has been very important in the UK
• But there is growing evidence that some judges prefer a substantive conception (Jackson, AXA, Privacy International), but this is only orbiter

Question 24

Should the Rule of Law be the controlling factor upon which the UK constitution is based?

Answer 24

• If you are attracted to a counter- majoritarian vision of democracy, i.e the idea that there should be legal limits on majority will in order to safeguard minority rights), you may find the substantive conception of the rule of law attractive, and you may agree with Lord Hope that it should be controlling factor on which the UK constitution is based

Question 25

What is the Majoritarian vision of democracy ?

Answer 25

• A person who prefers this view prefers a formal conception of the rule of law. And they may feel that the rule of law is an important principle in the UK, but one which is secondary to parliamentary sovereignty

Question 26

What is political constitutionalism?

Answer 26

Those who expertise political power (minister) should be held to account primarily through political processes (eg. Legislative debate, select committee inquiries and electoral processes by political institutions (e.g. Parliament)

Question 27

What is legal constitutionalism?

Answer 27

Those who exercise political power (eg. Ministers and public bodies) should be held to account to an increasingly important extent through legal processes (eg. Judicial review) by legal institutions (e.g courts and tribunals)

Question 28

What are the views and arguments put forward by political constitutionalism?

Answer 28

• parliament should be sovereign
• the rule of law is form
• more confidence in politics and the political system than in law and the judicial system
• Majoritarian democracy

Question 29

What are the views and arguments put forward by legal constitutionalism?

Answer 29

• parliament should be subject to legal limits
• the rule of law is substantive
• more confidence in law and the judicial system than in politics and the political system
• counter majoritarian democracy