Rule of law lecture notes Flashcards
Some quotes
‘If it is law, it will be found in our books. If is not to be found there, it is not law’ – Lord Camden CJ in Entick v Carrington (1765)
‘Be you ever so high, the law is above you’ – Lord Denning in Gouriet v Union of Post Office Workers [1978]
“Wherever law ends, tyranny begins” (John Locke, 1690)
‘‘For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.’’ (Thomas Paine: 1776)
‘The core of the existing principle is, I suggest, that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts’ – Lord Bingham, ‘The Rule of Law’ (2007)
Constitutional Reform Act
s1 seeks to protect the ‘rule of law’.
The prerogative as a gap in the rule of law
Its scope is still unsure - McAuslan and McEldowney. Ministers do not know the extent of the prerogative; it would be impossible to produce a precise list of these powers. This makes a constitutional black hole. Prerogative legislation (Orders in Council) is technically primary legislation but is not subject to parliamentary consent or scrutiny. They are approved at a meeting with the Privy Council attended normally by four members. Most of the royal prerogatives are exercised by Conventions (i.e. ministers) and are non-controversial (appointment of prime minister, issuing passports etc).
Does the prerogative adhere to the idea of clarity of law?
The courts claim the power to determine whether a prerogative exists (The Case of Proclamations 1611).
Prerogatives cannot increase in scope, only reduced or abolished (BBC v Johns).
Evidence needed to show a prerogative’s existence
ex p Northumbria Police Authority: the police authority generally supplied equipment to the police under the Police Act 1964. The Home Sec issued a circular stating that CS gas and plastic batons would be supplied to police chief constables from the Home Office under the prerogative to keep the Queen’s peace. No authority was cited but the use was upheld as “The scarcity of references in the books to the prerogative of keeping the peace within the realm does not proves that it does not exist. Rather it may point to an unspoken assumption that it does.” Despite the act legislating on the same area as the prerogative and prerogative being subordinate to statute (De Keyser’s Hotel) it was held that the act did not provide a monopoly on the supply of police materials.
Bancoult
This case concerned the decision by the UK govt to remove the Chagossians from their home land for an American accord. The evacuation was done under a Prerogative Order in Council (‘the 1965 BIOT Constitution Order’) which gave the crown a general legislative power for its ‘peace, order and good government’. The decision was quashed in the high court in 2000 for being ultra vires (Bancoult No 1). In 2004 the govt made two new Orders in Council to deny the right of abode to the islanders and permanently exile them from the Chagos.
The question arose as to whether the prerogative was subject to judicial review - found that it was as it is an exercise of the executive alone. It also raised the question if the prerogative could be used to deny the right of abode to a population - found 3:2 that it could as the general power to legislate for ‘peace, order and good government’ could not be said to exclude the power to exclude the whole population.
Bingham dissented, stating that a lack of authority negates the existence of such a power to exile a population.
Mance also dissented stating that the crown’s power to legislate for ‘peace, order and good government’ could not be said to reflect exiling the inhabitants of the islands. It is a ‘contradiction in terms’.
Statute or prerogative?
Attorney General v De Keyser’s Royal Hotel: statute overrides the prerogative (affirmed obiter in ex p Fire Brigades Union) but statute on the same area may not automatically abridge the prerogative (ex p Northumbria Police Authority).
ex p Fire Brigades Union
Compensation for criminal injuries was always distributed under the prerogative, not a statutory footing. Parl placed this in the Criminal Justice Act 1988 but it was to be implemented by the Sec of State when it pleased. However the sec of state chose not to implement the act and instead introduce a cheaper scheme under the prerogative. HELD that the prerogative could not be used so as to frustrate the will of Parliament.
Hashman and Harrup v UK
Applicants engaged in hunt hallooing and blew horns. Some dogs were distracted, one ran across the road and was killed. They were prosecuted under the Justices of the Peace Act 1361 for acting contra bonos mores. It was found in Strasbourg to be too vague a law to interfere with Article 10 rights of freedom of expression.
Reilly (No 2)
Reilly was an unemployed graduate and forced to work in Poundland after losing job seekers allowance. She challenged this as unlawful forced labour as the regulations under which it was ordered were ultra vires. She succeeded in this ultra vires claim (Reilly (No 1)) but in order to prevent having to compensation £100m for people in the same situation, the govt fasttracked legislation to retroactively validate the legislation. The new legislation was challenged for a breach of Art 6 as it interfered with ongoing proceedings in the governments favour and the High Court accepted this.
Areas of prerogative not subject to judicial review
As per Lord Roskill in GCHQ: ‘The making of treaties, the disposal of the armed forces, the defence of the realm, the dissolution of Parliament, the prerogative of mercy, the granting of mercy and the appointment of Ministers.’
Note rationale: such areas not reviewable “because their nature and subject matter are such as not to be amenable to the judicial process…”
ex p Rees Mogg
confirmed that the courts would not entertain challenges to the prerogative power to conclude treaties (in this case the Treaty of Maastricht).
Abbasi
Abbasi was detained by the US in Guantanamo bay for the duration of the ‘war on terrorism’ which could be indefinite. Abbasi had no right of habeas corpus. A judicial review brought on the UK govt but denied but failed in the court of appeal as they held that the Foreign Office had ‘considered’ making representations for him to the American govt, but had ultimately refused to.
Prevention of Terrorism Act
Allows the sec of state to impose control orders on terrorist suspects. An 18 hour curfew was held to be a restriction on freedom of expression, but 14 hours in another case wasn’t. It was held by Hoffman in the Belmarsh case that ‘The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve.’
Asylum and Immigration Bill
Sought to remove all judicial review from the Asylum and Immigration Tribunal including for lack of jurisdiction, error of law or breach of natural justice. Rejected as far too draconian and it would be ‘startling even in a dictatorship.’
