The Rule of Law || Seperation of Powers

Question 1

Professor Raz: RoL

Answer 1

The International Congress of Jurists determined in 1959 that the rule of law is not a single idea but a complete social philosophy, prescribing a full panoply of civil, economic and social rights

Question 2

Frederick Schauer: RoL

Answer 2

The essence of a system run according to law is the notion that power must be allocated according to law and exercised according to this allocation

Question 3

Waldron: RoL

Answer 3

Rule of Law = formal equality of all legal individuals before the law (all laws are applied equally without bias/distinction)
HOWEVER: formal laws do not prevent substantive inequality (i.e. wealth/racial discrimination)
Defensive/negative quality: RoL acts to constrain government power, which “has the ability to overwhelm any of us with physical force”

Question 4

Craig - dangers of a substantive conception

Answer 4

Danger to move beyond the narrow, formal description of RoL: if substantive conception, RoL is taken to encompass necessity for “good” laws and ceases to have an independent function, becoming a branch of moral philosophy

Question 5

Lord Bingham

Answer 5

Supporter of substantive RoL: “a state which savagely repressed or prosecuted sections of its people could not in my view be regarded as observing the rule of law, even if the persecution were the subject of detailed laws duly enacted and scrupulously observed” Schauer’s allocation notion

Question 6

John Rawls

Answer 6

Lord Bingham’s substantive RoL - Rawls’ veil of ignorance: parties subject to the veil of ignorance (thought experiment, political decision-makers) will make choices based upon moral considerations, since they will not be able to make choices based on their own self- or class-interest

Question 7

Re M

Answer 7

Lord Templeman on the separation of powers: “Parliament makes the law, the executive carry the law into effect and the judiciary enforce the law”

Question 8

Applicability of Montesquieu’s doctrine of separation of powers to the British Constitution

Answer 8

Munro on ‘On the Spirit of the Laws’: actual substance of his doctrine is rather unclear - envisaged institutional merging (members of executive being able to serve as personnel of courts)
–> Montesquieu’s doctrine might not be applicable to the British Constitution (Sir Ivor Jennings)

Question 9

Eric Barendt: partial separation theory

Answer 9

Attempt to rescue Montesquieu’s doctrine so it can be applied to a British context: overlap in personell and even functions not fatal because the object the prevention of arbitrary government by which allocation of function is just the means NOT the 100% precise allocation of appropriate functions to each governmental organ
RIGHT TO SCRUTINISE

Question 10

Doubts as to relevance of Separation of Powers doctrine in the UK: Functional overlap - executive exercise of legislative powers (3)

Answer 10

1. Delegated Legislation
2. Henry VIII clauses and the HRA 1998
3. Legislation and Regulatory Reform Bill 2006

Question 11

Executive exercise of legislative powers: delegated legislation

Answer 11

Secondary legislation: rules NOT made by Parliament but under a power granted in an Act of Parliament which gives another body (normally a minister) power to make rules in the area governed by statute from which rule-making power derives.
(Where power is exercised by ministers, it is governed by Statutory Instruments Act 1946)

Question 12

Turpin and Tompkins on Delegated Legislation

Answer 12

This power has become so mainstream, that the common affirmation rules used to approve such ministerial regulations are often effectively bypassed

Question 13

Ahmed v HM Treasury

Answer 13

The courts have shown some signs of intervening if ministers use regulations enacted under delegated legislation to target individual liberties
(This was the UK Security Council’s first decision)

Question 14

Henry VIII clauses

Answer 14

Provisions of an Act of Parliament that allows Ministers to revoke parliamentary legislation by order

Question 15

Primary vs. Secondary legislation

Answer 15

Idea: clear division between primary legislation passed by Parliament, deciding matters of principle and delegated legislation, deciding matters of detail

This idea is threatened by Henry VIII clauses

Question 16

Example: Henry VIII clause

Answer 16

Human Rights Act 1998: if a court cannot under s. 3(1) Interpret a provision of domestic statute in a manner consistent with UK’s obligations under ECHR and it makes a s. 4 declaration of incompatibility, then under s. 10 a Minister may repeal the offending provision by order

Question 17

Parliament - Henry VIII clauses

Answer 17

Parliament has reigned their power in a little by requiring Parliament to be consulted in all but urgent cases for Henry VIII clauses to be allowed

Question 18

Legislation and Regulatory Reform Bill 2006

Answer 18

Passed through the Commons up to the Committee stage before it was scaled back - basically gave Ministers a general power to legislate:

“Empowered any Minister by order to make provision amending, repealing or replacing any legislation, primary or secondary, for any purpose”

Question 19

HRA 1998 and its mirror provision to Art. 6(1) right to fair trial under ECHR

Answer 19

Triggered a clear move away from the executive playing a judicial function over the last 20 years

Question 20

Robert Stevens

Answer 20

Before HRA 1998: “casual attitude of the British towards separation of power”

Question 21

R v Secretary of State for the Home Department ex party Venables

Answer 21

Child killers of Jamie Bulger.
Under the Crime Act 1997, Home Secretary still had power to set tariff for sentencing. She set 15 years (rather than the 8 recommended by trial judge) and was judged on appeal to have acted unlawfully because she took into account a petition by the SUN

Question 22

Lord Steyn in Venables

Answer 22

“In fixing a tariff, the Home Secretary is carrying out, contra to the constitutional principle of separation of powers, a classic judicial function”

Question 23

R v R (marital rape) case

Answer 23

Performance of the judiciary of executive function: the system of common law plainly allows judges not only to decide individual cases but also to develop and change law more generally.

1991 decision where the HoL had to confront established common law principle that marital rape was legal. The tape happened in 1989 so the court had to retroactively identify a moment in preceding years when common law doctrine of marital rape had changed INDEPENDENTLY of any common law court decisions.

Lord Keith: organic development of common law as an extension of public morals –> radical and expansive step for a court

Question 24

Shaw v DPP

Answer 24

Courts accused of going beyond mere imaginative interpretation to actual legislating.
The accused had published magazine containing names and addresses of prostitutes and descriptions of their services.

HoL: common law included a doctrine of “conspiracy to corrupt public morals”
HOWEVER: no precedents suggested so.

Question 25

Dicey: RoL

Answer 25

The Rule of Law should be reduced to 3 propositions:

1. Protection of individual rights and liberties
2. Government action will not be lawful just because the government says it is so
3. Courts, rather than the government, determine whether law is broken

Question 26

1. Protection of individual rights and liberties (Dicey)

Answer 26

Basis for argument that RoL is inconsistent with the exercise of arbitrary/discretionary powers by the government - government actions must have legal justification, “established by the ordinary courts of the land”

Question 27

2. Government action will not be lawful just because the government says it is so (Dicey)

Answer 27

There must be a distinct breach of the law - government action must have taken place within a legal framework

Question 28

Constitutional Reform Act 2005

Answer 28

First explicit statutory recognition of RoL as constitutional principle (s. 1)

HOWEVER: Land Bingham - act doesn’t define RoL but leaves it as vacuous concept

Question 29

3. Courts, rather than government, determine whether law is broken (Dicey)

Answer 29

Breach must be determined in the “ordinary legal manner before the ordinary legal courts of the land”

Question 30

John Locke: “Second Treatise of Civil Government”

Answer 30

With Montesquieu defined our understanding of RoL as it applies to British constitution - provided for the doctrine of separation of powers which in turn provides for the terms of the social contract in which citizens agree to bind themselves to a state

Question 31

Entick v Carrington

Answer 31

Dicey’s requirement of legal justification for government action: Home Secretary (Carrington) issued warrant under which agents of the King broke into Entick’s house and removed papers. Entick was alleged to be the author of seditious writings supporting political radical John Wilkes
–> action was unjustified (no legislation/common law precedent authorising HS to issue warrant) –> common trespass (SoS liable in tort for damages)

Question 32

Lord Camden’s defence of RoL in Entick v Carrington

Answer 32

“If it is law, it will be found in our books”

Question 33

Heuston in response to Lord Camden’s defence of RoL in Entick v Carrington

Answer 33

Courts = “lions under the throne of the British Constitution”

Question 34

Entick: Dicey’s conception of RoL

Answer 34

Embodies both the PROCESS + SUBSTANCE of his conception of RoL

Process - of the separation of powers, whereby courts protect liberties of individual

Substance - reflective of Dicey’s Whig conception of social ordering (courts protect Lockean principles of individual liberty + property)

Question 35

Recent affirmation of Entick

Answer 35

M v Home Office: extended Entick principle, holding that Ministers of the Crown cannot flout RoL, as they are obliged to respect orders of the court and risk a finding of contempt of court if they don’t

Question 36

Craig: process vs. substance of RoL

Answer 36

PROCESS: procedural rules, organisational infrastructure that ensures formal separation of powers

SUBSTANCE: more positive conception of RoL, containing vision not only of procedural ordering but also of societal ordering (i.e. what is the social good? what is the good life? should we have a big/small State?)

Question 37

SUBSTANCE of Dicey’s RoL

Answer 37

Minimalist conception of the State, limits to government power (solely guarantor of individual liberties + economic transactions) –> Whig conception of Lock’s principles (social contract)

Question 38

Substance of Dicey’s RoL –> government and discretionary powers

Answer 38

Minimalist conception of State –> parliament shouldn’t provide government with discretionary powers!
HOWEVER (Loveland): isn’t this impliedly contradicting Dicey’s notion of parliamentary sovereignty (no limits to it’s powers to enact statute)?

Question 39

UNDERSTANDING: substance of Dicey’s RoL vs. Dicey’s parliamentary sovereignty

Answer 39

BOTH (Dicey’s RoL and parliamentary sovereignty) = moral concepts –> 2 ultimate political facts (quoting Wade) lying in tension with each other (Loveland)

Question 40

CONTRA Loveland’s 2 ultimate political facts: Bellamy

Answer 40

Whole reason why legislative supremacy of parliament (in this country) is conductive of democracy NOT dictatorship: it’s based on political settlement, rule of recognition of social origin NOT common law rule of recognition/precedent –> we respect legislative supremacy as long as it is used for the expression of our values

Question 41

2 dominant political theories, having informed modern British political history

Answer 41

1) Friedrich Hayek’ s “market liberalisation” (Diceyan)
2) Harry Jones’ social democracy

Harlow and Rawlings: Hayek’s and Jones’ theories are respective examples of red light and green light theories

Question 42

Red light theories

Answer 42

Primarily concerned with stopping government from interfering with individual autonomy

Question 43

Green light theories

Answer 43

Individual autonomy requires not the stopping of government intervention (red light) but to be curbed to give way for public politicians promotive of societal well-being

Question 44

Hayek’s “market liberalisation”

Answer 44

Minimalist conception of the State (quite Dicey) by denying government discretionary powers and constructing rigidly formalist RoL whereby government is “bound in all its actions in rules fixed and announced beforehand”

Question 45

Court’s main duty in “market liberalisation”

Answer 45

To uphold individual liberties against the government NOT to shape law to facilitate government powers

Question 46

SUBSTANCE of Hayekian RoL

Answer 46

Allowing great inequalities of wealth within society = natural product of people’s varying levels of talent > State redistribution (allowing discretionary powers and encroach RoL)

Question 47

Jones’ social democracy

Answer 47

State should adopt extensive role in economic affairs and that individuals must accept limits to their autonomy in public interest –> discretionary powers for government

Question 48

Hayek vs. Jones

Answer 48

H: RoL = absolute value
J: RoL = relative value

Question 49

Associated Provincial Picture House v Wednesbury Corporation

Answer 49

Demonstrative of red light theory

s. 1 Sunday Entertainment Act 1932 empowered local councils to place conditions as they think fit on cinemas wishing to open on Sundays
WC’s condition: forbidding children < 15 from attending on a Sunday –> cinema argued this was unlawful

Held: 3 grounds in which a court might find that executive action in ultra vires

1) Illegality: no legislative basis in statute for government action
2) Unreasonableness/irrationality: government decision so unreasonable, no reasonable person could have assumed that was Parliament’s intention
3) Procedural unfairness: natural justice (not concerning substance of an act but procedure)

Question 50

“Literal Rule”

Answer 50

Court’s duty is to attache the orthodox, grammatical meaning to the statutes phraseology EVEN IF this leads to ostensibly bizarre results

Question 51

R v Judge of the City of London Court - Lord Esher

Answer 51

Literal Rule: “The court has nothing to do with the question of whether the legislature has committed a absurdity”

Question 52

Duport Steel v Sirs - Lord Diplock

Answer 52

If the absurdity (resulting from applying the literal rule) was a mistake rather than an intended consequence it is FOR PARLIAMENT to enact new statute amending former Act –> not for judiciary to “invent fancied ambiguities” just because they fear an injustice

Question 53

COMPLICATION of the literal rule

Answer 53

“statutes are always speaking” –> the ordinary meaning of words changes over time (timing of meaning?)

Question 54

Bennion on the “speaking of statutes” - Literal Rule

Answer 54

Constitutional orthodoxy: statutes are ALWAYS speaking - parliament intended the original Act to be applied at any future time in a way giving effect to its original intention –> interpreter to male allowances for changes in language due to social conditions, technology…

Question 55

R v Burstow

Answer 55

Always speaking principle: GBH (s. 20+47 OAPA) interpreted to include psychiatric harm (threatening silent phone calls)

Question 56

“Golden Rule”

Answer 56

When literal reading of PARTICULAR statutory provision would lead to absurdity, court should examine statute in its ENTIRETY to see if a more sensible meaning might be attached to the relevant words in light of legislative context

Question 57

R v Bourne

Answer 57

Golden Rule: OAPA, s. 58 criminalised performance of abortion without providing defence (i.e. when medically necessary) –> term “unlawfully” in the Act EMBRACED a defence –> qualified medical official performing abortion to save woman’s life was not acting “unlawfully”

Question 58

“Mischief Rule”

Answer 58

What was the mischief/defect in the common law that the statute in issue intended to remove - pre-revolutionary roots in Heydon’s case

Question 59

Major and St Mellons RDV v Newport Corporation

Answer 59

Lord Denning: finding intention of parliament by filling in the gaps and making sense of an enactment rather than opening it to destructive analysis

Question 60

Lord Denning’s teleological approach in St Mellons - appeal to HoL

Answer 60

Rejected Lord Denning’s purposive interpretation - Lord Simmonds: “naked usurpation of a legislative function under the guise of interpretation”

Question 61

Court’s importance as the master of words: 2 cases

Answer 61

1. Liversidge v Anderson

2. Ex parte Rossminster

Question 62

Liversidge v Anderson

Answer 62

Defence Regulations 1939 (NOTE the date):
“If the HS has reasonable cause to believe any person to be of hostile origins… [they]may make an order against that person” –> Robert Liversidge contested that there was no reasonable cause in his case

Question 63

Role of the court: Liversidge v Anderson

Answer 63

Did “reasonable cause” impliedly required HS to be able to demonstrate objectively that their cause was in fact “reasonable”?

Imposition of an objective test vs. mere tautology (HS’s belief necessary being reasonable by the very fact of him believing it)

Question 64

Liversidge v Anderson: government!

Answer 64

4:1 majority for the government - Lord Wright vs. Lord Atkins:

LW: HS must be reasonably satisfied, his decision alone
LA (DISSENTING): need for the judiciary to remain independent of the executive - courts had given uncontrolled power of imprisonment to the minister

Question 65

Lord Atkin’s language in Liversidge v Anderson

Answer 65

Accused his 4 colleagues of being “more executive minded than the executive”, making an allusion to Alice through the looking glass - Alice and Humpty Dumpty describing the use of language: Who is the master of the words? - Legislative according to Lord Atkin’s literal approach

Question 66

Stable J - writing to Lord Atkin

Answer 66

Majority decision in Liversidge v Anderson brought the courts in disrepute: judges were no longer the “lions under the throne but mice squeaking under a chair in the Home Office”

Question 67

Allen - pro Atkin

Answer 67

Majority created a legal fiction - the subjective cause test , accuses Goodhart of recording into a “subjective idealism”, worthy of Hamlet, in departing from literal rule and holding that the word reasonable can mean anything

Question 68

Goodhart - contra Atkin

Answer 68

Cites an appearance by Sir John Anderson (HS) before parliament in 1941, where he had suggested he never intended reasonable cause to mean that it had to satisfy an objective test before the courts –> Goodhart applauded court in Liversidge for its departure from literal rule

Question 69

R v IRC, ex parte Rossminster

Answer 69

Taxes Management Act 1970: seemed to bestow sweeping search and seizure powers on Inland Revenue employees (seek a search warrant, then said and “seize and remove any things whatsoever”.

IRC (acting under a warrant), raided Rossminster’s premises and seized documents, without stating what the matter under investigation was –> R argued court should read parliament as having intended legislation to be construed with the common law principles informing Entick: Power would only be used in a targeted way and not speculatively!

Question 70

Rossminster vs. Entick

Answer 70

In Rossminster, there was a statutory basis for search.

Question 71

Rossminster: Denning (CoA) vs. Wilberforce (HoL)

Answer 71

D’s teleological reasoning: matter of construction of statute –> duty to protect the liberty of the individual –> warrant must particularise specific offence

W’s literal interpretation: statute valid, parliament might want to look at it BUT courts have no power to impede/restrict the working of legislation

Question 72

Orthodox constitutional theory: court’s alliance

Answer 72

Court’s alliance to the will of parliament (expressed in the words of statute) NOT to the people or a super-legislative constitution

Question 73

Orthodox theory - a misleading picture?

Answer 73

Increasing knowledge of the law of our constitution –> Liversidge seemingly provides an example of the giving allegiance in effect to the executive rather than Parliament

Question 74

Orthodox theory - judiciary’s ultimate alliance to neither, executive or parliament BUT to a version of RoL which possesses a higher constitutional status than the clear words of legislation

Answer 74

Substantive conception of RoL: misapplying orthodox notions of parliamentary sovereignty in defence of traditional moral values

1) Ouster clauses
2) retrospective law making

Question 75

Anisminic || Gilmore - administrative law field

Answer 75

Courts have gone further and seemed willing to effectively disregard clear statutory attempts to OUST their supervisory effect

Question 76

R v Medical Tribunal, ex parte Gilmore

Answer 76

Denning: National Insurance Act 1948’s attempt to exclude court’s supervision by rendering all decisions by specialised medical tribunal final –> NOT SUFFICIENT to achieve this exclusion (only means “without appeal” NOT “without recourse to JR”

Question 77

Courts responses to ouster clauses

Answer 77

Courts effectively challenged Parliament’s power of implied repeal, echoing decisions in Charlton v Laings and Nairn v University of St Andrews (cases about whether Parliament had impliedly repealed discriminatory provisions against women)

Question 78

“Implied repeal”

Answer 78

Where an Act of Parliament conflicts with an earlier one, the later Act takes precedence and the conflicting parts of the earlier Act becomes legally inoperable

Question 79

Anisminic v Foreign Compensation Commission

Answer 79

Courts might have established as a political (if not legal fact) fact the constitutional principle of judicial supervision:

Foreign Compensation Act 1950: in press and clear words - deliberations by commission established to provide compensation for British nationals whose property had beed seized overseas “shall not be called into question in any court of law”

HoL: ouster clause had only excluded review of “determinations” NOT “purported determinations” where there had been an error of law

Question 80

Retrospective law making - Dicey

Answer 80

Parliament might have legislative supremacy to do so but would go against principle of ex ante rule predictability - fundamental to Dicey’s and Hayek’s conception of the State

Question 81

“Retrospectivity”

Answer 81

1) by parliament (War Damages Act 1965)

2) at common law (rape within marriage + conspiracy to corrupt public morals)

Question 82

Burmah Oil Company v Lord Advocate

Answer 82

1942 - British government, acting under what it presumed to be common law power, ordered its army in Burma to destroy on of BO’s refineries to prevent it falling under advancing Japanese forces’ control

HOWEVER: after war common law established to be wrong (Burmah Oil won £31 million in damages)

–> could all individuals/enterprises that had their property damaged in similar circumstances also claim compensation just because government had mistakenly presumed to have authority?

NO - War Damages act 1965

Question 83

War Damages Act 1965

Answer 83

Retrospectively declared all such British activity during the law as legal
–> RoL, construed as a moral code will at times be viewed as expendable by parliament when viewed as necessary

Question 84

DPP v Shaw: conspiracy to corrupt public morals –> retrospectivity at common law

Answer 84

Mr Shaw was convicted of the supposed common law offence of corrupting public morals (he had published a “Ladies Directory” detailing names, addresses and specialisms of prostitutes EVEN THOUGH there was no previous authority

Lord Simonds: entirely appropriate for courts to fashion new offences at common law to deal with newly emerged problems

OH THE IRONY: in Magor, he shut Denning down for suggesting any expansive form of statutory interpretation

Question 85

R v A (No 2)

Answer 85

Lords Slynn and Steyn expressly read words into statute with Lord Hope dissenting that they had “transversed into legislative function” separation of powers