The Rule of Law || Seperation of Powers Flashcards
Professor Raz: RoL
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
Frederick Schauer: RoL
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
Waldron: RoL
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”
Craig - dangers of a substantive conception
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
Lord Bingham
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
John Rawls
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
Re M
Lord Templeman on the separation of powers: “Parliament makes the law, the executive carry the law into effect and the judiciary enforce the law”
Applicability of Montesquieu’s doctrine of separation of powers to the British Constitution
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)
Eric Barendt: partial separation theory
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
Doubts as to relevance of Separation of Powers doctrine in the UK: Functional overlap - executive exercise of legislative powers (3)
- Delegated Legislation
- Henry VIII clauses and the HRA 1998
- Legislation and Regulatory Reform Bill 2006
Executive exercise of legislative powers: delegated legislation
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)
Turpin and Tompkins on Delegated Legislation
This power has become so mainstream, that the common affirmation rules used to approve such ministerial regulations are often effectively bypassed
Ahmed v HM Treasury
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)
Henry VIII clauses
Provisions of an Act of Parliament that allows Ministers to revoke parliamentary legislation by order
Primary vs. Secondary legislation
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
Example: Henry VIII clause
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
Parliament - Henry VIII clauses
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
Legislation and Regulatory Reform Bill 2006
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”
HRA 1998 and its mirror provision to Art. 6(1) right to fair trial under ECHR
Triggered a clear move away from the executive playing a judicial function over the last 20 years
Robert Stevens
Before HRA 1998: “casual attitude of the British towards separation of power”
R v Secretary of State for the Home Department ex party Venables
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
Lord Steyn in Venables
“In fixing a tariff, the Home Secretary is carrying out, contra to the constitutional principle of separation of powers, a classic judicial function”
R v R (marital rape) case
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
Shaw v DPP
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.
Dicey: RoL
The Rule of Law should be reduced to 3 propositions:
- Protection of individual rights and liberties
- Government action will not be lawful just because the government says it is so
- Courts, rather than the government, determine whether law is broken
- Protection of individual rights and liberties (Dicey)
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”
- Government action will not be lawful just because the government says it is so (Dicey)
There must be a distinct breach of the law - government action must have taken place within a legal framework
Constitutional Reform Act 2005
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
- Courts, rather than government, determine whether law is broken (Dicey)
Breach must be determined in the “ordinary legal manner before the ordinary legal courts of the land”
John Locke: “Second Treatise of Civil Government”
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
Entick v Carrington
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)
Lord Camden’s defence of RoL in Entick v Carrington
“If it is law, it will be found in our books”
Heuston in response to Lord Camden’s defence of RoL in Entick v Carrington
Courts = “lions under the throne of the British Constitution”
Entick: Dicey’s conception of RoL
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)
Recent affirmation of Entick
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
Craig: process vs. substance of RoL
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?)
SUBSTANCE of Dicey’s RoL
Minimalist conception of the State, limits to government power (solely guarantor of individual liberties + economic transactions) –> Whig conception of Lock’s principles (social contract)
Substance of Dicey’s RoL –> government and discretionary powers
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)?
UNDERSTANDING: substance of Dicey’s RoL vs. Dicey’s parliamentary sovereignty
BOTH (Dicey’s RoL and parliamentary sovereignty) = moral concepts –> 2 ultimate political facts (quoting Wade) lying in tension with each other (Loveland)
CONTRA Loveland’s 2 ultimate political facts: Bellamy
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
2 dominant political theories, having informed modern British political history
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
Red light theories
Primarily concerned with stopping government from interfering with individual autonomy
Green light theories
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
Hayek’s “market liberalisation”
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”
Court’s main duty in “market liberalisation”
To uphold individual liberties against the government NOT to shape law to facilitate government powers
SUBSTANCE of Hayekian RoL
Allowing great inequalities of wealth within society = natural product of people’s varying levels of talent > State redistribution (allowing discretionary powers and encroach RoL)
Jones’ social democracy
State should adopt extensive role in economic affairs and that individuals must accept limits to their autonomy in public interest –> discretionary powers for government
Hayek vs. Jones
H: RoL = absolute value
J: RoL = relative value
Associated Provincial Picture House v Wednesbury Corporation
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)
“Literal Rule”
Court’s duty is to attache the orthodox, grammatical meaning to the statutes phraseology EVEN IF this leads to ostensibly bizarre results
R v Judge of the City of London Court - Lord Esher
Literal Rule: “The court has nothing to do with the question of whether the legislature has committed a absurdity”
Duport Steel v Sirs - Lord Diplock
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
COMPLICATION of the literal rule
“statutes are always speaking” –> the ordinary meaning of words changes over time (timing of meaning?)
Bennion on the “speaking of statutes” - Literal Rule
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…
R v Burstow
Always speaking principle: GBH (s. 20+47 OAPA) interpreted to include psychiatric harm (threatening silent phone calls)
“Golden Rule”
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
R v Bourne
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”
“Mischief Rule”
What was the mischief/defect in the common law that the statute in issue intended to remove - pre-revolutionary roots in Heydon’s case
Major and St Mellons RDV v Newport Corporation
Lord Denning: finding intention of parliament by filling in the gaps and making sense of an enactment rather than opening it to destructive analysis
Lord Denning’s teleological approach in St Mellons - appeal to HoL
Rejected Lord Denning’s purposive interpretation - Lord Simmonds: “naked usurpation of a legislative function under the guise of interpretation”
Court’s importance as the master of words: 2 cases
- Liversidge v Anderson
2. Ex parte Rossminster
Liversidge v Anderson
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
Role of the court: Liversidge v Anderson
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)
Liversidge v Anderson: government!
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
Lord Atkin’s language in Liversidge v Anderson
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
Stable J - writing to Lord Atkin
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”
Allen - pro Atkin
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
Goodhart - contra Atkin
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
R v IRC, ex parte Rossminster
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!
Rossminster vs. Entick
In Rossminster, there was a statutory basis for search.
Rossminster: Denning (CoA) vs. Wilberforce (HoL)
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
Orthodox constitutional theory: court’s alliance
Court’s alliance to the will of parliament (expressed in the words of statute) NOT to the people or a super-legislative constitution
Orthodox theory - a misleading picture?
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
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
Substantive conception of RoL: misapplying orthodox notions of parliamentary sovereignty in defence of traditional moral values
1) Ouster clauses
2) retrospective law making
Anisminic || Gilmore - administrative law field
Courts have gone further and seemed willing to effectively disregard clear statutory attempts to OUST their supervisory effect
R v Medical Tribunal, ex parte Gilmore
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”
Courts responses to ouster clauses
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)
“Implied repeal”
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
Anisminic v Foreign Compensation Commission
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
Retrospective law making - Dicey
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
“Retrospectivity”
1) by parliament (War Damages Act 1965)
2) at common law (rape within marriage + conspiracy to corrupt public morals)
Burmah Oil Company v Lord Advocate
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
War Damages Act 1965
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
DPP v Shaw: conspiracy to corrupt public morals –> retrospectivity at common law
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
R v A (No 2)
Lords Slynn and Steyn expressly read words into statute with Lord Hope dissenting that they had “transversed into legislative function” separation of powers
