Con & Ad - Rule of Law
Constitutional principle
Rationale
Shklar - "self-congratulatory rhetorical device"
Formal school - Raz
Process based- if government acts consistently with laws, that is enough
Proper authority for actions
Consistency
Moral neutrality
Prospective no retrospective
Clarity and certainty
Substantive
Formalism plus...
Jowell - "principle of institutional morality"
Lord Bingham (Sir Davids Williams Lecture, 2006) - Protection of human rights
Dworkin - "rights conception" of ROL
Dicey's theory - Law of the Constitution (1885)
Avoidance of arbitrary (discretionary) power
Equality before the law
Common law constitutional rules and rights - determined through courts
"a land where the laws may be harsh but where men were ruled by law and not by caprice"
Bingham's theory - 5 key elements
- Accessibility
2."Law, not discretion"
- Equality before the law
- Proper exercise of power
- Fair trial
Additional elements
Human rights
Dispute resolution
Respect for international law
Clarity
Sunday Times v UK (1979)
"prescribed by law" (ECHR, Art 10)
Shaw v DPP (1962)
Non-retrospective law
R v R (1991)
War Damages Act 1965
War Crimes Act 1991
Jobseekers (Back to Work Schemes) Act 2013
Discretion = arbitrary power
Modern complexity of government - state interventionism
Von Hayek - "Road to Serfdom"
Red light v Green light
Exceptions
Partial Crown immunity
MPs' privileges
Judges - immunity from suit
Diplomatic immunity
M v Home Office (1993)
Authorisation required for government to impinge on individual rights
Lord Camden in Entick v Carrington (1765) - "he is bound to shew by way of justification that some positive law has empowered him"
Justice Laws in Ex p Fewings (1995) - "action to be taken must be justified by positive law"
Judicial review of lawfulness of executive action
Executive should act...
Within powers given - not "ultra vires"
For correct purposes
In good faith
Fairly
Reasonably
Fair legal process
Access to justice
Legal aid - LASPO 2012
Article 6 ECHR - fair legal procedures
Independence and impartiality of judiciary
McGonnell v UK (Baliff of Guernsey)
R (UNISON) v Lord Chancellor - "Fees Order 2013" - fees imposed for claims to employment tribunals
Lord Reed - "The constitutional right of access to the courts is inherent in the rule of law"
"Guardians of the rule of law"
Judicial deference
Liversidge v Anderson (1942)
Ex p Hosenball (1977)
Ex p Cheblak (1991)
A & Others v SoS Home Department (2004)
Professor Smith - "powers exercised by politicians must have a legitimate foundation... based on an authority conferred by law"
John Adams, Thoughts on Government - "an empire based on laws and not men"
Lord Reed - "The constitutional right of access to the courts is inherent in the rule of law."
Current status in UK
R (Corner House Research) v Dir SFO
R (Binyan Mohamed) v FCO
Rahmatullah v FCO
Constitutional balance between Parliamentary Sovereignty and ROL?
Lord Hope in Jackson v Attorney-General: "The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based."
Jowell, The Changing Consitution - "Britain is moving steadily to a model of democracy that limits governmental power in certain areas, even where the majority may prefer otherwise. The Rule of Law supplies the foundations of that new model."
Relationship with other constitutional theories
Parliamentary sovereignty
Dicey - ROL and Parl Sov two fundamental principles on which constitution rests
ROL check on executive power
ROL justification of restrictions on scope of legslation to protect individual liberties
R v Secretary of State for the Home Department, ex parte Simms - blanket ban on journalists using info gained in interviews with prisoners - found to be unlawful
Lord Hoffman - principle of "legality" - Parl Sov means can enact legislation contrary to human rights but nonetheless - "Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overriden by general or ambiguous words."
Separation of powers
Judiciary enforces law and keeps executive within bounds of lawful authority - integrally linked
Judicial review
R (Evans) v Attorney-General - clearly upholding ROL and SOP
Lord Neuberger - "A statutory provision which entitles a member of the executive... to overrule a decision of the judiciary merely because he does not agree with it would not merely be unique in the laws of the UK. It would cut across two constitutional principles which are also fundamental components of the rule of law."