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

  1. Accessibility

2."Law, not discretion"

  1. Equality before the law
  1. Proper exercise of power
  1. 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."