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Workshop 7.1 - Rule of law: overview - Coggle Diagram
Workshop 7.1 - Rule of law: overview
Meaning of the rule of law
The rule of law has become more constitutionally important in recent years, as demonstrated by a direct reference to it as a 'constitutional principle' in s1 of the CRA 2005.
There is no definition of what is meant by the rule of law in the Act. Instead, it is left to the judges to interpret what the terms mean in the context of each individual case.
The book
The Rule of Law
(Allen Lane 2010), Lord Bingham defined the rule of law as "the core of the existing principle is that all persons and authorities within the state... should be bound by and entitled to the benefit of laws"
Formal and substantive schools of thought
Formal (procedural)
Legal procedures must be clear and certain.
The law must be prospective.
The law must be clear.
The law must be applied equally.
The judiciary must be independent.
The moral content of laws if not determinative of whether the rule of law can be said to exist in a given jurisdiction.
Substantive
The same formal requirements apply, but a moral component is also necessary.
Without respect for fundamental human rights and freedoms, a rule of law society cannot be said to exist.
The rule of law and the separation of powers
The judiciary are perceived as the guardians of the rule of law.
The doctrine of the separation of powers is intrinsic to the rule of law because the principle requires that the executive is prevented from exercising its power arbitrarily.
The principle of the rule of law remains a fundamental principle of all modern liberal and democratic societies.
Content of the rule of law
In the book
The Rule of Law
Lord Bingham draws on the work of Dicey and sets out 8 fundamental principles which he believes make up liberal democracies. (this is a substantive view of the rule of law)
The law should be accessible, clear and predictable.
Legal issues should be resolved through legal processes and not through the exercise of administrative discretion by government officials.
The law should afford adequate protection for human rights.
The law should apply equally to all.
There should be access to justice in the courts without inordinate delay or expense.
Public officials should exercise the powers they have been granted in good faith and within the limits of those powers.
Legal and adjudicative processes should be fair.
The state should comply with its obligations under international law.
The requirement of legality
The government must respect and act within the confines of the law.
Any government interference with persons or property must be sanctioned by a legal authority in statute or in common law. (Entick v Carrington)
Parliament cannot be seen to have intended to restrict important rights and freedoms unless this is made clear. This is known as the legality principle. (ex p Simms)
Many public (governmental) bodies are incorporated by statute and so statutory provisions will define and limit their legal capcities.
The independence of the judiciary is essential because the courts determine whether government power is lawfully exercised.
Judicial review and the rule of law
Judicial review is the mechanism by which the rule of law is protected and arbitrary use of government power prevented.
The court can't review primary legislation but can assess whether any public body has complied with the provision in an Act.
The courts can review the legality of delegated legislation and it can assess whether the government has acted in accordance with the delegated legislation.
The court can assess whether the government has breached a common law constitutional right or has lawfully exercised a prerogative power.
The rule of law and parliamentary sovereignty
The rule of law operates as a check on executive power by requiring that the executive acts only on the basis of lawful authority, which is granted by Parliament (and prerogative powers).
The principle of the rule of law is used by the judiciary to restrict the effect of legislation in the interests of protecting individual liberties and rights.
This can be achieved through judicial interpretation of statutory provisions and by using common law (and ECHR) principles of justice and fairness.
R v SoS Home Department ex parte Simms [2000] 2 AC 115
Here, Lord Hoffmann observed that as part of his legality principle, Parliament could enact laws which undermine rights as long as the language of the legislation is completely clear.
"Fundamental rights cannot be overridden by general or ambiguous words... In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual"
Legal certainty
Legislation should be clearly drafted. Lord Bingham identifies the "torrent of legislation" as being a concern from the perspective of the rule of law.
A judge has described the Criminal Justice Act 2003 as "deeply confusing" and Lord Bingham says that legislation of this kind poses real problems of assimilation and comprehension, even to senior professional.
Legislation should also apply to future action, not retrospectively to past actions. This creates uncertainty as something that you do in the preset may become illegal and punishable in the future.
Retrospective legislation is sometimes passed when Parliament wants to overturn a decision of the courts or to put an accepted procedure on statutory footing.
Examples of retrospective legislation
War Damages Act 1965: This Act overrode the judgment of the HoL in Burmah Oil Co Ltd v Lord Advocate [1965]. Ultimately, the government was not obliged to pay damages for the property.
War Crimes Act 1991: This Act empowered UK courts to punish war crimes committed by people who were not subject to British jurisdiction at the time when the crimes were committed, namely during WW2.
Jobseekers (Back to work Schemes) Act 2013: This overrode the judgment of the Supreme Court in R (Reilly) v SoS for Work and Pensions [2013] UKSC 68 which required the Department of Work and Pensions to pay a rebate to claimants whose Jobseekers' Allowance had been withdrawn when they refused to take part in unpaid back-to-work training.
Authority for governmental power
The courts' role is to ensure that governmental bodies stay within the boundaries of what is allowed by legislation. This review will determine if an executive power exists or not. However, it is important to recognise that there are limitations to this power.
R v Somerset County Council, ex parte Fewings [1995] 1 WLR 1037
This case shows that limits can apply to the need for governmental bodies to use their power for their intended purpose.
The Local Government Act 1972 allowed councils to manage common land for the benefit, improvement or development of the area.
Somerset council used the power to ban stag hunting for ethical reasons.
The court found that they could only use this power to manage the deer herd, or to preserve or enhance the amenity of the area. The view that hunting was morally unethical had nothing to do with such questions and so the Council used their powers unlawfully for an improper purpose.
Discretionary power
Legislation shouldn't try to prescribe a single lawful course of action in every situation. Some matters are left to the discretion of the executive.
Therefore, legislation often confers a discretion on the decision-maker as to how to exercise the powers they've been given.
In the post-war period, the volume of discretionary power given to the executive increased notably.
Rule of law thinkers, such as Dicey, have a natural suspicion of discretionary powers because they think that less tightly restricted power gives the executive greater potential to use their power in an arbitrary way.
Liversidge v Anderson [1942] AC 206
Under Reg.18B of the Defence Regulations, the Home Secretary had powers to imprison anyone if he had reasonable cause to believe tht they were of hostile origin or association.
Liversidge was detained without trial. He sued the Home Secretary for false imprisonment. He claimed that the 'reasonable cause to believe' imputed that there had to have been evidence.
Majority of the HoL disagreed and accepted the Home Secretary's interpretation and they held that there was no objective requirement as long as his belief was an honest one.
Lord Atkin was in the minority and accused the majority of being 'more executive minded than the executive'
IRC v Rossminster Ltd [1980] AC 952
This case concerned the Inland Revenue Commissioners's (IRC's) powers under the Taxes Management Act 1970 to enter and search premises and seize documents if they had reasonable grounds for suspecting an offence and reasonable cause to believe that the items would be needed as evidence in relation to tax fraud.
IRC officials entered Rossminster Ltd's premises without informing its directors and seized documents.
Lord Denning found firmly against the IRC and was concerned that no details of the suspected offences was in the warrant and that the tax authorities had been allowed unfettered authority to remove documents.
In contrast, the HoL put emphasis on the strict words of the statutory provision, which didn't require specific details about the nature of the fraud suspected.
As a consequence, the majority of the law lords found that the IRC's actions were lawful.
Equality before the law
The law applies equally to everyone but there are some exceptions.
The monarch is above criminal law.
Judges in higher courts are immune from civil litigation for acts done within their official jurisdiction.
MPs can't be sued for what they say in Parliament - parliamentary privilege.
Diplomatic immunity
Children are not subject to the same laws as adults.
There could be barriers to justice as a result of cuts to legal aid funding over the last decade.