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Workshop 7.2 - The rule of law: tensions - Coggle Diagram
Workshop 7.2 - The rule of law: tensions
Administrative discretion
Administrative discretion given to government by Parliament (via legislation) creates tension with the rule of law.
In practice, countless decisions are made every day by administrators charged with the duty of running our society. What matters is that the decisions should be made on stated criteria that they should be open to legal challenge.
Access to justice
The most obvious barrier to justice is not having enough money to pay legal fees or not being able to secure help for free.
Cuts to the government's legal aid budget have made it increasingly difficult for criminal defendants, and those involved in civil claims, to obtain qualified legal representation.
This has led to an increase in in self-representing 'litigants in person' which means cases can take longer and the risk of unjust outcomes increases.
There have also been unwelcomed developments such as McKenzie Friends who are non-legally qualified unregulated advisors who charge a fee for supporting someone in court.
In 2019, the Chair of Parliament's Justice select committee called for the ban of McKenzie Friends after the High Court ruled that one of their advisors was negligent in wrongly advising a 70 year old claimant who was left with a five figure legal costs claim.
Fees and costs
Starting a case as a claimant costs money in court fees ad sometimes the risk of having to pay the defendant's costs (if the claimant loses) deters people from pursuing claims.
R(Unison) v Lord Chancellor [2017] UKSC 51
The Supreme Court found that the Employment Tribunals and the Employment Appeal Tribnal Fees Order 2013 (this introduced a fee for bringing claims in the tribunals) was unlawful as it prevented access to justice.
The Supreme Court reiterated that the constitutional right of access to the courts was inherent in the rule of law.
In order for the courts to carry out their functions, people must have unimpeded access to them.
Equality before the law
The law should apply equally to everyone except if there is objective differences which justify differentiation.
E.g. Young children are less mature than adults. The objective difference being age and maturity.
Inequality of application
Schedule 7 of the Terrorism Act 2000 allows police,customs, or immigration officers to stop and search anyone (and hold them in ports or airports) without any grounds for suspecting that person is involved in an terrorist or criminal activity.
Under Schedule 7, the individual can be:
a) Detained and questioned for up to nine hours.
b) Searched and have their belongings retained for up to 7 days.
The person detained has no legal representation whilst detained at a port or border.
It is a criminal offence if the person doesn't answer questions or obstructs the exercise of the functions under the Act.
If detained at a police station, officers can take the person's biometric data.
Recent research shows that Asian passengers are 42 times more likely to be stopped under Schedule 7 than their white counterparts.
On the face of the law, the power applies equally to everyone travelling through airports or ports. But in reality, there is wide discretion given to officers which undermines the rule of law in its application as the powers are used disproportionately against particular racial groups.
The legislation itself doesn't purport to different treatment to different groups of people, but the way its applied does do so.
Human rights in the UK - the repeal of the HRA?
The ECHR is the main source of UK human rights law.
ECHR rights are part of UK law as they have been largely incorporated into our domestic legal system by s 1 of the HRA 1998.
While the HRA puts fundamental rights on a statutory footing and obliges public authorities to comply with them, there are long standing and developed equivalent rights under the common law.
Nevertheless, the HRA provides greater clarity and certainty.
The repeal of the HRA has been urged by some politicians for many years. A Bill of Rights Bill was introduced in 2022 proposing changes to the framework for rights protection in the UK but was withdrawn by the Lord Chancellor, Alex Chalk,
Unfair legal and adjudicative processes
The right to a fair trial is enshrined in Article 6 of the ECHR and in the common law of the UK.
Lord Bingham says that the right to a fair trial is a "cardinal requirement of the rule of law".
Liberty has identified the following threats to the right to fair trial:
The line between criminal and civil law has been blurred by the widespread use of ABSOs and other civil orders.
The UK has signed up to fast-track extradition treaties which prevent UK courts from considering whether there is evidence to justify the extradition request.
A system of secret courts and evidence has developed, under which those accused of terrorism can be left languishing on control orders for years on end without being told why
Non-compliance with international law
International law contains generally agreed-upon standards of executive conduct which can be seen as human rights norms.
In June 2018, the parliamentary Joint Intelligence and Security Committee (JISC) identified instances of government complicity in the unlawful treatment of detainees.
Dominic Grieve, Chair of the JISC at the time, identified a number of key current challenges to the rule of law. He described the experience of trying to persuade government officials that laws and rules were there to help them ad explained how cutting corners and failing to ask rule of law questions led the government into error in the treatment of detainees suspected terrorists.
Government criticism of judges
The separation of powers also requires the executive to respect the role of judges as the final arbiters of what the law means.
There has been a trend in recent years for the government to criticise the judiciary overtly.
Boris Johnson went as far as to say that he 'profoundly disagrees' with the UKSC's judgment in Miller 2
Developing challenges
EU Withdrawal
The EU Withdrawal Act created Henry VIII powers which allowed government to change primary legislation by SI without further recourse to Parliament.
In October 2019, the government withdrew a SI following a legal challenge. The SI empowered government officials to amend VAT on customs ad excise law by public notice - not by law.
The us of public notices in this way has been likened to making law by proclamation as in the time of Henry VIII.
Automated decision-making
AI and algorithm-based decision making play an increasing role in public administration.
It is used in post-Brexit online applications for leave to remain in the UK?
How can someone appeal a decision made by an algorithm?
Its alignment with the rule of law is questionable as it undermines the principle of judicial transparency, accessibility and certainty.
Parliamentary sovereignty
The principles of parliamentary sovereignty is a dominant constitutional principle in the UK.
When upholding the rule of law, the judiciary is doing so in relation to the executive,
Most legal authority is now provided for in statute and given supremacy.
Parliament can pass any law it wants.
The ultimate question is what would the courts do if Parliament passed an Act which fundamentally undermined the UK as a rule of law state (e.g. by abolishing JR or changing the rules of democracy)?
This was discussed in obiter discussion in Jackson v Attorney General [2005] UKHL 56
Safety of Rwanda Act
The Safety of Rwanda (Asylum and Immigration) Act was passed in 2024.
This enabled the policy of removing unlawful migrants to Rwanda to go ahead, s 1(2)(b) of the Act records the judgement of Parliament that the Republic of Rwanda is a safe country.
This contradicted the conclusion of the UKSC in R(AAA(Syria) and others) v SoS for the Home Department [2023] UKSC 42 which found that there was a real risk in sending people to Rwanda.
Section 2 of the Rwanda Act requires every decision maker (courts and tribunals) to treat Rwanda as a safe country in relation to any immigration cases or appeals.
This restricted the autonomy of the judiciary.
Following the general election on 4 July 2023, the new government has ended the Rwanda policy and is expected that the Act will be repealed and replaced.