Protected by:
Courts
Parliament
Government (Lord Chancellor)
Constitutionalism and the Rule of Law:
The rule of law and separation of powers go hand in hand. The separation of powers establishes a rule of rules for the branches of government – this is arguably the rule of law.
The rule of law means many different things. Many scholars are sceptical of the idea of the rule of law as laws cannot in themselves ‘rule’ without human actions.
Concepts of the Rule of Law:
Thick and Thin Conceptions:
A content-free (thin) conception of the rule of law sees it simply as a rule of rules, ignoring rights or principles. As long as they are followed, the rule of law is upheld.
A content-rich (thick) conception of the rule of law is that it is an articulation of the rights-based character of our legal order. Therefore, the rule of law is only upheld when rights are protected.
Dicey’s Concept:
General rules given by Parliament are superior to arbitrary commands.
Equality before the Law for all.
The rule of law is an expression of the common law and the protections it grants us.
Dicey believed that the sovereignty of Parliament favours the rule of law as a command of Parliament only becomes binding after passing through the Commons, Lords and then the Crown - the 'Crown in Parliament'.
‘The law of the constitution is not the source but the consequence of the rights of individuals.’
Jenning’s Concept:
Jennings believed that the powers of the government and rights of the individual are both established from the rule of law.
Application of the Rule of Law:
Conflict between the Rule of Law and the Executive:
The rule of law is often used to protect citizens against malicious power of the executive.
In Entick v Carrington, Camden CJ states that ‘if it is a law, it will be found in our books. If it is not there, it is not law.’
In Duport Steels, the court stated that ‘it cannot be too strongly emphasised that the British constitution, though largely unwritten, is firmly based on the separation of powers: Parliament makes the laws, the judiciary interprets them.’ Diplock LJ showing the connection between the separation of powers and the rule of law, explaining how neither should overstep their own bounds.
In M v Home Office, an order to the Home Secretary to return a deported asylum seeker was ignored. It was held that the court could overrule mandatory orders from the Crown (and, by extension, the government). Some had argued that this gives the judiciary too much power, undermining parliamentary supremacy.
In R v Home Secretary, the House of Lords held that it was unlawful for the Home Secretary to review criminal tariffs because ‘the fundamental principle that a sentence lawfully passed should not retrospectively be increased.’ If the Home Secretary made the decision, the decision would be made by the executive, undermining the rule of law. Now, the trial judge determines the tariff.
Limitations to the Rule of Law:
The rule of law is limited by parliamentary sovereignty and the laws that are enacted by Parliament.
In IRC v Rossminster, the IRC were authorised by legislation to enter premises and seize ‘any things whatsoever’ reasonably believed to be evidence of serious tax fraud when they have a warrant. The Court of Appeal holds the warrant invalid. The House of Lords overrules the Court of Appeal, distinguishing from Entick because of the statute that enabled the warrant.
In Malone v MPC, it was held that telephone tapping was not unlawful, even though warrants were not authorised by statutes or common law. The court ruled that because the tapping did not take place on M’s property, his rights were not infringed. M took case to the ECtHR, which ruled that the MPC were in breach of Art 8 of ECHR. Note: this caused change in legislation.
Megarry VC: ‘England is not a country where everything is forbidden except what is expressly permitted: it is a country where everything is permitted except what is expressly forbidden.’
In Burmah Oil v Lord Advocate, the government passed a statute that prevented compensation claims against the government during wartime. The House of Lords said it was a valid use of their power, but they were still obliged to pay the compensation. The House of Lords isn’t directly undermining the doctrine of parliamentary sovereignty, but still giving a just outcome.
Reformulation of the Rule of Law:
The courts have taken the view that it is their responsibility to uphold rights and the rule of law.
In R v Horseferry Road Magistrates Court ex Bennett, police officers in the UK informed police officers in South Africa that there was an arrest warrant for B. The UK and SA had no extradition treaty. B was arrested in SA, deported to New Zealand via a transfer in the UK. B was then arrested in airport in the UK and stood trial in the UK. B requests judicial review as he was brought into the country under unlawful processes. The House of Lords nullify the case.
‘if there has been a serious abuse of power the court should express its disapproval by refusing to act upon it’.
In Axa, ‘The rule of law requires that judges must retain the power to insist that legislation of that extreme kind is not law which the courts will recognise.’
The court will protect rights as long as parliament have not expressly stated that it limits them. This respects parliamentary sovereignty while protecting citizens too.
In Jackson, Lady Hale states ‘the courts will, of course, decline to hold that Parliament has interfered with fundamental rights unless it has made its intention crystal clear’.
Constitutional Significance of the Rule of Law:
Parliamentary supremacy and the rule of law go hand in hand - there is a 'bipolar sovereignty'.
In X v Morgan Grampian, ‘the rule of law rests upon twin foundations: the sovereignty of the Queen-in-Parliament in making the law and the sovereignty of the Queen’s courts in interpreting and applying them’.
UK has no constitution, but significant constitutional documents. The judiciary have begun to identify statutes that should be protected to maintain the rule of law.
In HS2, Heuberger LJ for the Supreme Court: ‘The common law itself also recognises certain principles as fundamental to the rule of law.’
References:
Cases Mentioned:
Entick v Carrington [1765] EWHC KB J98
Duport Steels v Sirs [1980] 1 All ER 529, 541
M v Home Office [1994] 1 AC 37
R v Home Secretary, ex p Pierson [1998] AC 539
IRC v Rossminster [1980] AC 952
Malone v Metropolitan Police Commissioner [1979] Ch 344
Burmah Oil v Lord Advocate [1965] AC 75
R v Horseferry Road Magistrates’ Court, ex p. Bennett [1994] 1 AC 42
X Ltd v Morgan Grampian (Publishers) Ltd [1991] 1 A.C. 1
AXA General Insurance Limited and others v The Lord Advocate and others (Scotland) [2011] UKSC 46 (Lord Hope JSC)
R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3 (Lord Heuberger JSC)
R (on the application of Jackson and others) v Attorney General [2005] UKHL 56 para 163
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