Rule Of Law - Public Law

Front 1

In the UK, what 2 legal affects does the Rule of Law produce?

Back 1

It influences the courts when they interpret legislation. This means that whenever possible, courts interpret legislation in a way that gives effect to rule of law principles.
Second, the RoL determines the validity of government action and some legislation. This means that if a government Minister makes a decision that affronts rule of law principles, the courts will have no hesitation in issuing a declaration.

Front 2

The most modest way in which the rule of law can be conceived is as a bare principle of legality; describe this principle.

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The principle of legality means that in order for something to be regarded as a law in must be enacted in the way the legal system prescribes. In the UK this means, a law is an Act of Parliament which has been passed by both Upper and Lower houses and received royal assent. A measure that has skipped one of these steps has failed to adhere to the required process. Thus the principle of legality ensures that only authorized institutions are able to make law.

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The principle of legality morally neutral, what does this mean?

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It means that any law will pass with respect to the principle of legality, providing they follow the system which is set up.

Front 4

Does the Constitutional Reform Act 2005 adversely affect the rule of law?

Back 4

No it does not adversely affect the rule of law.
s. 1 CRA 2005:
This Act does not adversely affect
the existing constitutional principle of the rule of law …

Front 5

Entick v Carrington

Back 5

Entick v Carrington [1765] is a leading case in English law establishing the civil liberties of individuals and limiting the scope of executive power. The case has also been influential in other common law jurisdictions and was an important motivation for the Fourth Amendment to the United States Constitution.In 1762, the King's Chief Messenger Nathan Carrington, and three other King's messengers, into the home of writer, John Entick "with force and arms" and seized Entick's private papers. Entick was arrested. The King's messengers were acting on the orders of Lord Halifax "to make strict and diligent search for . . . the author, or one concerned in the writing of several weekly very seditious papers. Entick sought judgment against Carrington and his colleagues who argued that they acted upon Halifax's warrant. A jury returned a special verdict finding that the defendants had broken into Entick's home "with force and arms" and searched for and taken. Judge Camden held that Halifax had no right under statut

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There are 3 core rule of law principles - what are they?

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1. CORE RULE OF LAW:

2. EXTENDED RULE OF LAW:

3. SUBSTANTIVE RULE OF LAW:

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What is the Core rule of Law?

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At the core the Rule of law should prevent government from acting without legal authority. This means outside it's legal institutions.

“Government by Law” requires that the state has legal authority for all of its actions

Dicey regarded this concept as safeguarding “freedom” (by protecting individual interests) and “formal equality before and under the law” (equality of treatment in the courts).

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Equality before the law has one major premise what is it?

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(i) No General Special Privileges for Officials

**Exceptional Examples of Privileges include though
[1] Diplomatic Immunity
[2] Members of Parliament
[3] Judicial Immunity

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Malone v Metropolitan Police Commissioner

Back 9

[1979] James Malone was on trial on suspicion of dealing in stolen goods. In the course of the trial it became clear that the police had intercepted Malones telephone calls thereby obtaining evidence of alleged criminality. Sir Robert McGarry B.C.E. rule that no trespass was committed by the police but the interception of communications was "a subject which cries out for legislation". Megarry VC said that the executive could do anything that was not prohibited by law (purporting to reverse Entick v Carrington). The Court refused to declare that an act of telephone tapping carried out by the post office, at the request of the police, was not unlawful because an act which is not specifically prohibited is permitted

‘[A]part from certain limited statutory provisions, there was nothing to make governmental telephone tapping illegal; … That being so, there is no general right to immunity from such tapping. England, it may be said, is not a country where everything is forbidden except what is expressly permitte

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Malone v UK (1985) 7 EHRR 14, [64].

Back 10

Malone sued the UK and won.


‘As telephone conversations are covered by the notions of ‘private life’ and ‘correspondence’ within the meaning of Article 8, the admitted measure of interception involved an ‘interference by a public authority’ with the exercise of a right guaranteed to the applicant under Article 8(1).’

Principle: His interest was affected, identifiable, and protected by the ECHR Art. 8 - right to Privacy.

Front 11

M v Home Office [1994] 1 AC 377.

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[1993] Judicial Review – Home Secretary cannot ignore rule of law
M was to be deported. The Home Secretary’s counsel gave an undertaking that this would not happen until after the hearing of the appeal. However, M was deported. The court ordered that M should be taken off the plane when it stopped at Paris. The Home Secretary did not consider himself bound by the order and M was not taken off the plane.

Held: The Home Secretary was held in contempt of court but no punishment imposed.

The "rule of law" requires even government ministers to accept and obey the orders of the courts.

M disappeared shortly after his arrival in Zaire and was never heard from again.


1. Home Office orders deportation of M, an Asylum Seeker
2. M challenges this deportation order before Garland J
3. Home Office ignores the injunction issued by Garland J and deports M

Principle: Equality before and under the law
(i) No General Special Privileges for Officials

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Pedro v Diss [1981] 2 All ER 59, 64 (Lord Lane CJ).

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Principle: No General Special Privileges for Officials.

This means that if one is certain that a police officer is making an illegal arrest (defined??) they can resist. This is because no official is above the law. However if it is a legal check or arrest one cannot resist.

‘A person who is being lawfully arrested by a police officer or, it follows from our judgment, a person who is being lawfully detained, may not rely upon the justification of self-defence if he assaults the police officer in order to resist or escape arrest or detention; but a person who is not being lawfully arrested, or formally and lawfully detained, may do so.’

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The extended rule of law is broader than the core rule of law. Although it still maintains that the government is 'under' the law, it contains 3 main premises - what are they?

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i Non-retroactivity of law
ii Clarity and stability of law
iii Consistent and impartial interpretation of law

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Name at least 4 qualities that the law should have before they will be upheld in a liberal democracy. According to Lon Fuller:

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(i) Overarching rules (ii) Published
(iii) Prospective not retroactive (iv) Clear
(v) Not contradictory (vi) Not impossible to fulfil
(vii) Stable (viii) Announced then followed

Front 15

R (Alconbury) v Secretary of State for the Environment

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The principles of judicial review give effect to the rule of law. They ensure that administrative decisions will be taken rationally, in accordance with a fair procedure and within the powers conferred by Parliament.’

Principle: the separation of powers as a fundamental part of the Rule of Law is maintained. The judiciary can 'check' the executive and legislative branches.

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Phillips v Eyre (1870)

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Point 1: non-retroactivity of the law.


‘The general principle of legislation by which the conduct of mankind is to be regulated ought to deal with future acts and ought not to change the character of past transactions carried on upon the faith of the then existing law.’


Principle: the law is prospective not retroactive

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What is Burmah Oil v Lord Advocate an example of?

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Retroactivity in the UK. Court recognizes and awards damages and then Parliament passes an Act which nullifies damages.

->House of Lords judgment in favour of £31 million in damages to Burmah Oil.

-->Result Overturned by statute: War Damages Act 1965

Front 18

Waddington v Miah [1974]

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Concerned the question of whether the Immigration Act of 1971 was retrospective, and contrary to article seven of the European Convention.

The Act was in effect retrospective but the House of Lords ruled that it was not. Broadly speaking a 'racist' campaign was being taken against Commonwealth citizens to control immigration into this country.

Principle: This is before the CRA 2005! Now we have a completely independent judiciary that does not share the House with the Upper chamber.

Think s. 1 CRA 2005 which states: This Act does not adversely affect
the existing constitutional principle of the rule of law …

In fact the CRA was largely revamped the independence of the judiciary which is a fundamental component of the Rule of Law.

Front 19

Name one article from the ECHR that has to do with a policy of non-retroactivity.

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Article 7(1) ECHR.
No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law *at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

You can't be tried now for something that wasn't a crime before - that would be retroactive law!

Front 20

What did the renown R v R case have to do with non-retroactivity? How did the supreme court justify changing the law and sentencing following?

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(ii) Non-Retroactivity and the ECHR

(Lord Lane CJ).
Hale’s ‘History of the Pleas of the Crown’ 1736: ‘the husband cannot be guilty of rape committed by himself on his lawful wife [as she has] given herself up in this kind.’

By determining that this common law rule no longer applied in the late 20th Century,
Lord Lane CJ:

‘This is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it.’


Furthermore as found in SW & CR v UK (1996),

‘[T]he abandonment of the unacceptable idea of a husband being immune against prosecution for rape of his wife was in conformity not only with a civilised concept of marriage but also, and above all, with the fundamental objectives of the Convention, the very essence of which is respect for human dignity and human freedom.’

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R (Gillan) v Metropolitan Police Commissioner [2006]

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‘The exercise of power by public officials, as it affects members of the public, must be governed by clear and publicly accessible rules of law. The public must not be vulnerable to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than that for which the power was conferred. This is what, in this context, is meant by arbitrariness, which is the antithesis of legality.’

The principle: the law must have clarity and stability.

Front 22

To what extent did T. Hobbes, Leviathan, (1651)?

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‘[I]f a man be trusted to judge between man and man, it is a precept of the law of nature that he deal equally between them. For without that, the controversies of men cannot be determined but by war. He therefore that is partial in judgement, doth what in him lies to deter men from the use of judges and arbitrators, and consequently, against the fundamental law of nature, is the cause of war.’

Principle: Without impartial and consistent (fair) judgement or arbitration society will have biased unreasonable verdicts and the social contract will collapse. A consistently impartial judiciary is a part of the extended rule of law.

Front 23

R v Horseferry Road Magistrates Court, ex parte Bennett [1994]

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Justices - Committal proceedings - Jurisdiction - Defendant removed from South Africa to England - Collusion alleged between police forces - Arrest in London lawful - Whether court having jurisdiction to inquire into circumstances of defendant's presence within jurisdiction - Whether court empowered to refuse trial where abuse of process shown - Whether jurisdiction vested in justices


Principle: Consistent and impartial application of the law - CPS cannot illegally haul in alleged criminals - or they may walk free. CPS nor its ministers are above the law.

‘In the present case there is no suggestion that the appellant cannot have a fair trial … . If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.’


LORD S

Front 24

R v Lord Chancellor, ex parte Witham [1998]

Back 24

Court fees were levied too high for low income person.

ROSE LJ.
I agree. By s 130 of the Supreme Court Act 1981, Parliament conferred on the Lord Chancellor a simple power, subject to the concurrence of the Treasury and judicial Heads of Division, to prescribe Supreme Court fees.
There is nothing in the section, or elsewhere, to suggest that Parliament contemplated, still less conferred, a power for the Lord Chancellor to prescribe fees so as totally to preclude the poor from access to the courts. Clear legislation would, in my view, be necessary to confer such a power and there is none.
Accordingly, this application succeeds and we shall make the declaration sought.
Application granted. Leave to appeal refused.

Principle: Consistency and impartiality in access to the law.

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R v Felixtowe Justices, ex parte Leigh

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MAGISTRATES - THE OFFICE AND JURISDICTION OF MAGISTRATES - LIABILITY OF MAGISTRATES; PROTECTION; INDEMNITY - CRIMINAL MISCONDUCT - GROUNDS FOR GRANTING - OTHER CASES - WITHHOLDING NAMES OF JUSTICES — PRINCIPLE OF OPEN JUSTICE

Principle consistent open justice dispersed impartially and from case to case.

Front 26

Refresh your memory by naming the three rule of law formats, or parts.

HINT: 1st is the 'core rule of law'

Back 26

i. the core rule of law
ii. the expanded rule of law
iii. the substantive rule of law

Front 27

The substantive rule of law begins with presenting a problem with the core rule of law - that the core rule of law is too harsh, why?

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The substantive rule of law states that the core rule of law has potential to be too radical or harsh because a society could practice the rule of law better than a country that uses the democratic process in politics.

‘A non-democratic legal system, based on the denial of human rights, on extensive poverty, on racial segregation, sexual inequalities, and religious persecution may, in principle, conform to the requirements of the rule of law better than any of the legal systems of the more enlightened Western democracies. ... It will be an immeasurably worse legal system, but it will excel in one respect: in its conformity to the rule of law.’
- J. Raz, Authority of Law (Oxford, 1979)

Principle: substantive equality is a premise of the substantive rule of law.

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The substantive rule of law also mentions a problem with the extended rule of law - particularly with procedure, what is the problem?

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The problem is the lack of substantive equality in access to the legal system particularly the courts. This means that a wealthy person can by much better legal advice for the same problem that a poor person could.

M. Horwitz, ‘The Rule of Law, an Unqualified Human Good?’ (1976-1977)
‘[The rule of law] undoubtedly restrains power, but it also prevents power’s benevolent exercise. It creates formal equality but it also promotes substantive inequality … .

The problem with pure procedural justice is that it enables the shrewd, the calculating, and the wealthy to manipulate its forms to their own advantage.

Front 29

Which of the 3 components of the rule of law aims to promote *substantive equality?

Back 29

The substantive rule of law.

Think - Social Welfare provision in the UK: Health Care, Education, and Social Housing

Front 30

R (McDonald) v Royal Borough of Kensington and Chelsea

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Right to hospice/old-age/senior care - removal of which angers certain populations when such services are withdrawn:

Case:
human dignity - ill senior citizen would not be able to make it to the restroom without aid during the night. Substantive equality aims to promote equal access to these as 'public services' paid for out of tax/crown revenue.

Principle: Substantive equality via the substantive rule of law.

Front 31

Name the 3 tenets of the substantive rule of law?

Back 31

1. Substantive equality
2. Common Law Supremacy
3. The Principle of Legality

Front 32

R (Jackson) v Attorney General [2006]

Back 32

It was ruled that this was an ACT of Parliament. Acts of Parliament are primary legislation and not delegated.

Principle of common law supremacy. Balancing act - Parliament can not question the judiciary's role of checking legality anymore than the judiciary should challenge Parliamentary sovereignty.

Front 33

Anisminic v Foreign Compensation Commission

Back 33

Two main issues with Anisiminic
1 whether the tribunal had made an error of law in construing the term "successor of title" under the subordinate legislation.
2. in regards to legality, did the appellate court have the jurisdiction to intervene in the tribunal's decision. Section 4(4) of the Foreign Compensation Act 1950 stated that:
"The determination by the commission of any application made to them under this Act shall not be called into question in any court of law".
This was a so called "ouster clause".

A tribunal established that an Act prevented someone from claiming compensation.
The decision was appealed to the Supreme Court
The Ministry claimed that the Court had no Auth because of the "ouster clause"
The Supreme Court can check what it wants - it is the highest court in the land - and is only bound by the ECHR.
If it does check for legality and finds an error it will quash the prior ruling.
Compensation was allowed.

Principle of legality. Just remember basic court structure and pow

Front 34

Which Act allows for the immediate arrest and detention (without bail or trial)?

Which old principle of the rule of law does this Act work-around?

Back 34

1. Part IV Anti-Terrorism Crime and Security Act 2001.

'The Secretary of State the power to detain those he certifies as suspected international terrorists, despite charging them with no offence.'

2. the principle of 'habeas corpus' - the old law preventing illegal detention.

Front 35

A v Secretary of State for the Home Department [2004]

- what was the result of this?

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As a consequence, the House of Lords made a declaration of incompatibility under section 4 of the Human Rights Act 1998, and allowed the appeals.

Lord Hoffman:

‘The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these.’

Front 36

Ghaidan v Godin-Mendoza

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Section 3 of the Human Rights Act 1998 is a provision of the Human Rights Act 1998 that enables the Act to take effect in the United Kingdom.

this section requires courts to interpret both primary and subordinate legislation so that their provisions are compatible with the articles of the European Convention of Human Rights, which are also part of the Human Rights Act.

Principle of legality

Front 37

What case has to do with whether the complete ban on oral interviews between journalists and prisoners is lawful?

i.e. Prison Service Standing Order

What is the legal principle?

Back 37

R v Secretary of State for the Home Department, Ex parte Simms

the legal principle of legality.

Lord Millett:

"Following the unlawful policy of the Secretary of State, the governors peremptorily refused permission in each of the cases under appeal without considering the merits of the request or inviting representations from the journalists. I would allow the appeal and make the order proposed by my noble and learned friend Lord Steyn."