Rule of Law and Powers

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Principles of the British Constitution

Lord Lester (PAC Report, 2003) = "...The difficulty about our unwritten, flexible, permeable, part monarchical and part parliamentary constitution is to make sure that those principles [i.e. the rule of law and parliamentary sovereignty] apply in practice."

The Rule of Law (Dicey 1885) dictates that:

  • Nobody is above the law
  • Everyone is equal before the law
  • No set of laws exist which are above the courts

Bingham (in 2006) said the following about the rule of law: "...all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts..."

  • So Bingham says the rule of law is about knowing what the law is and having access to the law
  • In R v Somerset County Council, Ex p. Fewings [1995], it was said that the police have to point to a law if they wish to restrict your liberty. In other words, to protect people from arbitrary interference the police can only detain someone if there is a source of law for doing so

Rule of Law and Human Rights

"It is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law" (Universal Declaration of Human Rights 1948)

  • So, the Rule of Law serves to protect the principles of Human Rights

In M v Home Office (1993), the court questioned whether or not the crown is immune from the legal process. As we know, Dicey said nobody is above the law so is it really possible for the crown to be immune from the law?

  • The Court held that nobody is above the law according the rule of law

Difficulties with upholding the rule of law

"Under the complex conditions of modern life no government can in times of disorder, or of war, keep the peace at home, or perform its duties towards foreign powers without occasionally using arbitrary authority." (Dicey: Introduction to the Study of the Law of the Constitution)

  • So, this is saying that it is hard to uphold the Rule of Law in challenging circumstances e.g. where there is terrorism
  • So occasional the Rule of Law will have to be ignored

But it is important the rule of law is complied with where it can be: see the case of R (on the application of S) v Secretary of State for the Home Department [2006]

Article 15 of the European Convention on Human Rights (ECHR) allows for States to derogate from certain rights within the ECHR in times of war or other public emergency threatening the life of the nation

  • Following 9/11 the British government issued a derogation which gave the Government extended power to detain foreign nationals on terrorism charges without trial – this derogation therefore meant the Government did not have to comply with Article 5 of the ECHR (the right to liberty)
  • The Belmarsh case looked at the legality of the detention of some foreign nationals under this derogation → the court held the Government had exceeded their powers by using a derogation here: the detention was discriminatory and disproportionate
  • In response to this ruling the Government introduced Prevention of Terrorism Act 2005 which replaced idea of detention without trial and implemented something called ‘control orders’ → control orders put suspected terrorists under a form of house arrest as it was unlawful for the government to detain them in prison

Separation of Powers

Definition: "...All would be lost if the same man or the same body of principal men either of nobles, or of the people, exercised these three powers: that of making the laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals." (Montesquieu ‘The Spirit of Laws’ (1748))

  • So, to have a proper constitutional settlement you need clearly separated and independent powers of the three branches of Government: the legislature, the executive, and the judiciary
  • These branches check the powers of each other

Separation of personell → no individual should simultaneously occupy a place in more than one branch of Government

  • The Lord Chancellor used to be in a position, which violated the separation of powers as he had a seat in all three branches

Avoidance of interference → no branch of Government should interfere in the operation of another

Separation of function → no branch of Government should perform functions which are the responsibility of another

Issue of elective dictatorship:

  • An ‘elective dictatorship’ occurs if we have a Government with a large majority in Parliament such that they can push through any legislation they like. In essence, the Executive and the Legislative branches of Government have their powers fused together enabling the Government of the day to do whatever they want

Article 6 of the European Convention on Human Rights (ECHR)

This is the right to a fair trial

Judges must be independent and impartial

  • See the case of McGonnell v UK where the court held there was a lack of objective impartiality in this case because the bailiff presiding over the planning permission application sat in both an executive and legislative position

It is bought into UK law through the Human Rights Act 1998

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Why enact the Constitutional Reform Act 2005?

This is partly a response to the case of McGonnell v UK (2000)

It created a clear separation of powers, greater compliance with Article 6 of the ECHR, and a more independent and transparent basis for judicial appointments

It also created the Supreme Court (2009)

The Role of the Lord Chancellor

“I clearly believe that the role of the Lord Chancellor in upholding the independence of the judiciary - an important unwritten article of our constitution - is vital. [T]he office acts as a strong buffer between the judiciary and the executive.” (Lord Irvine, Lord Chancellor, March 2000)

Advantage of the Lord Chancellor being a member of the executive:

  • "As a member of Cabinet he can act as an advocate on behalf of the courts ... He can explain to his colleagues in the Cabinet the proper significance of a decision which they regard as being distasteful … As long as the LC is punctilious in keeping his separate roles distinct the separation of powers is not undermined..." (Lord Woolf)

Tony Blair had a cabinet reshuffle in 2003 and shuffled out the Lord Chancellor from Cabinet – the flexibility of the constitution allowed him to do that

  • There was no consultation and was argued what he did was unprofessional

Historically, the Lord Chancellor was the speaker of the House of Lords, a senior member of cabinet, head of the judiciary, and appointed the judiciary

However, since the Constitutional Reform Act 2005, the speaker of the House of Lords is now elected, he is prohibited from sitting as a judge, he can be any Minister not necessarily a lawyer, and the appointed of judges is now done on a more independent and transparent basis (Judicial Appointments Commission)

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