Rule of Law

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Rule of Law

What is the rule of law?

• Harden & Lewis: a “cluster of credos” which defend the “collective beliefs of the people”

Constitutional Reform Act 2005: “nothing in this act shall detract from the existing constitutional principle of the rule of law”

Diceyan rule of law:

• Legality

• Certainty

• Equality

• Access to justice

Procedural rule of law is designed to ensure that “men were ruled by law and not by caprice” – it is a tool against arbitrariness

Prerogative power as the “residue...of arbitrary authority”

• Hayek: sharing Dicey’s resistance to big government, that green light political systems are an affront to the rule of law because discretion blurs certainty

• Nicola Lacey: the problem with applying the “legal paradigm” to administration (rules knowable in advance with due process) is that managerial discretion is automatically viewed as an affront to the rule of law

Entick v Carrington

King’s messenger broke into C’s home with orders from Lord Halifax, Sec of State – Wilkes (radical prevented from taking his seat in the HoC) sympathiser - claimed for trespass

Held: Lord Halifax had no authority in the form of statute or common law. The State may do nothing unless it is expressly authorised by law, whereas the individual may do anything unless it is expressly forbidden by law

• Camden CJ: “bound to show by way of justification, that some positive law has empowered or excused him”

• Merkur Island Shipping Corp per Lord Diplock – the law must have clarity

• Ex p Bennett per Lord Griffiths – the role of the courts to uphold rule of law & to not permit action that threatens its breach AND HR

• Waddington v Miah – the Immigration Act could not have retrospective impact

GCHQ Case

GCHQ Civil servants sought JR of Maggie Thatcher’s government’s use of prerogative powers to prevent their membership to unions

Held: prerogative powers are open to JR, however only where it falls into the list of justiciable matters.

NB: this is an example of how a thin rule of law cannot effectively check the executive

Ex p Bentley

Posthumous pardon sought for ‘let him have it’ Bentley

Held: prerogative power of pardon was flexible & didn’t need to be predicated on innocence – could be conditional pardon. A declaration was deemed unsuitable here however they recommended Home Secretary re-examine his exercise of prerogative power of pardon

Must be placed over the separated powers to enable judiciary to have bite

M v Home Office

Asylum application of M & JR proceedings commenced – counsel for Crown gave undertaking that he would not be removed (though they did not accept this). However he was removed in breach of this & judge ordered return of M to UK. Crown said no capacity of judge to grant injunction

Held: Crown & ministers no immunity to contempt proceedings & power to grant injunctions under Supreme Court Act 1981

• Lord Templeman: if executive were immune from contempt proceedings/injunctions “establish the proposition that the executive obey the law as a matter of grace and not as a matter of necessity, a proposition which would reverse the result of the Civil War”

Substantive rule of law:

This is against the Diceyan orthodox conception which finds the rule of law must be within the ordinary law – they are not “special privilege[s] insured...by some power above the ordinary law”. The problem is that this definition...

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