Solicitors Qualifying Examination

The Rule of Law | Public Law – SQE1 & SQE2 Exam

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The Rule of Law

Formalist v Substantive Conception of the Rule of Law
Formalist conception
• Laws adhere to morally neutral procedural requirements, guiding the
behavior of subjects by ‘providing the framework for social cooperation’
(J. Rawls, A Theory of Justice, 235, 1971), providing citizens with certainty
as to:
o Their treatment by the State and others
o Authority for their actions and position within society
o The consequences of such actions (legal or illegal?)
• Law prospective (not retrospective) and clear
• Adjudicated on by independent judiciary with access to courts for all, and
implemented consistently in a predictable manner
Hayek, The Road to Serfdom (London, 1944)
• P 54: ‘government in all its actions is bound by rules fixed and announced
beforehand–rules which make it possible to foresee […] how the authority
will use its coercive powers in given circumstances, and to plan one’s
individual affairs on the basis of this knowledge’
Joseph Raz
• RoL deprived of useful function in its own right if we impute moral
concepts into it, such as the importance of human rights, democratic
values, non-discrimination – these should not be included as part of the
Rule of Law, as this should be morally neutral
o P 211, ‘The Rule of Law and its Virtue’, 1977: ‘the rule of law is just
one of the virtues which a legal system may possess […] not to be
confused with democracy, justice, equality […], human rights’.
© Liam Porritt 2020 2
Formalism applied in UK
Legal justification for state action
• Those exercising power should have some legal justification for their
actions within the terms provided for by Parliament ~ citizens have a
legal remedy when government acts unlawfully
o Entick v Carrington [1765]
§ Home secretary deployed ‘general warrant’ allowing civil
servants to raid premises of radicals producing pamphlets
against government (including Entick)
§ John Wilkes, a radical, prevented from taking seat in HoC
§ Entick (Wilkes supporter) had not been accused or
convicted of a crime, nor brought before any court
§ There was no legislation or common law precedent
allowing Home Secretary to grant warrant
§ Therefore, against Diceyan rule of law, as no legal
justification for actions
o Kelly v Faulkner – Northern Ireland CoA ~ soldiers dealing with
emergency not exempt from normal legal requirements for
execution of valid arrest
o M v Home Office – where Home Secretary acts illegally, the courts
must rectify this, and the HS must follow court order
• Legal justification is to be created by the parliament, exclusively
(Parliamentary sovereignty) – Malone v Metropolitan Police
Commissioner: Sir Megarry: ‘the creation of an altogether new right […;]
only Parliament can create such a right’.
Where possible legal justification, court have been unwilling to intervene
• The formalistic approach historically taken, as opposed to a more
substantive wiliness to protect fundamental rights, has led to judicial
deference where there may be interpreted to be a valid legal justification
for executive action.
• Paradoxically, under this approach, as signaled by Donald Hermann, the
exercise of arbitrary power may be in accordance with the rule of law, so
long as such discretion is provided for by legislation.
• This is all the more problematic in the UK, given the partial fusion
between the executive and the legislative arms of the State. Parliament is
often controlled by a majority of the party forming the executive, and with
the imposition of party discipline through whipping, this weakens the
separation of law-making and executive functions.
© Liam Porritt 2020 3
Liversidge v Anderson [1942] – judicial deference to broad discretionary power,
especially in times of war
• Home Secretary – imprison any person if he had ‘reasonable cause to
believe’ person had hostile intentions
• HoL – unless evidence HS acted in bad faith, can imprison anyone, without
objective requirement
o Do not require disclosure of information that it is not in the public
interest to disclose openly (national security)
• Lord Atkin dissented – must be proof of facts to merit being ‘reasonable’
belief, accusing the judiciary of being ‘more executive minded than the
executive’ – permitting arbitrary power and its use even in infringement
of fundamental rights
o This is closer to current judicial orthodoxy
• Hermann: states could be ‘rule of law states’, even though thoroughly
undemocratic and objectionable, as under the Nazi regime that
introduced the Nuremberg race laws.
IRC v Rossminster [1980]
• Broad warrants granted under statute to search and seize all documents
‘which [an officer] has reasonable cause to believe may be required as
evidence for the purposes of proceedings in respect of [an offence]’
(Taxes Management Act 1970, s 20C)
• Lord Denning MR (CoA): ‘Once great power is granted, there is a danger of
it being abused. Rather than risk such abuse, it is […] the duty of the
courts so to construe the statute as to see that it encroaches as little
as possible upon the liberties of the people of England’ ~ substantive
conception of RoL, with courts having power to interpret (or perhaps
amend) law so as to protect fundamental rights
• Denning thus sought to limit the powers of IRC, by necessitating a more
narrow scope of suspicion (not merely ‘some tax fraud’), in adherence to
the court’s ‘traditional role to protect the liberty of he individual’ ~ role
of courts not merely to implement statute following procedure, but
to interpret in accordance with protection of rights (as would later be
required by Human Rights Act 1998).
• Lord Wilberforce (HoL): ‘it is no part of [the duty of the courts…] to
restrict or impede the working of legislation, even of unpopular
legislation; to do so would be to weaken rather than to advance the
democratic process’ ~ formalistic / literal approach that the court’s duty
is to uphold parliamentary supremacy and to ensure legislation is
procedurally implemented within parliamentary authority, but not to
question the nature of such legislation
• Separation of powers must be maintained: the role of parliament is to
create legislation and the role of the courts to implement this
© Liam Porritt 2020 4
Substantive conception
Lord Bingham, The Rule of Law
Develops Dicey in a more substantive direction:
1. The law should be accessible, clear and predictable – formalistic
2. Legal issues should ordinarily be resolved through legal processes and
not through exercise of (administrative) discretion – formalistic
3. The law should apply equally to all – formalistic
4. The law should afford adequate protection for human rights –
substantive
5. There should be access to justice in the courts without inordinate delay or
expense – formalistic
6. Public officials, including ministers, should exercise the powers they have
been granted in good faith (substantive) and within the limits of those
powers (formalistic).
7. Legal and adjudicative processes should be fair. – substantive
8. The state should comply with its obligations under international law. –
formalistic
Control over discretionary power – an increasingly substantive approach
• See Lord Denning in IRC v Rossminster – role of courts to control level of
discretionary power afforded bodies by legislation, which he (as did the
HoL, who overturned his decision) felt was here excessive
Need for certain qualitative elements in addition to procedural protections –
Ronald Dworkin and Lord Bingham ~ rule of law must accommodate respect
for fundamental human rights and freedoms
1. Review of the exercise of prerogative powers, not merely their existence
(GCHQ)
2. Review of the executive’s use of powers granted by Statute, not merely
procedurally and through considering whether it is ultra vires, but
substantively through the development of common-law JR –
unreasonableness and legitimate expectation
3. Review of the executive’s powers granted by statute, as to whether they
substantively infringe on ECHR via the s 3 and s 4 mechanisms under
HRA 1998
4. Judicial activism in the development of the common law to protect ‘the
moral welfare of the State (Shaw v DPP).
5. The possibility of opposing Parliamentary Sovereignty, were Parliament
to enact ‘unconstitutional’ statute (Evans; Jackson).

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