UPDATED NOTES - Separation of Powers and Rule of Law

The executive and the legislature:

• Under the UK system, there is no clear separation between the personnel in the executive and legislative branches of government. The prime minister and most of the ministers constitute the executive. They are also all members of parliament.  The Prime Minister, by convention, must be a member of the House of Commons – not even the House of Lords.

• Compare this, for example, to the situation in the US where there is a clear separation of personnel between the legislature and the executive. The president is not a member of the legislature in the US. So you can have a situation where the president is from one party, and the legislature is also from another party. This can never happen in the UK. Here, once you win a majority of seats in parliament you automatically form a government:

• The separation of powers in the UK constitution is really not about personnel – its about functions and roles. The concern is to make sure that despite the parliamentary majority, legislation that is passed is sufficiently examined and scrutinized irrespective of the size of the Prime Ministers majority in Parliament.

Subsidiary Legislation:

• In some circumstances, parliament can delegate its lawmaking powers to the executive. It does this through an Act of Parliament which permits a particular actor in the executive – usually a government minister – to create laws.

• Where a minister is given the power to create subsidiary legislation by an Act of parliament, the subsidiary legislation that minister creates must not exceed the power given him by the Act.

• If he exceeds that power, he can been accused as acting ultra vires, and the court can declare the subsidiary legislation to be invalid.

Executive and the Judiciary

• Judicial independence is a key part of any and every democratic government. Judges must be seen to be impartial.
• Hence the appointment process of judges in the UK has recently been modified – the executive no longer plays a role in the appointment of judges. Appointments are made strictly on merit, by an independent appointments commission.
• The role of the judiciary in the UK is to interpret the law as parliament intended it to be interpreted and to ensure that the executive acts with the scope of the powers that the laws have been given. If Judges are not separated from the executive arm of government, they cannot be seen to be doing this in a unbiased way.
• Even THE APPEARANCE of impropriety is enough to have a judicial decision overturned. There does not have to be an actual impropriety – the mere fact that there was the potential for conflict of interest or bias is sufficient to overturn a judicial decision.

• Two Cases Demonstrate this vividly:
• R. v Bow Street Metropolitan Stipendiary Magistrate Ex p. Pinochet Ugarte (No.2) was an English legal case which involved the unprecedented setting aside of a House of Lords judgment based upon the possibility of bias. Lord Hoffmann's failure to declare links to Amnesty International meant that a previous House of Lords judgment on the immunity of former Chilean dictator General Augusto Pinochet had to be set aside.
• In Dimes v Grand Junction Canal Proprietors (1852) 3 HL Cas 759, the Lord Chancellor held  shares in a canal company which was involved in litigation. The House of Lords ruled that the Lord Chancellor should have disqualified himself from sitting. Even though it was accepted that he was not influenced by the interest, the court ruled that it was of the utmost importance that ‘the maxim that no man is to be judge in his own cause should be held sacred’.

• There are a number of matters concerning the executive where the judges will just not interfere.
• One very obvious example of this is in the area of national security. When judges believe that national security matters are at stake, they have tended to traditionally defer to the executive’s discretion. For example – in the case of Liversidge v Andersen (1942) AC 206 the court had to decide if the legality of a law which granted a government minister the power to confine people if he believed if he had "reasonable cause" to believe that they had "hostile associations". The question to be decided was whether or not they had the authority to investigate the reasonableness of the decision of the executive. The court held that they did not, and parliament had intended to give the relevant minister an almost personal discretion to decide who to confine under the Act.

• You can see another example of this in the case of the Council of Civil Service Unions v Minister for Civil Service  1985 AC 374 – this is also called the GCHQ case because it concerned the signals division of the British spy services – aka the Government Communication Headquarters. The UK government had decided to ban the people that worked there from joining trade unions. They took the government to court and lost. The courts basically said that as this was a national security issue, they would not interfere in the decision of the government.

Lets Look at the relationship between the Legislature and the Judiciary

• Parliament in the UK is supreme.
• Judges are required to interpret laws in a manner which gives effect to the intentions of parliament.  
• Constitutionally, judges have no power to question the validity of legislation: Pickin v British Railways Board [1974] AC 765 discussed in Chapter 7. However, within the constraints imposed by the ‘rules’ there remains a certain amount of leeway for the judges to give new meaning to statutory language, and this raises the question of whether the judges ‘make law’.
• Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg [1975] HL Lord Reid: 'We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used.'
• Unlike the US, judges have no power to question the validity of an act of parliament. The best judges can do when they find a situation they do not like in a statute is to re-interpret the statute to suit what they consider to be the best outcomes. One of the best judges at doing this was Lord Denning, MR the Master of the Rolls. He once stated that where there are gaps in legislation, judges have the power to fill in those gaps. But he was heavily criticized for this opinion.

Magor & St. melons RDC v Newport Corporation (1952 AC 189) –

Lord Denning, MR‘We do not sit here to pull the language of Parliament to pieces and make nonsense of it. We sit here to find out the intention of Parliament and carry it out and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis’

 Lord Simonds: - It is generally held that the courts cannot fill in the gaps. 'If a gap is disclosed the remedy lies in an amending Act' as for a judge to do otherwise is a 'naked usurpation of the legislative function under the thin disguise of interpretation'.(per Lord Simonds, Magor & St Mellons RDC v Newport Corporation (1952))

·         But: See what happened in Shaw v DPP (1962) Conviction for a COMMON LAW OFFENCE of ‘conspiracy to corrupt public morals’ for publishing a directory of prostitutes services.

·         Also See R v R (1992) Plaintiff was convicted of Marital Rape – even though marital rape was at the time not known to be crime on the statute books.

Question: In these instances, are judges not clearly creating laws?

·         In terms of the relationship between the judiciary and the legislature, the legislature clearly has the upper hand. For example, occasionally Parliament has been known, when faced with a court decision that they do not like, to pass laws that specifically overturn that court decision. Remember, parliament in the UK is SUPREME

·         Burmah Oil Co Ltd v Lord Advocate [1965] This case concerned the destruction of oil fields in Burma by British forces during the Second World War. The sabotage was committed in order to prevent the plantations from falling into the hands of the advancing Japanese army.The House of Lords held, by majority, that although the damage was lawful, it was the equivalent of requisitioning the property. Any act of requisition was done for the good of the public, at the expense of the individual proprietor, and for that reason, the proprietor should be compensated from public funds. The result of the case was that the pursuers, Burmah Oil Company and others, should receive compensation for their destroyed plantations. In the end, the result was frustrated by the passing of a retrospective Act of Parliament, the War Damage Act 1965, which retroactively exempts the Crown from liability in respect of damage to, or destruction of, property caused by acts lawfully done by the Crown during, or in contemplation of the outbreak of, a war in which it is engaged.

• Also – as I mentioned last week – the courts will not interfere in matters concerning the rights, immunities and privileges of parliament. So for example, parliamentarians have almost unrestricted rights of free speech – you cannot sue a parliamentarian for defamation in respect of the things he says on the floor of parliament.

• Conversely, you will find that parliament also attempts a similar policy of non-interference in the affairs of the judiciary. For example, there is a well established convention that members of parliament will not criticize judicial decisions.

• Also, when a matter is before a court, members of parliament will not debate it of the floor of parliament.

The Rule of Law

What is the Rule of Law?

Definition:

• The essence of the rule is the sovereignty and superiority of the law over man. The rule of law insists that every person, irrespective of rank or status in society – should be subject to the law. In a state where the rule of law prevails, the law is both prescriptive (i.e it tells the citizen how he/she ought to behave) and its also protective (tells government how to behave towards its citizens).

• That government must act through law, law must be supreme. Government can only use the legal powers that have been conferred upon it.  Law should be obeyed by all citizens and that all public bodies and officials, irrespective of rank and power, are accountable to law.

• The term is often used in a value laden manner – i.e. it is often associated with a form a democratic liberalism.  However it should not be confused with democracy, justice, equality. A non-democratic legal system, based on the denial of human rights, on extensive poverty or racial segregation, sexual inequalities, and religious persecution could still be described as conforming to some of the tenets of the rule of law. Jennings, for example, reminds us that:

The powers of Louis XIV Napoleon I, or Hitler are all derived from the law. Even though that law be only ‘the leader can do what he pleases’

For Jennings, the rule of law to truly exist, it must come with restrains on the exercise of power. For example, there should, ideally be some equality before the law, and separation of powers.

• We should be careful when we assume that Western Neoliberalism is automatically associated with the rule of law. There have been several instances where ne-liberal governments themselves do not necessarily follow the tenets of the rule of law.

E.g

·         Guantanamo Bay

·         Abu Graib

·         Treatment of minorities and native Americans in the united states

·         Treatment of IRA in UK

·           Marxists have a somewhat cynical view of the rule of law. They perceive it as a façade – a ruse through which the more powerful and privileged classes within society is able to formally subjugate the lower classes. Law is a reflection of economic power within society, which is used to exploit the powerless. Do you agree.

·         There is certainly a cultural element in how the rule of law is to be understood. For some people, rights are all about civil rights – speech, movement association. For others, thats just part of the story – economic rights are as important civil rights – education, food, shelter etc. So how you understand the concept really varies according to the philosophical

A system with the rule of law as we understand it today should have certain things

-          All laws should be prospective, open and clear

-          All laws should be relatively stable

-          The making of particular laws should be guided by open stable clear general rules

-          The independence of the jury must be guaranteed

-          The principles of natural justice must be observed

-          The courts should be easily accessible, and

-          The discretion of the crime prevention bodies should not be allowed to subvert the law.

Is the rule of law a good thing?

Philosophical Approaches to the Rule of Law

• Aristotle –  was a member of the natural law school. They argued that the powers of man are not absolute. They are subject to the wishes of a higher ‘natural’ power. Therefore law seen as deriving from a higher a power, with the stated goal of reducing the power of individuals/kings. Aristotle hence argues that the ‘the rule of law is preferred to that of any individual’
• Cicero, when falsely accused and asked to escape, refused to do so.  He argued that escaping would be a violation of the rule of law: Can you deny that this act of escaping which you are contemplating you intend, so far as have the power, to destroy us, the laws and the whole state as well? Do you imagine that the city can continue to exist and not be turned upside down, if the legal judgments which are pronounced in it have no force but are nullified and destroyed by private persons.
• Christian natural thought began in the middle ages – can be seen in the writings of Thomas Aquinas. This was similar to Greek natural law thought, with the exception that it was believed that the higher power from which laws were derived was a Christian God. Hence the belief that arose that if the demands of the state conflict with the laws of God, the laws of God must prevail. (Hence Thomas More  is executed when he refuses to recognize Henry VIII as the Head of the Catholic Church.
• From this also arise the idea of a social contract between the state and individual (as identified by Locke) and also the concept of the rights of man, as argued by Thomas Paine. i.e. that there are certain inalienable human rights and values that no state can deny its citizens. The idea is that these rights are natural – some believe they come from God.
• It is also at this point that the first legal/common law based challenges began to arise about the absolute power of the monarchy. The arguments are made by a number of individual personalities and scholars Locke, Paine etc. One of the strongest proponents of the monarchical restraints was Lord Coke, CJ, who argued that the power of the King from the Law, and therefore the King himself was subject to the law. The then King was of a different view – he saw the law as being subservient to the king.
• In Asian societies, resort to the rule of law is evidence of a societal breakdown. People were expected to live by a moral code – thus when was forced to refer to the law, it was evidence of the breakdown of that moral code.
• Read also: Some Philosphical understandings of the rule of law especially by RAZ, who argues that the concept should not be value laden – it should be determined by whether or not there are rules which are enforceable. Also read Ron Fuller, who argues the exact opposite – that law has a certain morality implied in it. Therefore there cannot be rule of law if the laws in question are fundamentally unjust.

In his introduction to the Study of the Law & Constitution, Dicey offers a three part definition of the ROL.

1. Dicey –

No punishment may be inflicted other than for a breach of the law: No man is punishable or can be lawfully made to suffer except for a distinct breach of rules established in an ordinary legal manner before the ordinary courts of the land

The purpose here is to deny governments the ability to make secret or arbitrary laws. If penal liability can be retrospectively imposed, the individual is placed in the position where his conduct was lawful at the time of his action, but subsequently, he is held responsible as if his conduct was unlawful.

 R v R – Facts

The defendant married his wife in 1984. As a result of matrimonial difficulties the wife left the matrimonial home in 1989 and returned to live with her parents, informing the defendant of her intention to petition for divorce. The defendant also communicated to the wife his intention to "see about a divorce." While the wife was staying at her parents' house, the defendant forced his way in and attempted to have sexual intercourse with her, in the course of which attempt he assaulted her. He was charged on indictment with rape and assault occasioning actual bodily harm. The judge rejected his submission that by virtue of section 1(1) of the Sexual Offences (Amendment) Act 1976 the offence of rape was one which was not known to the law where the defendant was the husband of the alleged victim. He thereupon pleaded guilty to attempted rape and assault occasioning actual bodily harm and was convicted. On the defendant's appeal against his conviction of attempted rape, the Court of Appeal (Criminal Division) dismissed the appeal. Held, dismissing the appeal, that there was no longer a rule of law that a wife was deemed to have consented irrevocably to sexual intercourse with her husband; and that, therefore, a husband could be convicted of the rape or attempted rape of his wife where she had withdrawn her consent to sexual intercourse; that section 1(1) of the Sexual Offences (Amendment) Act 1976 did not give statutory recognition to and perpetuate the former rule; and that, accordingly, the defendant's conviction would be upheld (post, pp. 616D, 617F-618B, 621C, 623B, D-F)./

R v R [1991] 3 WLR 767. R was prosecuted for raping his estranged wife. Until that decision

husbands had, with limited exceptions, immunity from the law on the basis that on marriage

husband and wife became ‘as one flesh’ and also that on marriage a woman implied

her consent to sexual intercourse throughout the marriage. The House of Lords removed

that immunity. R applied under the European Convention on Human Rights alleging a violation

of Article 7, which protects against retrospectivity, on the grounds that his act of rape

was not made illegal until after he had committed it. The European Court of Human Rights

rejected his argument, endorsing the House of Lords’ decision. Both the House of Lords and

European Court took the view that the immunity was overdue for removal and that equality

between the sexes demanded that married women be protected against rape by their

husbands.

Write a brief passage evaluating R v R from the perspective of the rule of law. Was the case correctly decided? What arguments would you make for and against the decision?

DPP v Shaw

Shaw had published a booklet called the Ladies' Directory, which advertised the names and addresses of prostitutes. The booklet:

... left no doubt that the advertisers could be got in touch with at the telephone numbers given and were offering their services for sexual intercourse and, in some cases, for the practice of sexual perversions.²³

Shaw was successfully prosecuted under a number of provisions of the Sexual Offences Act 1956 and the Obscene Publications Act 1959. He was also convicted on a charge of "conspiracy to corrupt public morals" on the basis that, when he published the booklet, Shaw was conspiring with the prostitutes "... to debauch and corrupt the morals of youth and other subjects of the Queen".²⁴

Shaw complained to the House of Lords, inter alia, that the crime of conspiracy to corrupt public morals was hitherto unknown or innominate. All five law lords upheld the conviction. Only Lord Reid maintained that the crime with which Shaw was charged was an existing common law misdemeanour. The other four law lords went further. They held that courts have a residual power to superintend offences which are prejudicial to the public welfare.

Burmah Oil v Lord Advocate (1962)

Irrespective of rank and status, all are equal before the law

Really all kinds of people get special treatment under the law. Such as? The Crown enjoys many special immunities under the law.

·         Parliamentarians,

·         the disabled,

·         diplomats,

·         the police

Rights and freedoms are best protected by the common law rather than by a formal bill of rights

Dicey argues that the best protection of rights is the common law. In other words, people should be free to do what they wish unless they are prohibited from doing so by the courts. This, for Dicey, is the best way to protect rights. This formular for protecting rights would not however work in a modern society.

2. Practical Manifestations of the Rule of Law

Entick v Carrington (1765)

Entick brought an action for trespass after his house had been broken into by the King’s messengers, and certain papers had been seized as evidence of seditious writings. The defendant argued that their actions were justified by a warrant issued by the Secretary of State. The case therefore turned on the legality of the warrant. Held; the power claimed the Sec of State to issue the warrant was not supported by any extant of the lawbooks. Lord Camden CJ held ‘If it is law, it will be found in our books. If it is not to be found there, it is not law’. The warrant was illegal and void.

M v Home Office (1994)

M was a citizen of Zaire. He arrived in the UK seeking political asylum. He was interviewed and subsequently informed that his claim had been rejected by the HS. His position was later reconsidered, but it was still decided that he did not qualify for asylum. The decision to refuse asylum was taken on the basis that the Home Sec did not believe M’s account. Attempts were made to remove him from the UK before the HCt. A HCt judge ordered that his removal be delayed. Ms lawyers brought an action against the crown for contempt. Held that an action could lie against the minister – but not the crown for the disobedience of the order of the court.

IRC v Rossminster Ltd.

Inland revenue officers suspected that the company had committed tax fraud. The obtained warrants to search the premises. The warrants did not specify the particular offences being investigated. A search was conducted, and he officers seized anything which they believed to evidence relating to tax fraud. The company sought judicial review. Held: The courts have a duty to supervise the legality of any purported exercise of powers to enter a persons premises. However, since the warrants here followed the exact words of the statute, the Company could not challenge it.

Malone v Metropolitan Police Commissioner (1979)

Intercepting wireless communications between criminals – an area which is crying out for legislation.

M challenged the legality of tapping his phone. The courts were however reluctant to recognize a right of privacy towards telephone conversations. The courts held that even though there was  no authority on that point, that did not mean they should recognize that right. ‘it is no function of the courts to legislate in a new field. The extension of existing laws and principles is one thing, the creation of altogether new right is another.

A v Secretary of State for the Home Department (Anti-terrorism, Crime and Security Act, 2001)

Indefinite detention allowed – violation of the right to liberty

Overturned by the House of Lords as a violation of the right to liberty