Legitimacy, Separation of Powers and the Rule of Law

    Cards (138)

    • Legitimacy
      The rules that determine whether a particular law has been legally enacted require justification. Individuals need to know why they should obey the law of the land, even if at times it may be inconvenient and on occasion disadvantageous to do so. Political power must be derived from a valid source of authority in terms of shared beliefs on the part of society as a whole to command the respect of citizens. In addition, the rules of power must ensure that the people who wield power have the appropriate qualities to do so and that they govern in the general interest. There need to be constraints on the rulers to ensure that they do not abuse their power. To protect society, the rulers should not have untrammelled powers which they can exercise arbitrarily; their conduct should be subject to adjudication by the courts to ensure that they act lawfully
    • Events in South Africa during the apartheid era show that it is not enough for correct procedures to be followed in order for laws to be legitimate. The racially discriminatory laws that deprived black South Africans of voting rights, denied them the right to own property in most of the country and enforced rigid segregation were all validly enacted under the South African constitution, which could be traced back to an Act of the Westminster Parliament, the South Africa Act 1909. However, the apartheid system blatantly lacked legitimacy as it resulted in the gross oppression of the black majority by a white minority government
    • The rule of law and separation of powers are two key constitutional principles that buttress the legitimacy of the UK's constitution and prevent the arbitrary exercise of power. They help to ensure the legitimacy of the laws to which British citizens and residents are subject
    • Rule of law
      A long history going back at least to Magna Carta in 1215, which enshrined the principle that not even the King was above the law. A further noteworthy historical development was the creation of the writ of habeas corpus, an order by the court that a prisoner be brought before it so that it can decide whether their detention is lawful and consequently whether they should be released. The Habeas Corpus Acts 1640 and 1679 codified the procedure to counter the King's practice of detaining prisoners and simply asserting his command was sufficient justification for their detention
    • Dicey's 'traditional' definition of the rule of law
      • 1. No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of the law established in the ordinary legal manner before the ordinary courts of the land. It means the absolute supremacy of regular law as opposed to the influence of arbitrary power
      • 2. No man is above the law, every man and woman, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals
      • 3. The general principles of the constitution (for example, the right to personal liberty, or the right of public meeting) are with us as a result of judicial decisions in particular cases brought before the courts
    • Contemporary interpretation of Dicey's rule of law
      • 1. Legal certainty, personal liberty, due process of law
      • 2. Equality before the law, state officials have no exemption from legal control or accountability, members of the executive should not legislate or adjudicate in court cases
      • 3. Courts as protectors of individual liberty, developing constitutional principles through judicial decisions
    • Importance of the rule of law
      • Prevents the Government from exercising arbitrary power, holds the Government accountable for its actions, ensures the law is set out clearly and does not operate retrospectively, ensures equality before the law and equal access to the law, provides citizens with legal redress, maintains the independence of the judiciary and the separation of powers
    • Lord Bingham's modern definition of 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 by the courts. This includes: the law must be accessible, intelligible, clear and predictable; questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion; the laws of the land should apply equally to all; the law must afford adequate protection of human rights; means must be provided for resolving civil disputes; ministers and public officers must exercise their powers reasonably, in good faith, and without exceeding their limits; the adjudicative procedures provided by the state should be fair; the state must comply with its obligations in international law
    • Section 1 of the Constitutional Reform Act 2005 acknowledges the importance of 'the constitutional principle of the rule of law' although does not seek to define it
    • In R (Jackson) v Attorney General [2005] UKHL 56, Lord Hope spoke of the rule of law enforced by the courts as 'the ultimate controlling factor on which our constitution is based'
    • The Belmarsh case (A and others v Secretary of State for the Home Department [2005] 2 AC 68)

      Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law
    • R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46
      A decision to punish an offender by ordering them to serve a period of imprisonment may only be made by a court of law, which is a principal feature of the rule of law
    • R (UNISON) v Lord Chancellor [2017] UKSC 51
      The rule of law requires that individuals have unimpeded access to the courts
    • The Human Rights Act 1998 gave the courts the power to decide upon the compatibility of s 29 with Article 6(1) of the ECHR. Accordingly, the House of Lords issued a declaration of incompatibility regarding s 29. Parliament subsequently removed the power to set the tariff from the Home Secretary.
    • This case illustrates the significance of the rule of law and how the Human Rights Act enables the courts to uphold the principle.
    • The Supreme Court's decision in R (UNISON) v Lord Chancellor [2017] UKSC 51 shows the continuing significance of the rule of law in its jurisprudence.
    • The Lord Chancellor had adopted the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013, SI 2013/ 1893 ('the Fees Order')

      Relating to proceedings in employment tribunals and the Employment Appeal Tribunal
    • Prior to the Fees Order, claimants were able to bring proceedings in an employment tribunal and appeal to the Employment Appeal Tribunal without paying any fees.
    • The trade union, UNISON, challenged the Fees Order by way of judicial review on various grounds, including their effect on access to justice.
    • The Supreme Court held that the Fees Order was unlawful.
    • The constitutional right of access to the courts is inherent in the rule of law

      It is needed to ensure that the courts are able to apply and enforce the laws created by Parliament and also the common law created by the courts themselves
    • For the fees to be lawful, they had to be set at a level that everyone can afford, taking into account the availability of full or partial remission.
    • Even if the fees were affordable, they might still prevent access to justice if they rendered it futile or irrational to bring a claim.
    • The Fees Order was unlawful as it effectively prevented access to justice.
    • In M v Home Office [1993] UKHL 5, the Home Secretary cancelled arrangements for M's return to the UK, believing he had acted legally in ordering M's deportation and that the judge did not have the legal power to make an interim order against a minister of the Crown.
    • The House of Lords held that injunctions were available against officers of the Crown and that the Home Secretary was in contempt of court in ignoring them, rejecting his argument that contempt and injunctions did not apply to the Crown.
    • Lord Templeman: 'The argument that there is no power to enforce the law by injunction or contempt proceedings against a minister in his official capacity would 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'
    • Lord Woolf: 'The object of the exercise is not so much to punish an individual as to vindicate the rule of law by a finding of contempt'
    • The notion of equality before the law and the rule of law were clearly central to the judgment of the House of Lords.
    • The UK constitution does not grant special privileges or immunities to officers of the state.
    • There is a potential tension between parliamentary sovereignty and the rule of law.
    • Parliament can pass any Act it chooses, no matter how arbitrary or oppressive.
    • The courts have generally acknowledged parliamentary sovereignty by following the 'principle of legality'.
    • Principle of legality
      Fundamental rights cannot be overridden by general or ambiguous words. This assumption can be displaced only by 'clear and specific provision to the contrary'.
    • In R (Corner House Research and Another) v Director of Serious Fraud Office [2008] UKHL 60, the House of Lords accepted that the Director's decision to halt an investigation had been taken with extreme reluctance, and that he had acted lawfully in deciding that the public interest in pursuing an important investigation into alleged bribery was outweighed by the public interest in protecting the lives of British citizens.
    • The rule of law is a doctrine that forms a key element of part of the UK constitution.
    • There is near universal acceptance that laws should be enacted properly and that they should be clear. Laws should not be applied arbitrarily, no one is above the law and that no one may be punished other than in accordance with the law.
    • Some definitions of the rule of law also have regard to the content of the law, including the extent to which the law upholds human rights.
    • The separation of powers is closely linked to the rule of law. An independent judiciary is an essential element of the rule of law and the separation of powers helps to secure judicial independence.
    • There is no formal separation of powers within the UK, but this doctrine is acknowledged as one of the principles that underpin the constitution of the UK.
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