UK & Rule of Law
To start off with the executive commitment, it is for the Lord Chancellor to protect the undefined rule of law under the Constitutional Reform Act, 2005. In reality, however, they are often found guilty of unfair use of discretion by imposing court fees on underprivileged families. Moving on to Parliament, it enacts rights-centric laws, incorporates international treaties but does not shy away from reversing judicial decisions and flouting international commitments. Viz judiciary, it often protects rights but also accepts its limit to parliamentary supremacy. This not only demonstrates Britain’s commitment to rule of law but also speaks about hurdles in enforcement arising either from parliamentary sovereignty or improper use of executive discretion.
Certainly, adequate protection of fundamental rights is a value enshrined in rule of law. Prior to Human Rights Act, 1998, this meant protection of common-law rights such as freedom from executive trespass as enunciated in Entick v Carrington. Subsequently, it came down to mean protection of Convention rights. These are mostly first-generation, or civil and political, rights with no provision for second-generation rights like right to housing and group rights like right to self-determination. It rather protects rights like freedom from torture (Art. 9), freedom of expression (Art. 10), freedom of assembly and association (Art. 11), right to marriage (Art. 12) and freedom from discrimination (Art. 14).
Fortunately, British citizens can have their national laws interpreted in the scope of these rights as envisaged by section 3 of HRA. An example of this is Ghaidan v Mendoza. In this case, the petitioner, who was a homosexual partner, was successful in getting the Court to read the words ‘living spouse’ in Rent Act, 1977, as meaning heterosexual and homosexual couples in the light of Articles 8 and 14. However, where incompatible interpretation is difficult, courts may issue a declaration of incompatibility with no effect on the validity of primary legislation, except secondary laws in which case the ministerial order is set aside. Importantly, a minister can make changes to primary law by virtue of section 10 of HRA. This is an expedient fix but is a fire shot and an affront to parliamentary supremacy. However, as its authorization comes from the latter itself, it is no more than a self-imposed challenge. The upshot is that the Parliament trusts ministers for quick solutions and corners judiciary to advisory status. This looks like a strong partnership between Parliament and executive with serious implications for separation of powers.
Moving on, reasonable and fair use of discretion is another value embedded in rule of law. Ministerial decisions have always been subject to judicial review through traditional grounds like illegality, Wednesbury unreasonableness and procedural impropriety. Therefore, if a statutory authority acts outside the ambit of a statute, its actions are struck down. For example, when Fulham Corporation introduced a laundry service with a charge, it was found to be ultra vires the Act which had only permitted the setting up of public laundries. Likewise, if the authority was deciding the moral welfare of children, it was bound to have acted reasonably as in Wednesbury Corporation. Similarly, if a clear promise was made by a public authority to individuals, it was upheld: ex parte Coughlan. Moreover, a change in procedure has to be notified as held in ex p Khan.
Thirdly, no punishment without a clear violation of law is set in stone value. Mere suspicion is not enough to detain a person. Where such detention is authorized by statute, access to courts must be provided. Article 5 of HRA has given this greater emphasis. And ever since Chahal v UK, there is now Special Immigration Appointments Commission to hear appeals of such suspects.
Fourthly, laws should be accessible. Through CRA, it has become crystal clear that rule of law is an important British constitutional value. Its enforcement is in the hands of the Lord Chancellor. Whereas cases such as ex parte Witham and UNISON show that the Chancellor often uses discretion unfairly and introduces measures that create hurdle in accessing courts; for example, introducing court fees for people of low income. For such ultra vires actions, the decisions can be struck down but they cannot be removed from office as that is the prerogative of the Prime Minister.
Despite general adherence to the rule of law, the judicial protection of it is subject to parliamentary approval. There have been instances where court decisions were overturned. For instance, the judicial award of compensation was overturned in Burmah Oil Company case. Likewise, the decision in R v Davis was overturned though Witness Anonymity Act, 2008. These powers are extraordinary and are inimical to rule of law. But their rare use is some comfort. At other times, parliament includes ouster clauses to Acts. Their aim is to expedite executive action without undue judicial oversight. In such situations, courts employ their interpretive skill and read determinations immune from review as meaning only lawful determination; thus, leaving unlawful determinations subject to review. This logic was applied in Anisminic to avail it review of decision of Foreign Compensation Commission.
In conclusion, rule of law is a contested concept. Its starting clarity comes from reading Lord Bingham. But its fuller understanding comes from its application by the state organs. In the UK, there is a general commitment to it. Although parliamentary supremacy makes it difficult for judiciary to always protect citizens’ rights.
The author teaches jurisprudence and legal theory at Pakistan College of Law, Lahore. She can be contacted at: firstname.lastname@example.org