Key Ideas in Law: The Rule of Law and the Separation of Powers

Jack Beatson

• Publisher: Hart Publishing
• Year: 2021
• ISBN:
  9781509938780
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto pubblico

Prompted by the events following the 2016 referendum on EU membership and written during the COVID-19 pandemic by one of the leading public lawyers of our day, this book considers two key constitutional principles, the rule of law and separation of powers, by examining the generality, certainty and predictability of law, relations between the different branches of the state, and the mechanisms of accountability within our democracy. Since the referendum and in the light of the restrictions imposed to deal with the pandemic, and the use of guidelines presented as rules to do so, attention has refocused on the relationship and respective powers and competences of the three branches of the state, the legislature, the executive, and the judiciary. They have also placed strains on our unwritten constitution that have been unknown in modern times. The role of the courts and of the rule of law, has been dramatically illustrated by recent litigation, most notably the decisions on whether legislation was needed to serve notice of the UK's intention to leave the EU and whether the prorogation of the Westminster Parliament in 2019 was a matter for the courts as opposed to a political question for government. Set against this backdrop, the book answers the following questions:
- How accessible is the law and how does it avoid arbitrariness?
- How is access to justice protected?
- How does our constitution reflect the separation of powers and the balance of responsibilities between law and politics?
- How does our democracy enable majorities and protect minorities?

1

Overview

Although the United Kingdom does not have a single document entitled ‘The Constitution’, it nevertheless possesses a Constitution, established over the course of our history by common law, statutes, conventions and practice. Since it has not been codified, it has developed pragmatically, and remains sufficiently flexible to be capable of further development

R (Miller) v The Prime Minister & Cherry v Advocate General for Scotland [2019] UKSC 41, at [39].

This book deals with the way the principles of the rule of law and separation of powers work in the British constitution. This chapter provides an introduction to the two principles and to the fuller discussion in later chapters. It also outlines our sources of law, constitutional framework and the constitutional renewal that has taken place since 1997.

The United Kingdom (‘UK’) is a state with three separate common law systems of law or jurisdictions. They are those of England and Wales (although there is now a debate about the creation of a separate Welsh jurisdiction), Scotland and Northern Ireland. They operate within complex institutional structures resulting from the asymmetric and evolving devolution of legislative and executive power to Northern Ireland since 1922 and to Scotland and Wales since 1998 following referendums. There are important differences between the three legal systems. But in relation to the rule of law and the separation of powers, because, as Loughlin 2013 at 20¹ observed, ‘the spirit informing the British constitution is exemplified in the English legal tradition’, and in order not to misrepresent Scottish or Northern Irish law, the focus of this book is on their operation in the law of England and Wales.

I. THE RULE OF LAW

The rule of law has a long history, according to some stretching back to Aristotle. The modern UK principle is rooted in the nineteenth century and AV Dicey’s 1885 Introduction to the Law of the Constitution (‘Dicey’), discussed in chapter three. As Dicey recognised, the breadth and open-textured nature of the principle carries a degree of uncertainty and vagueness. This is something not addressed by section 1 of the Constitutional Reform Act 2005 (‘CRA’), which refers to ‘the existing constitutional principle of the rule of law’ without any indication as to its content or source. Judges are therefore left to decide what it means in particular cases. They do so by having regard to the ideas of generality, certainty and the prospectivity and predictability of legal norms that have underpinned the principle. The importance of the principle has led for example to the rejection of the view expressed in Shaw v DPP [1962] AC 222, in the context of conspiracy to corrupt public morals, that courts have a residual power to declare acts to be criminal offences, see 42.

The rule of law is also at the heart of many international instruments, the first of which was the Universal Declaration of Human Rights in 1948. For the UK the most directly relevant is the European Convention on Human Rights 1950 (‘ECHR’). The Human Rights Act 1998 (‘HRA’) has given effect to the ECHR in the UK’s domestic law by a new, indirect form of incorporation which, although arguably incomplete, in practice makes Convention rights generally enforceable. The importance of the rule of law to the ECHR is shown by the many references to it in the jurisprudence of the European Court of Human Rights (the ‘Strasbourg Court’) which must be taken into account by UK courts, but which is persuasive rather than binding: HRA, section 2(1).

At the core of the rule of law principle is acceptance that the law binds everybody, including the government. The government must be able to point to a valid legal basis for its conduct in statute, prerogative powers enjoyed by the monarch or her ministers, or under the general common law. The law must also be both impartial and applied impartially, and all should have access to its protection. ‘Nobody is above the law and nobody is outside the law’: Steyn 2006, 246.

The position at common law today is that, particularly in relation to fundamental rights such as personal liberty, ‘every person within the jurisdiction enjoys the equal protection of our laws’: Khawaja v Home Secretary [1984] AC 74, at 111 per Lord Scarman. This, and the common law principle that like cases be treated alike (see Matadeen v Pointu [1999] 1 AC 98, 109), are now complemented and enhanced by the requirements of the ECHR, including the principle of non-discrimination.

The principle of equality, and the need for cogent reasons for departing from it, were major factors in the decision in Ghaidan v Godin-Mendoza [2004] UKHL 30 that legislation giving opposite-sex partners but not same-sex ones the right to succeed to a tenancy was incompatible with Convention rights. The principle of non-discrimination was also important in A v Home Secretary [2004] UKHL 56 (‘the Belmarsh case’) where the House of Lords held that legislation authorising the detention without trial of foreign citizens suspected of being terrorists, but not of British citizens so suspected, was also incompatible with Convention rights.

This equality and impartiality do not mean that all laws must apply equally to everyone. There may be different provision for different categories of people according to economic or social conditions or professional or other status. For example, there are financial thresholds for entitlement to welfare benefits and the different tax bands. Sections 24 and 24A of the Police and Criminal Evidence Act 1984 give police officers more extensive powers of arrest without a warrant than members of the public have. But officials also need to be subjected to restrictions which enable them to be accountable. What must be avoided are irrelevant or irrational distinctions, such as linking employability to the colour of a person’s hair or skin.

The virtue of the rule of law principle is that it enables individuals, associations and officials to conduct their lives in a lawful manner and to know that they will have a remedy against those who do not. The corollary is that it provides protection and a remedy against unlawfulness and against arbitrary and harsh conduct by government and others including prosecuting authorities.

It has recently been argued (for example by Endicott in Tomkins and Scott, 123, 128–29) that public authorities, including the government, have undefined open-ended inherent powers to carry out their own responsibilities for the public good and to do anything that serves the purposes for which they exist unless such power is taken away by law. Undoubtedly the government needs to be able to exercise executive power effectively and efficiently but the dominant and better view is that a public authority must be able to point to a valid legal basis for its conduct in statute, common law or, in the case of central government, prerogative power. In R v Somerset CC, ex p Fewings [1995] 1 All ER 513, 524, a successful challenge to a local authority’s ban on stag hunting on its land, Laws J stated that:

a public body has no heritage of legal rights which it enjoys for its own sake; at every turn, all of its dealings constitute the fulfilment of duties which it owes to others; indeed, it exists for no other purpose. … it has no rights of its own, no axe to grind beyond its public responsibility.

On appeal, Bingham LJ stated ([1995] 1 WLR 1037, 1042) that it ‘is not lawful for you to do anything save what the law expressly or impliedly authorises. … There are legal limits to every power you have’. This chimes with decisions such as BBC v Johns [1965] Ch 32 where the BBC unsuccessfully argued that it was entitled to the Crown’s immunity from general taxation because it was a body set up by royal charter. Diplock LJ stated at 79 that it was ‘350 years and a civil war too late for the Queen’s courts to broaden the prerogative. The limits within which the executive government may impose obligations or restraints on citizens are now well settled and incapable of extension’.

The defenders of the idea of public authorities having power to carry out their own responsibilities unless it has been taken away by law say that this treats them in the same way as private individuals and produces symmetry of principle. However, that ignores the imbalance of power between public authorities and almost all private citizens and companies. It also undermines the idea of residual liberties allowing citizens to do all that is not prohibited because recognising that the state and possibly other public authorities have such open-ended inherent powers, save where expressly taken away by law, could remove such liberties. Thirdly, it significantly discounts the uncertainty that would result from open-ended inherent powers and the practical difficulty that would be caused by leaving it to the citizen to find the law which removes the power to act in a particular case. For these reasons, even a purely formal concept of the rule of law requires that the executive should have legal authority for the action it takes in the public interest and that it should not act in breach of the law: Ewing and Gearty 394.

While what has been said is primarily directed at the conception applicable in domestic law, the underlying ideas and virtues of the rule of law principle also apply to the system of international law and the behaviour of states. But although, by and large, states comply with international law, there are obstacles to attaining the ideals of the rule of law in the international legal order: Crawford 2014, §460. One is the absence of a centralised legislative power and the consequent need for many decisions to be made by consensus if they are to be made at all. A second is that enforcement systems, such as that of the International Court of Justice, depend on the consent of states. A third is that political calculations may lead to a willingness to break international law. A recent example is the Internal Market Bill 2020 where the UK government proposed to give itself power unilaterally to rewrite and breach elements of the withdrawal agreement with the EU, a treaty binding the UK under international law and given effect in UK law by the EU (Withdrawal Agreement) Act 2020. The attempt was very widely criticised on rule of law grounds and, after the clauses were rejected by the House of Lords, they were dropped by the government.

II.THE SEPARATION OF POWERS

The idea that there should be a separation of the powers of the state can also be traced back to Aristotle but was developed by Locke and Montesquieu in the seventeenth and eighteenth centuries. Broadly described, it is the view that the legislative, executive and judicial powers and functions of the state should be carried out independently of each other so that there is a system of checks and balances between the three which restrains tyranny and the abuse of power. Those who make or who administer the law should not determine whether an individual has broken that law. That should be done by an independent and impartial judge.

The CRA sought to make a distinct constitutional separation between the judiciary and the legislature and executive by removing the final court of appeal from the House of Lords and removing the Lord Chancellor, a senior government minister, from the role of Head of the Judiciary: see 11. But, save for the independence of the judiciary and the power of the courts to supervise the legality of the acts of government and other public bodies by judicial review, the separation of powers has not been recognised as a constitutional principle. The functions of the legislature and the executive are closely related. Ministers are also members of Parliament and, save in the rare case of a ‘hung’ Parliament, a coalition or a minority government, or acute internal divisions within the majority party, the executive controls the House of Commons. And, since the Parliament Act 1911 the House of Lords has had no veto over legislation, only a delaying power shortened by the Parliament Act 1949 to one year or, in the case of money bills, one month, the executive generally controls the legislative process. Our institutional arrangements and the principle of Parliamentary sovereignty have therefore created what Lord Hailsham, 25–32, described as an ‘elective dictatorship’, albeit one democratically accountable to the electorate at general elections, and, in the last 50 years in referendums, such as those on membership of the European Community (now the EU) in 1975 and 2016, and on devolution.

We shall see in later chapters that the exercise by the courts of their supervisory jurisdiction by judicial review shows sensitivity to which questions are appropriate for a court and which should be left to the legislature and the executive. In this way they show an appreciation of the separation of powers. Some critics, however, notably supporters of the Judicial Power Project, consider that insufficient sensitivity has been shown in recent years, believing that there has been judicial overreach which has produced a rule of judges rather than a rule of law.

III.THE CONSTITUTIONAL FRAMEWORK

The foundational principle of the constitution is the sovereignty of the UK Parliament at Westminster. This sovereignty means that Parliament is competent to make or unmake any law on any topic and the courts are required to give effect to those laws. Under the classical model of the UK’s constitution there are thus no legal limits on what Parliament may do by primary legislation, including altering the period between general elections and amending or repealing legislation protecting individual rights, such as the HRA. Some consider such legal sovereignty to be incompatible with the rule of law, and there are certainly tensions between the two, and between it and the principle of separation of powers. The way the courts have resolved these tensions will be seen in the discussion of their approach in later chapters. Dicey sought to resolve them by constitutional conventions, that is by political rather than legal controls.

Some Scottish lawyers consider that ‘the principle of the unlimited sovereignty of parliament is a distinctively English principle which has no counterpart in Scottish constitutional law’: Lord Cooper in MacCormick v Lord Advocate 1953 SC 396 411–12, and see Lord Hope in Jackson v Attorney General [2005] UKHL 56 at [106]. For them, the Act of Union with Scotland 1706 is a higher form of law which may prevail over inconsistent statutes of the UK Parliament. But, short of extreme situations involving derogations from positions protected by the Act of Union, Scottish courts have been reluctant to claim a power to review the validity of a statute of the UK Parliament: MacCormick v Lord Advocate at 413; Gibson v Lord Advocate 1975 SLT 134.

There are also tensions between the representative nature of our democracy, which is reflected in the principle of Parliamentary sovereignty, and the development of referendums and the power of the electorate under the Recall of MPs Act 2015, to trigger a special election to remove their MP before the end of his or her term. These developments, which give an enhanced role to direct democracy and may require some re-evaluation of the idea that ours is a representative democracy, are beyond the scope of this book.

It has been said that ‘since 1832 constitutional revision in Britain has almost exclusively been the work of governments anxious, first and foremost, to broaden the basis of consent for the executive’: Adonis, at 278. This is true of the main components of the UK’s constitutional renewal since 1997, devolution and the enactment of the HRA mentioned earlier. The UK statutes establishing devolved unicameral legislatures and executives limit their competence by reserving certain matters called ‘devolution issues’ to the UK Parliament and by providing that it is beyond the powers of the devolved legislatures to do anything which is incompatible with rights under the ECHR. The courts are expressly given jurisdiction to determine whether the non-sovereign devolved legislatures have acted within their competence on these matters. Sections 3 and 4 of the HRA have made the ECHR and its values part of our domestic law, except where the UK Parliament has unequivocally legislated to the contrary. These major constitutional measures have resulted in renewed interest in the rule of law and the separation of powers.

In the HRA, Parliament sought to reconcile the enhanced effect given in domestic law to the rights under the ECHR with Parliamentary sovereignty. It did so by the powerful interpretive requirement in section 3 which obliges courts to read legislation in a Convention-compatible way where ‘it is possible to do so’, but not permitting them to override legislation that cannot be read in a compatible way. In such cases, section 4 preserves the sovereignty of Parliament and its role by providing that courts are limited to declaring that legislation is incompatible with a Convention right, which, see 126–7 and 135–6, leaves it to Parliament to decide whether to amend or repeal incompatible legislation.

The force of the interpretative obligation in section 3 is seen from Ghaidan v Godin-Mendoza [2004] UKHL 30 in which the same-sex partner of a statutory tenant was held entitled to succeed to the tenancy although the conventional interpretation of the provision in the Rent Act 1977 treated survivors of same-sex partnerships less favourably than survivors of opposite-sex partnerships. Lord Nicholls stated that section 3 ‘may require a court to depart from the unambiguous meaning the legislation would otherwise bear’ provided the meaning is not ‘inconsistent with a fundamental feature of [the] legislation’. That, he stated, would ‘cross the constitutional boundary section 3 seeks to demarcate and preserve’. In such a case, as exemplified by Bellinger v Bellinger [2003] UKHL 21 referred to at 126–7, a declaration of incompatibility will be made.

Although devolution and the HRA may in practice have eroded the sovereignty of the UK Parliament, formally and legally it remains. In 2005 Lord Bingham described it as ‘the bedrock of the British Constitution’ and Lord Steyn stated that it is ‘the general principle of our constitution’: see Jackson v Attorney General [2005] UKHL 56 respectively at [9] and [102]. See also Bingham 2011, Chapter 12.

The main issue in Jackson’s case was whether the Hunting Act 2004 banning most forms of hunting with dogs was not primary legislation because it was passed without the consent of the House of Lords using the power under the Parliament Act 1949, an Act itself made under the Parliament Act 1911 and without the consent of the House of Lords. The argument that the 1949 Act was delegated or subordinate legislation and, as such its validity was open to investigation in the courts, was rejected (at [64]) as ‘an absurd and confusing mischaracterisation’.

As to wider aspects of sovereignty, Lord Bingham referred at [41] to concerns that the effect of the Parliament Acts 1911 and 1949 has been to erode ‘the checks and balances inherent in the British constitution when Crown, Lords and Commons were independent and substantial bases of power, leaving the Commons, dominated by the executive, as the ultimately unconstrained power in the state’. The abolition of the House of Lords’ veto on legislation, while justified by its unelected nature, has been an important element in this erosion. The resulting weakness of Parliament in restraining the executive has, however, led to a debate about the nature of Parliamentary sovereignty.

Is, as some consider, sovereignty a construct of the common law created by the judges and which they might have to qualify using techniques with deep historical roots, in the words of Lord Steyn in Jackson’s case at [102], ‘in exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts’? A similar view was taken by three members of the Supreme Court in R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 at [144]. Or was sovereignty created by Parliament’s victory in the English Civil War in the seventeenth century, the political reality of which was then accepted by the courts? For that reason, Lord Bingham 2011, at 168 considered that Parliament might legislate in a way which infringed the principles of the rule of law if it did so very clearly.

Lord Bingham rejected the argument that the courts could modify the principle of Parliamentary sovereignty because he did not regard it as just a common law rule but as the rule of recognition which is the ultimate foundation of our entire legal system. He considered that as such it cannot and should not be altered by judges because that would mean that an undemocratic part of the state...