Return to the Rule of Law – Part 3

This series is intended to explain the rule of law at a basic level to give a clearer view for easier understanding by the public.

It is by no means a complete view which would be academic in nature.

What are the formal and substantive elements of the rule of law?

If I were to go back to using my previous example: Parliament decides, and correctly passes a law to the effect that 95% of your earnings will be taxed – taken by the State – what would be your reaction? I am certain that not many people will agree to bringing home 5% of their earnings.

The scenario above demonstrates both elements of the rule of law; the formal element is the passing of the law, using the correct procedures established. The substantive element of course, is the content of the law, what it says.

I will use another real example. A law is passed:

 

A subject of the state is a person who enjoys the protection of the German Reich and who in consequence has specific obligations toward it.

Do you see any problem with this? This was an actual law passed in Germany prior to World War II. It was ‘legally’ passed by the Reichstag (German authority led by a legally elected Adolf Hitler) at the time.

The content, of course, is questionable, and certainly does not meet some of the requirements of the rule of law as laid out by Prof Raz. Specifically, can anyone say that this particular law is clear? Would a person be able to predict accurately how the State will confirm his citizenship? Can it be challenged in the courts, with a predictable outcome? What if the Reich ‘withdraws its protection’ of a person, is that person still a subject of the State?

The formal element of the rule of law

What I am calling elements were described by Prof Paul Craig as ‘conceptions’. So, you may see references to conceptions on various websites.

A formal element/conception of the rule of law addresses the manner in which the law was promulgated. The formal element looks at whether the law was created in a properly authorised manner, by a properly authorised person/body, whether it is sufficiently clear to guide an individual’s conduct et cetera. Thus, if we go back to Prof Raz’s work, we can see the formal concept on display. The drawback is that the substantive conception/element is missing – once a law is passed properly in the prescribed manner, it is still law, regardless of the content.

We see this in the examples of laws passed by Nazi Germany prior to World War II, South Africa under the apartheid system (it was all legal), modern China, and North Korea et cetera. These are all valid legal/political systems within formal sense of the rule of law, but lack respect for or even acknowledgement of most human rights.

We hope and expect that the content of laws should be morally sound and that rights are protected therein. There is an obvious problem in this formal view, which is: the rule of law is not about the rule of “good” law. Hence the importance of the judiciary being independent in order to bring checks and balances – restraint – to arbitrary exercises of State power. If the judiciary follows the State, anarchy is not far behind – again, look at Nazi Germany, apartheid South Africa, et cetera. In addition to the independence of the judiciary, there must also be integrity of the judicial system itself as well as government accountability to help protect the rights of ordinary people, help settle their disputes and protect them from abuses of power – both private and public.

The 8 principles in the formal view of the rule of law (generality; publicity; prospectivity; intelligibility; consistency; practicability; stability; and congruence) was shared by Dicey, Prof Fuller, and Roberto Unger, among other academics theorising on the rule of law. Their work has contributed immensely to our understanding of the rule of law, pointing out inherent weaknesses in the formal conception. What seems to overcome these weaknesses is the introduction of a substantive element into the rule of law.

The substantive conception of the rule of law

We can look at law as having 2 opposing faces: first, it imposes conditions on the people which they must comply with, and second, it instructs officials of the State in what to do when the law is not complied with.

When stated like this, it is easy to see that law that does not meet the 8 principles with respect to people, may still be lawful with regard to the State. A person not knowing what he is charged with or found guilty of because of a secret trial or suppressed evidence in which the State holds all the cards, gives rise to – well, Guantanamo Bay, for example.

Or as Arthur Chaskalson, former Chief Justice of South Africa, said with respect to law that fails to recognise fundamental human rights:

[T]he apartheid government, its officers and agents were accountable in accordance with the laws; the laws were clear; publicized, and stable, and were upheld by law enforcement officials and judges. What was missing was the substantive component of the rule of law. The process by which the laws were made was not fair (only whites, a minority of the population, had the vote). And the laws themselves were not fair. They institutionalized discrimination, vested broad discretionary powers in the executive, and failed to protect fundamental rights. Without a substantive content there would be no answer to the criticism, sometimes voiced, that the rule of law is “an empty vessel into which any law could be poured”.

The emphasis is mine.

The late Lord Bingham (The Rule of Law, 2010) was acerbic in his observation that:

A state which savagely represses or persecutes sections of its people cannot in my view be regarded as observing the rule of law, even if the transport of the persecuted minority to the concentration camp or the compulsory exposure of female children on the mountainside is the subject of detailed laws duly enacted and scrupulously observed.

Lord Bingham, like Profs Raz and Fuller, also argued that there are eight conditions for the rule of law to work:

1.    the law should apply equally to all;

2.    it should not be accessible only to the rich, meaning that disputes should be solved relatively cheaply;

3.    it must be easy to understand;

4.    it must protect fundamental human rights;

5.    it must be speedily enforced;

6.    the right to a fair trial is a cardinal requirement;

7.    public officials should not abuse their powers; and, finally,

8.    States should respect international law.

The fourth condition requires due regard to human rights, especially fundamental rights, which must be observed by the State if it is to fall within the ambit of the rule of law. Of course, the argument against the recognition of rights within the rule of law is that perennial question – which rights ought to be given priority? This is not only a legal question, but also a political one. Political because it is politicians who decides our rights and the conditions which we may access or assert those rights.

There is no question that people feel very strongly about their human rights, the way the State exercises its power through its agents, and indirectly, the rule of law, even if they do not understand the concept completely.

Next: the rule of law in economics.

Return to the Rule of Law – Part 2

This series is intended to explain the rule of law at a basic level to give a clearer view for easier understanding by the public.

It is by no means a complete view which would be academic in nature.

In the first part, I looked at AV Dicey’s theory on the rule of law. Now I will look at some principles inherent to the rule of law.

 

Last night, my phone rings. Private number. When I answer, the caller is a friend who just asks, “What would you say are the foundations of democratic principles? There is no right and wrong answer in this.”

 

I didn’t respond immediately. Slow and measured thinking is required. This colleague is well-known for trick questions.

 

After a few moments, I answer, “The rule of law and protection of human rights.”

 

Am I right? Well, my colleague concurred. He explained that he was upset by recent goings on here in the UK where ‘freedom of speech’ is being locked down on very important issues. He went on in some distress about people being barred from entering the UK because they intended to deliver a speech at Speakers’ Corner in Hyde Park, in London. The authorities perceived the speech as likely to offend the ‘public good’. His perception is that now people are to be banned from speaking the truth, if it would upset the ‘public good’ [a concept in law]. I checked on these matters, which are real and in the public domain.

 

How those in power deal with restrictions on the freedom of speech, is important because it is both about the exercise of power and potentially impacts on a human right (namely freedom of expression). I thought more about the foundations of democracy and the related principles. My colleague went on to mention George Orwell’s book ‘1984’.

 

If searching online for an answer to my friend’s question, various websites give ideas such as free and fair elections, human rights and fundamental freedoms, open and accountable government, and a ‘civil’ society. These are all true, but any fair-minded analysis of what they are, how they are arrived at, shows that they are primarily derived from the rule of law and protection of human rights. These two pillars - the rule of law, and the protection of human rights, go back over 2000 years. They are twin pillars that are almost fused together.

 

If you would grant me that the rule of law is such a powerful ingredient of democracy, why is it so misunderstood? Dicey’s three principles on the rule of law broadly says: The State cannot exercise arbitrary power; there must be equality before the law; and human rights are recognised from restraints on arbitrary power. Obviously, they throw up more questions that need to be determined. What is arbitrary power? What does equality mean? For that matter, what is law? Or rights?

 

The rule of law is an abstract concept but that means it is difficult to understand. If we try to simplify: How would you like if the government passed a law to empower the police to come into your house and take all your money away and freeze all your bank accounts? A very similar scenario occurred in 1933 in America. President Franklin D Roosevelt used the ‘Trading with the Enemy Act of 1917’ to make gold ownership illegal! This was issued by executive order 6102. The effect of all this was that possession of any gold coin or gold item was punishable by 10 years imprisonment and a fine of double the value of the gold possessed. You should be thinking, ‘What protections would I have? What are my rights? Where are my rights? How can I enforce my rights against that sort of power?’

 

If that above didn’t wake you up, consider how you would feel if your Parliament passed a law that meant you would be taxed at 95% on any and all of your earnings. What would you do? How would you feel about something that was perfectly legal but which would be totally ‘unfair’?

 

It is necessary to dig a bit deeper into the foundations of democracy. There are several different theoretical variants of the rule of law, making it harder to understand what it is and how it works. Prof Joseph Raz pointed out that the rule of law required eight conditions/principles to guide people’s behaviour so that they may act lawfully. The rule of law is not simply ‘the rule of the law’.

 

First, “all laws should be prospective, open, and clear.” The idea of this is quite clear – one cannot obey a law that is not yet written, kept hidden, secret, or opaque. The law must also be accessible.

 

Second, “laws should be relatively stable.” Again, the idea behind this is simple. Stability in the law gives people opportunity to plan their lives, carry out business et cetera. At the same time, laws should not be fixed and unyielding.

 

Third, “the making of particular laws, (particularly legal orders), should be guided by open, stable, clear, and general rules.” The idea behind this is to control discretionary powers granted to State authorities. Citizens should be able to predict how discretionary powers will be applied to their situation. Therefore, the discretionary powers themselves ought to be guided by clear guidance.

 

Fourth, “the independence of the judiciary must be guaranteed.” This is an important point supporting stability of the law. If the judges could not decide cases according to law, but by pressure from some external source, there would be no predictability/certainty in the law and citizens would thus not be able to be guided by it. It is essential to insulate judges from such pressure.

 

Fifth, “the principles of natural justice must be observed.” Natural justice requires that hearings be free and fair from bias, that fair procedures be adopted, that equal opportunity to be heard be given to both parties. Again, this is important so that citizens may know what is required of them to live within the law, and for the law to be applied impartially.

 

Sixth, “the courts should have overview over implementation of these principles.” In other words, the courts should have the power to examine the legality of legislation, the actions, and decisions taken by government bodies.

 

Seventh, “the courts should be easily accessible.” Long delays or excessive costs deny citizens justice, prevent assertion of rights or defence of their actions, and prevent the law from being enforced.

 

Eight, “discretion of state agencies, such as crime prevention, should not be allowed to pervert the law.” The discretion to act or not act against the citizen is built-in into the criminal justice system. This discretion ought not to be systematically used/abused to exempt certain classes of people from obeying the law.

 

These seem to be quite clear at first glance. However, a closer examination of these principles will show that hardly any mention is made regarding the content of the law. These principles are mainly about procedure in making laws and applying them subsequently. This brings the rule of law to a different focus – the substantive element or content of the law, and the formal or procedural element which addresses the way the law was created. But most importantly the rule of law is about restraint in the use of power.

 

Next: looking at the substantive and formal elements of the rule of law.

A return to the Rule of Law – Part 1

The Rule of Law

What is it? A conflict of suppositions

Many politicians use this phrase, attempting to say, “No matter the judgment, we won.” Or as Professor Jeremy Waldron (commenting on Bush v Gore) said:

‘… the utterance of those magic words meant little more than “Hooray for our side”’. (Bingham, p5)

Judges use it to describe concepts of law, yet it is interpreted differently by everyone. No two persons have the same view of the Rule of Law and what it means, and neither will be wrong, nor necessarily right.

The Rule of Law is a paradox, a contradiction both in theory and practice. A close examination will reveal the truth of that statement.

• · It is not legally enforceable, but it is enforced in courts.
• · It suggests a limitation to State power from abuse yet has no force.
• · Everyone “understands” what it means, yet no one does.
• · Its power come from emotive appeal, but not law.
• · It suggests an absence of tyranny but offers no protection from tyranny.
• · It is a method of social control without legal rules.
• · It is ‘fixed’ yet constantly in flux.
• · It is political, yet apolitical.
• · It conflicts with the notion of Parliamentary Sovereignty (the idea that Parliament can make or unmake any law).
• · It appears in written instruments of law but always without a clear definition.

The above is a non-exhaustive list. I will attempt to give a short explanation of what it is, and at the same time attempt to show what it isn’t. In trying to explain misconceptions people have of the rule of law, and comparing of some of its strengths and weaknesses, hopefully, some of the paradoxes above will be explained also.

The idea of ‘rule of law’ is very old, and has been traced way back to the time of Aristotle (384 – 322 BC):

“It is better for the law to rule than one of the citizens … so that even the guardians of the law are obeying the law.”

Stripped bare: A first look

However, law students first encounter the phrase ‘rule of law’ in connection with Albert Venn (AV) Dicey (1835 – 1922), former professor of law at Oxford University who popularised the phrase in his book: “Introduction to the Study of the Law of the Constitution”. Dicey was, for many years, considered the foremost ‘authority’ (I use that word with due caution) on the rule of law. He suggested that there were three tenets, or principles, present in the rule of law:

1) The State cannot exercise arbitrary power.

This simple statement is more revealing than it appears. What Dicey envisioned was that the State’s power, and its use of that power, must be controlled by law and the State cannot be allowed random powers or arbitrary use of those powers. Dicey also thought that rulers of State do not have any wide discretionary powers to create law but must do so within an established framework for creating laws, or by prior established law. In other words, the State cannot arrogate onto itself powers that it does not have, or think it has.

There is another principle associated with the use of law to control the State’s power. This asserts that a person cannot be punished by the State for something which is not against the law, or which was not against the law at the time he did it. In plain words, if an act is not explicitly forbidden, it is permitted and cannot be made a crime retroactively. Also, a person may only be punished for a breach of law proved before an ordinary court.

2) There must be equality before the law.

This may perhaps be a self-evident principle but one which is clear: Everyone, including the State and its agents, are bound by the same laws.

“Be ye ever so high, still the Law is above Thee.” (Thomas Fuller)

3) Origin of rights

In Dicey’s view, rights of the Englishman were derived from judgments coming from the courts, whereas under ‘Continental’ constitutions, he saw rights as being derived from the principles laid out in those constitutions.

Under the British Constitution therefore, rights were gradually obtained through judgments in which distinct principles were identified as abuse of power against the common man. Limitation of those excessive powers resulted in identifiable rights.

Case example

Entick v Carrington [1765] EWHC J98 (KB) beautifully illustrates several of the principles explained in the preceding paragraphs.

On 11 November 1762, Lord Halifax, a newly appointed Secretary of State, sent his Chief Messenger with a warrant, one Nathan Carrington (the defendant), to the home of John Entick (back then called the plaintiff). There:

“with force and arms broke and entered the dwelling-house… and continued there four hours without his consent and against his will, and all that time disturbed him in the peaceable possession thereof, and broke open the doors to the rooms, the locks, iron bars, etc. thereto affixed, and broke open the boxes, chests, drawers, etc. of the plaintiff in his house, and broke the locks thereto affixed, and searched and examined all the rooms, etc., in his dwelling-house, and all the boxes, etc., so broke open, and read over, pried into and examined all the private papers, books, etc. of the plaintiff there found, whereby the secret affairs, etc., of the plaintiff became wrongfully discovered and made public and took and carried away 100 printed charts, 100 printed pamphlets, etc. etc. of the plaintiff there found, and other 100 charts etc etc took and carried away, to the damage of the plaintiff 2000l (£2000)”

Arising out of the judgment were the following principles:

• · A State official cannot appropriate for himself power he does not have.
• · A State official’s authority must be clearly established in law.
• · The State is permitted to do only what is expressly (explicitly stated) permitted in law, but the individual may do anything except that which is expressly forbidden in law.
• · “Every invasion of private property, be it ever so minute, is a trespass”. This is also reiteration of the concept, “A man’s home is his castle…”. No one can interfere unlawfully with a person or his property.
• · The burden is on the trespasser to show cause.

Perhaps the best overall interpretation would be saying that a person has the right to respect for his private life, home etc.

Dicey’s view of the rule of law was understandably narrower than today’s perception, which, thanks to several academics such as Raz, Unger, Dworkin, Fuller and Bingham is more comprehensive than Dicey’s.

Next, a look at alternative views on the rule of law, and how Dicey’s observations were expanded upon.

Sources of law – common law

Unit 6 of W101 continues with the sources of law, in this case, the common law. In this unit, the learning outcomes are as follows:

Learning outcomes

After studying this unit you should be able to:

• explain what is meant by the common law system in England and Wales
• discuss the hierarchy of the court system and the operation of judicial precedent
• explain what is meant by reversing, overruling and distinguishing
• read a case and consider the reason for the decision
• explain what is meant by ratio decidendi and obiter dictum.

© The Open University

The unit begins by asking what would happen in a society without law. I have to confess, my thoughts immediately ran to Syria, as I view it as a society without law. ‘Sharia law’ (in my opinion) doesn’t count as law since it depends on (a) a male oriented view detrimental to women, (b) personal interpretation and thus the strong can impose their will on the weakest, and (c) it is exceptionally cruel, (d) it does not progress, but rather regresses.

My point is that a society without law will soon descend into anarchy and chaos, and no one will be safe. No one can express their thoughts, or enjoy the freedoms we have in the UK society.

I will not write too much about the history of the common law as many websites, such as that of the Encyclopaedia Britannica (click for links) has more than adequately explained it. I will however, recommend reading the history as it is quite fascinating to see how the law as we know it, developed from tribal customs.

With regards to the common law, let’s examine some ways the criminal law was developed.

Murder was a crime created by the judiciary, which also created the conditions (legal rules) to identify both the mental intention (mens rea) and the act (actus reus) of this offence. Some of the conditions are:

• The offence must be proven beyond a reasonable doubt.

• The death of a human being must be caused. This has been narrowed down by the judiciary to refer to a person who has existed independently of a mother after birth. This means the child has been born and has breathed independently from its mother. You can start to see how the common law offence of murder is not as straightforward as you may have first thought. For example, if a pregnant woman was stabbed and the foetus (unborn child) died, this would be unlawful and a criminal offence but not under a charge of murder. This would be covered by a different law, such as child destruction.

• The definition of death has been considered by the judiciary who have provided guidance. For the lay person death may be defined as a person no longer breathing and no longer having a heartbeat. However, the legal definition of death is different. There appears to be a consensus in the judiciary that death occurs when the brain dies, but this is a question of fact which needs to be considered by the court in every case.

• Causation must also be established. This means that it must be shown that the death of the victim was caused by the defendant: that is, the person who allegedly committed the crime. That there were no other intervening acts which may have caused the victim’s death is a fact which must also be established.

© The Open University

There will be more on murder in W102 but at this point, we can see how rules around murder were developed through decisions of the judiciary.

Similarly, the civil or private law was also developed by judges.

Civil law deals with private disputes, and while the State provides courts where the disputes are heard, the heart of private dispute lie with the interested private parties. Private law covers such things as negligence, contracts, tort (wrongs), unpaid debts etc.

There are several examples where judges have developed the common law in private disputes. For example, in Donoghue v Stephenson [1932]  Lord Atkins identified ‘duty of care’ and to whom it was owed, known familiarly as ‘the neighbour principle’. Another principle is the ‘doctrine of frustration’ established in 1863 in the case of Taylor v Caldwell.

Of course, we will later learn much more about these and other developments and more about the common law.

How statute is interpreted and applied

Unit 5 of W101 deals with how statute is interpreted and applied, and readers may want to go back to the 4 rules of interpretation prior to continuing:

• The Literal Rule
• The Golden Rule
• The Mischief Rule
• The Purposive Approach to interpretation

Learning outcomes

After studying this unit you should be able to:

• understand the need for statutory interpretation
• understand the role of judges in applying the law
• understand the rules of statutory interpretation
• be aware of the internal and external aids to interpretation
• understand how the judges apply the different rules of interpretation.

© The Open University

Statutes are drafted by specialist government lawyers called Parliamentary Counsels. They have to choose words with care when drafting legislation, for a number of reasons. Let’s consider some ways statutes may have some problems in interpretation:

• While passing through Parliament, the statute may have been subject to changes, and as a result, some of the wording has changed so that original clarity was lost.
• Due to the number of Bills passing through Parliament (greatly increased in recent years), Parliamentary scrutiny may be less than rigorous due to lack of time. Errors may slip through.
• All languages have ‘an inbuilt imprecision’, leaving words open to ambiguity:
• Words can have different meanings, depending on the context in which they are used.
• The meaning of a word can change over time.
• Unforeseen events or developments (such as in technology) may occur.
• Statutes are drafted in a general way that cannot cover every circumstance, but might need a court to resolve a specific situation.

The relationship of the rules of interpretation

There is no hierarchy in the use of the rules of interpretation. The position has been aptly explained by Lord Reid:

They are not rules in the ordinary sense of having some binding force. They are our servants, not our masters. They are aids to construction, presumptions or pointers. Not infrequently one ‘rule’ points in one direction, another in a different direction. In each case we must look at all relevant circumstances and decide as a matter of judgment what weight to attach to any particular ‘rule’. (Maunsell v Olins [1975] AC 373)

© The Open University

Aside from the rules of interpretation, judges may use a number of different internal and external aids to help them.

Internal aids are found within the statute, such as explanatory notes, presumptions and rules of language.

Explanatory Notes:

“A judge may look for guidance on the meaning of the Act itself in any definitions sections, headings, side or margin notes etc. Older statutes usually have a ‘Preamble’ at the beginning which sets out Parliament’s purpose in enacting the Act.” Keep in mind that this is for guidance only, as these are not actually part of the statute.

Presumptions:

“The courts have developed certain presumptions when interpreting statutes. The courts assume that certain points are implied in the legislation unless they are rebutted by the words in the statute which indicate something to the contrary.”

Some common presumptions are:

• Statutes do not apply retrospectively. It’s presumed that it is unfair to punish someone for  something that was not a crime when it happened, but later became a crime. It is important for people to know the legal implications of their actions. However, there are some cases where statute will apply retrospectively, but in cases like these, it will be stated in the statute itself. An example is the Adoption Act 1976 was brought into force on 1 January 1988 but replaces an earlier Act retrospectively from 1 January 1976.
• There is a presumption that a mental element (blameworthiness or intention – the mens rea) is required for criminal offences. For crimes that do not require intention (strict liability), the statute will reflect this.

• Statutes do not alter the common law – unless a statute expressly states that the common law has been changed it will remain as it is.

• Statutes do not affect the Crown – unless the statute contains a clear statement to the contrary it is presumed not to apply to the Crown.

• Statutes do not intend to deprive a person of their liberty – unless it explicitly makes provision for this form of punishment.

• Statutes do not intend to conflict with the country’s international law obligations, and so where possible statutes should be interpreted to give effect to existing international legal obligations.

• Statutes are ‘always speaking’ – this means that they need to be interpreted in the modern legal context rather than being fixed with the meaning that they had when they were created.

Rules of Language:

Rules of language are expressed in Latin terms, so students should familiarise themselves in recognising the expressions.

• “Ejusdem generis – this means the same type. If there is a list of specific words followed by general words then the general words are limited to the same kind of items as the specific words. So, for instance, if an Act stated that it applied to ‘dogs, cats, guinea pigs, hamsters and other animals’, then the words ‘other animals’ would be taken to mean animals of a similar type to the preceding list, so it would not include wild animals such as badgers.”
• “Noscitur a sociis – a word is known by the company it keeps. This means that the words in the statute must be looked at in context and interpreted accordingly. The other words in the same section or sections of the Act should be considered. It is wider than ejusdem generis, which only applies to general words at the end of a list of specific words.”
• “Expressio unius est exclusion alterius – this means that the mention of one thing excludes the others. Where specific words are used and not followed by any general words then the Act applies only to the specific words.”

© The Open University

“Some external aids have long been used to provide helpful guidance on the meaning of the words in a statute – these include:

• Other Acts of Parliament on the same topic have been used when applying the mischief rule.
• Dictionaries may be consulted to find the meaning of a word.

• The Interpretation Act 1978 – this Act sounds more promising than it is, but it does provide a number of standard meanings which can be applied to Acts of Parliament. For instance, the word ‘land’ includes land, buildings and other structures. Section 6 is particularly well-used:

  Section 6 of the Interpretation Act 1978 provides:

  In any Act, unless the contrary intention appears, —

  • (a) words importing the masculine gender include the feminine;
  • (b) words importing the feminine gender include the masculine;
  • (c) words in the singular include the plural and words in the plural include the singular.
• Textbooks/academic commentary on the relevant legal issue may be consulted.
• International treaties and conventions can be given national effect and are incorporated into an Act of Parliament. The courts may consult the wording of the original treaty or convention to ensure that they give effect to its true meaning.

Other external aids have been more controversial in their use by the courts. The courts have traditionally taken a restricted approach to what can be considered when interpreting a statute. However, this attitude has been considerably relaxed with the increased use of the purposive approach and judges will now consider the following:

• Reports – legislation is often preceded by a report highlighting issues of concern. These reports may be the work of ad hoc committees or commissions set up to consider a particular issue. Alternatively, they may be the work of one of the permanent law reform bodies such as the Law Commission. Its reports do on occasion lead to legislation. For instance, the Law Commission consultation paper Reforming Bribery (2008) formed the basis for the Bribery Act 2010 which updated the laws on bribery and corruption.
• Pre-parliamentary materials – Green and White Papers are prepared by government departments in preparation for new legislation.

• Hansard – contains the official daily ad verbatim report of parliamentary debates in the House of Commons and the House of Lords. It provides a record of what was said as the legislation was in the process of being approved by Parliament.”

© The Open University

Primary and Secondary Legislation

Primary legislation is also known as enabling legislation. You may also hear such legislation being referred to as ‘parent’ Acts or ‘parent’ legislation. This is not a complex idea. It really means that Parliament has created an Act of Parliament that devolves (pass on or delegate to another) some power to a subordinate person or body, who is allowed, usually in limited circumstances, to make rules or subsidiary law (delegated or secondary legislation). The important point to note is that the delegated or secondary legislation is given powers only by the parent legislation. If the delegated or secondary legislation is within the scope of the parent or enabling Act, it are said to be intra vires (a Latin term meaning ‘within the powers’). If the delegated or secondary legislation lie outside the scope of the parent or enabling Act, it is said to be ultra vires (or ‘outside the powers’). The process of investigating whether the delegated or secondary legislation lies within or outside the scope of the primary legislation is known as judicial review.

There are two types of secondary legislation (some universities may mention 3).  Dr Stephanie Pywell, writing in the New Law Journal (2013, p. 231) explains why there are 2 and not 3 types of secondary legislation:

The nature and classification of delegated legislation features in most introductory level law courses. For many years, most students have been taught that they are three types of delegated legislation: statutory instruments (SI), byelaws and Orders in Council. Research using Parliamentary papers indicates, however, that this method of classification is misleading, and that it is appropriate to identify two distinct types of delegated legislation: statutory instruments, of which there can be considered to be five forms, and byelaws.

Forms of statutory instrument:

SIs were created by the Statutory Instruments Act 1946. Section 1(1) is entitled "Definition of' Statutory Instrument'" and provides that there are two ways in which delegated legislation ("orders, rules, regulations or other subordinate legislation") may be made. If the law-making power is conferred on the Crown it is exercisable by Order in Council; if it is conferred on a minister, it is exercisable by SI. In either case, the resulting document "shall be known as a 'statutory instrument'". By definition therefore, Orders in Council are a form of SI, rather than a separate type of delegated legislation.

Additionally, the standard reference document used in the drafting of SI's (Statutory Instrument Practice: a manual for those concerned with the preparation of statutory instruments and the Parliamentary procedures relating to them [Fourth edition]) identifies at paragraph 1.5.3 another UK-wide SI called Order of Council.

So what are these 5 types of Statutory Instruments (SIs)? They are Orders in Council, Orders of Council, orders, rules, and regulations. I’ll discuss each below:

Orders in Council:

Orders in Council require the personal consent of the Queen but are issued by and with the advice of the Queen’s Privy Council. They are used when ordinary ministerial transfer of powers would not suffice. For example, an Order in Council was made to appoint Theresa May as the First Lord of the Treasury when she became Prime Minister on 19th May 2016.

Orders of Council:

Orders of Council are made by the Privy Council and have the force of law, but do not require the personal consent of the Queen. “Again these can be statutory or Prerogative. Whether statutory Orders are also Statutory Instruments depends on the wording of the particular Act under which they are made. Examples of statutory Orders of Council include approval of regulations made by the General Medical Council and other regulatory bodies. Examples of prerogative Orders of Council include approval of amendments to the By-laws of Chartered bodies.”

Orders:

"Orders are usually made by government ministers, and serve a specific, closely defined purpose. They should be used for executive powers and judicial and quasi-judicial decisions. Four specific types of order – Commencement Orders, Legislative Reform Orders, Remedial Orders and Public Body Orders – are worthy of particular mention because of the important purposes that they serve." [Pywell, 2013]

Commencement Orders

Commencement Orders (COs) bring into effect one or more sections of an Act of Parliament. They are widely used because it is often the case that not all of an Act comes into force on the date on which it receives the Royal Assent. It is common for an Act to include wording such as: "The provisions of this Act come into force on such day as the Secretary of State may by order appoint". [Pywell, 2013]

Legislative Reform Orders

Legislative Reform Orders are made under the Legislative and Regulatory Reform Act 2006 (LRRA 2006) and enable ministers to effect changes to primary legislation. You may recall that these are known as “Henry VIII clauses” and are often controversial. "A minister proposing an LRO must demonstrate that the proposed legislation is needed, is proportionate, represents a fair balance of interests, does not remove any necessary protection, does not unreasonably interfere with rights and freedoms, and has no constitutional significance." [Pywell, 2013]

Remedial Orders

Remedial Orders are used to correct shortcomings in existing legislation such as when a court declares legislative provisions to be incompatible with the European Convention on Human Rights, or when the European Court of Human Rights has determined that an individual's Convention rights have been infringed. Remedial Orders can have retrospective effect and must normally be laid before Parliament before they become law. An example of a Remedial Order is the Terrorism Act 2000 (Remedial) Order 2011, which repealed the extensive stop and search powers and replace them with powers that could be only exercised in much more limited circumstances. [Pywell, 2013]

Public Bodies Orders

The Public Bodies Act 2011 permits ministers to abolish, merge or modify the constitutional and funding arrangements of public bodies.

Rules:

Rules set out procedural laws, that is, they set out how things should be done rather than what should be done. The best-known example of rules are probably the Civil Procedure Rules 1998 (SI 1998/3132) which govern the running of the civil court system.

Regulations:

"Regulations are used to make substantive law – often amendments to existing primary or secondary legislation – and are frequently technical in nature. Regulations enable the law to be maintained and kept up-to-date and students should think of them when they learn that the advantages of delegated legislation include the use of expert advice to create detailed provisions and the result in saving of Parliamentary time. " Think of building regulations. [Pywell, 2013]

All of the above are forms of statutory instruments. The other remaining type of secondary legislation is byelaws.

Byelaws

Byelaws are made under the limited law-making powers conferred on local authorities and statutory bodies. They must be authorised by a Secretary of State (byelaws can create criminal offences and therefore must be duly authorised) and can deal only with matters within the jurisdiction of the maker. They usually reflect concerns within a local area.

The Parliament Acts of 1911 and 1949

Up until the first decade of the 20th century, the House of Lords had the power to veto any legislation coming through the House of Commons. In 1909 the House of Lords refused to pass the "People's budget" of David Lloyd-George. Subsequently, in 1911 the Parliament Act (1911) was passed, plus restricting the House of Lords from vetoing any Act of Parliament – with the exception of one to extend the lifetime of Parliament – and also reduced the lifetime of Parliament from 7 years to 5 years (meaning that a general election should be held every five years). The Parliament Act 1911 gave the House of Lords an option to delay any Bill for up to 2 years.

The 1949 Parliament Act further reduced this period of 2 years down to 1 year. Both the 1911 and 1949 Parliament Acts work together. Since 1949, only 4 Bills have been passed using these Acts:

War Crimes Act 1991
European Parliament Elections Act 1999
Sexual Offences (Amendment) Act 2000
Hunting Act 2004

As a matter of convention, the House of Lords does not veto any Bill related to a matter mentioned in an election manifesto.

Another convention is that Parliament cannot bind any previous Parliaments. What this means in practice is that any new government that is formed may make changes or repeal any previous legislation from preceding governments thus ensuring that the legislative power of the government is not restricted in any way. You can read more about conventions of the UK Parliament here.

Bear in mind that conventions are also a source of law under the UK constitution and cannot be easily changed.

The Westminster Parliament

The Westminster Parliament consists of two chambers (also known as ‘Houses’) called the House of Commons and the House of Lords. Having two chambers or houses is known as a bicameral parliament while having one legislative body (like the Welsh Assembly) is a unicameral parliament.

Theoretically, the Monarch is a third element of the law-making process, having to give formal approval for the proposed legislation to become law. This is done by affixing his/her signature (known as giving Royal Assent) to the legislation. In reality, no Monarch has done this since 1854 but it is actually done on behalf of the Monarch.

Theoretically also, the Monarch can withhold Assent to any legislation but this has not been done since 1707. You can read more about the role of the Monarch (currently a Queen) here.

House of Commons:

The House of Commons is considered to be the more important of the two Houses. The Members are also called Members of Parliament or MPs and are elected every 5 years in a general election. They are elected from constituencies or ‘seats’ by the people who reside in these areas, and are elected to represent the interests and concerns of the people who voted for them. They may also propose new laws, questions government ministers and generally raise interest in matters you think are important.

The House of Lords:

“Members of the House of Lords are not elected and are made up of peers, who have been appointed by the House of Lords Appointment Commission (HLAC), and life peers The HLAC is an independent body which was established by the then Prime Minister, Tony Blair, in 2000. Peers have a wide range of knowledge through experience gained during their professional careers, such as in the legal or academic professions, business, health and in various roles in public service. They utilise their occupational experience by contributing to matters which are debated in the House of Lords, such as education, health and public services. The function of the House of Lords is important as it contributes to the democratic process by scrutinising and revising proposed legislation that has been proposed by the current government, but as you will see later on in this unit their power to block legislation is curtailed by the Parliament Acts 1911 and 1949.

Members of the House of Lords do not have to be in a political office, such as being a member of a political party and, therefore, do not have to adhere to the convention of being either collectively responsible for a party policy or supporting proposed legislation. They may have a personal political persuasion and have previously held a ministerial role within a political party but this does not take away their independence as a member of the House of Lords. This places them in a position where they may either support or challenge a piece of proposed legislation by holding the government of the day to account, by questioning the MPs and undertaking formal enquiries which relate to the specific aspects of the new legislation. However, although members of the House of Lords may delay proposed legislation and bring the matter to the attention of the media and general public, they cannot defeat a piece of legislation. The reasoning behind this position, which is outlined below, is that members of the House of Lords are not democratically elected to this chamber. Whether a piece of legislation succeeds should be according to the will of the people, which is represented in the House of Commons and not by the members of the House of Lords. The bicameral structure of Parliament – the House of Commons and the House of Lords – produces a checks and balance system whereby power is not held by one body: the principle is that there should be transparency during the debate of any proposed legislation.”

[The Open University, 2014]

Next: The Parliament Acts of 1911 and 1949.

Sources of Law–Legislation

Unit 4 of W101 focuses on legislation as a source of law. It focuses on the idea of democracy, how laws are made by Parliament, and devolution.

Learning outcomes

After studying this unit you should be able to:

• explain the roles played by various individuals and bodies who may instigate legislative proposals
• discuss the legislative process in the Westminster Parliament
• distinguish between primary and secondary legislation
• explain the structure of a piece of legislation and discuss its application in context
• explain what is meant by devolution and explain how devolution has evolved in Wales.

[The Open University, 2014]

There are three main sources of law in the UK. These are: legislation, common law, and European law arising out of the EU. Note: this has not changed with the Brexit vote. It is still in effect.

© The Open University, 2014

The above figure gives details on how each of the sources are further sub-divided, so the various sources are more readily understood. However, there is a hierarchy of importance, and the OU advises:

“Given the hierarchical application of the three main sources of law, you need to be able to discuss the legal rules that apply in different situations. When dealing with a problem or essay question, you may need to consider whether the matter is controlled by EU law, by UK legislation or is governed by a previous decision of a court in England and Wales. Dealing with these sources of law and saying which source will prevail is important.”

[The Open University, 2014]

The hierarchy is as follows:

© The Open University, 2014

Democracy:

What is democracy? In theory, it is about the laws reflecting the values and views of the society in which you live, and that you are allowed a say in how you are governed. In the UK, this comes in several forms, one of which is the electoral process in which you get to choose who represents you in Parliament. It is a government by the people. You may have heard the phrase “a government of the people, by the people, for the people”. It was part of Abraham Lincoln’s Gettysburg Address.

The beginning of democracy is universally acknowledged as starting with the Magna Carta in 1215.

Unit 2: The nature of the law

Unit 2 of W101 seeks to define the nature of the law, and has six subsections.

1. Seeking a definition of law
2. law is a system of rules
3. the role of the law
4. law and order in context
5. law and morality
6. law and justice

Each of these obviously has further subsections which I will get to. Rather than deal with each here, I will put it all together under the main subsections.

Definition of the law

There is no simple explanation to say what law is. Many academics and scholars have tried for centuries to define law. No one definition is precise; rather, different definitions just give us a clearer idea when put together.

At the heart of each definition (several of which I will come to shortly) is a common theme: law is a system of rules. Remember that a rule is backed by authority, by someone/some body in a position to enforce that rule. Rules (laws) also are created by some sort of formal process.

John Austin (1790–1859) argues "that law is distinct from other rules as ‘the command of a sovereign backed by cohesive sanctions’. Austin distinguishes law from other rules in the following ways:

• Law is created by a formal recognised process. The nature of the ‘sovereign’ will vary depending on the state concerned; in England and Wales, law is created by the monarch in Parliament.
• Legal rules are obligatory; an individual has no choice but to obey them.
• There is an enforcement mechanism to ensure that the laws are enforced."

[The Open University, (2014, Unit 2]

Note that law is not created by the monarch in Parliament*. The process has evolved since the time of Austin.

Upon reflection, Austin's theory aptly describes criminal law – the obligation to obey rules, and an enforcement mechanism by the State. However, this explanation does not adequately cover civil law where most of the relationships are voluntary.

Professor H.L.A. Hart (1907–1992) divided law into primary and secondary rules.

Primary rules: these rules are needed by simple societies and impose a duty on the members which are necessary for survival – they prohibit socially destructive behaviour. For example, murder and theft or behaviour that causes harm. In simple societies the enforcement comes from social pressure.

Secondary rules: these are needed by more complex societies, where there is need to confer authority and power. Prof Hart identified three types:

• Rules of Adjudication – these include which type of dispute is heard by which court, who is qualified to hear the disputes, and what sanctions are applied when a primary rule is broken.
• Rules of change – these set out the process by which both primary and secondary rules may be changed when necessary.
• Rules of recognition – these tell which rules have legal force, especially in developed societies where rules are numerous and complex.

It is to be noted that there are many theories on law put forward over time from many different people ranging from philosophers to legal practitioners and academics. As mentioned before, a simple definition of what law is, definitely is not a simple task.

Next: the role of the law.

The Rule of Law 1

The rule of law is a concept which, at best of times, is a bit hard to define, though many have tried. A V Dicey is considered the foremost authority, and he put it this way:

• The State cannot exercise arbitrary power: Dicey put forward that the extent of the State’s power, and the use of those powers, should be controlled by law, to provide a safeguard against the State acquiring and using wide discretionary powers (which can be used arbitrarily).
• Equality before the law: No one is above the law, regardless of class or rank. Also, the representatives of the State are bound by the same laws as private citizens.
• Supremacy of the law: That the law is to be known, general, stable, and not made in respect of particular persons. In other words, applying to all and to benefit none in particular.

[The rule of law requires both citizens and governments to be subject to known and standing laws. The supremacy of law also requires generality in the law. This principle is a further development of the principle of equality before the law. Laws should not be made in respect of particular persons. As Dicey postulated, the rule of law presupposes the absence of wide discretionary authority in the rulers, so that they cannot make their own laws but must govern according to the established laws. Those laws ought not to be too easily changeable. Stable laws are a prerequisite of the certainty and confidence which form an essential part of individual freedom and security. Therefore, laws ought to be rooted in moral principles, which cannot be achieved if they are framed in too detailed a manner.] (http://www.ourcivilisation.com/cooray/btof/chap181.htm)

Or, to make it simpler:

1. No one can be punished or made to suffer except for a breach of law proved in an ordinary court.
2. No one is above the law and everyone is equal before the law regardless of social, economic, or political status.
3. The rule of law includes the results of judicial decisions determining the rights of private persons. [http://en.wikipedia.org/wiki/Rule_of_law]

Other theorists such as Hayek, Raz, Thompson, Unger et al have further refined what the rule of law means, but essentially, what is said above remains core to the concept. Raz in particular though has maintained that an independent judiciary (financial independence included) is essential for the rule of law to be maintained.

State intervention usually means the rule of law can be bent, twisted or downright broken. A case in point is the intervention of the State in Germany that led to Nazism and WW2. [See http://en.wikipedia.org/wiki/Nuremberg_Laws ].

When I began to write this, I was told the beginning, the explanation on the rule of law, is too academic. Perhaps so, but I think it is important to get across what the rule of law is, and how important it is to every one of us. A breach of the rule of law affects every single person. I am reminded of Martin Niemoller:

"First they came for the Communists, but I was not a Communist so I did not speak out.

Then they came for the Socialists and the Trade Unionists, but I was neither, so I did not speak out.

Then they came for the Jews, but I was not a Jew so I did not speak out.

And when they came for me, there was no one left to speak out for me."

I hope to share with readers the wisdom of Lord Bingham, one of the most recognised legal minds of our times. On 16th November 2006 the Centre for Public Law held the sixth in the series of lectures in honour of Sir David Williams [Emeritus Rouse Ball Professor of English Law and Emeritus Vice-Chancellor of Cambridge University]. The lecture, simply entitled "The Rule of Law" was given by The Rt. Hon Lord Bingham of Cornhill KG, House of Lords. This lecture was later expanded into a fuller analysis and published by Penguin Books.

THE RULE OF LAW 2006

Lord Bingham argues that there are eight conditions for the rule of law to work:

1. the law should apply equally to all;
2. it should not be accessible only to the rich, meaning that disputes should be solved relatively cheaply;
3. it must be easy to understand;
4. it must protect fundamental human rights;
5. it must be speedily enforced;
6. the right to a fair trial is a cardinal requirement;
7. public officials should not abuse their powers; and, finally,
8. States should respect international law.

Below is Lord Bingham’s lecture. Sad to say, Lord Bingham passed away shortly after he released his lecture as a full book.

©Reprinted with permission from Jumbie’s Watch.

The purposive approach

This approach has emerged in more recent times. Here the court is not just looking to see what the gap was in the old law, it is making a decision as to what they felt Parliament meant to achieve. Lord Denning in the Court of Appeal stated in Magor and St. Mellons Rural District Council v Newport Corporation (1950), ‘we sit here to find out the intention of Parliament and of ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment by opening it up to destructive analysis’.

This attitude was criticised on appeal by the House of Lords. Lord Simmons called this approach ‘a naked usurpation of the legislative function under the thin disguise of interpretation’. He went on to say that ‘if a gap is disclosed, the remedy lies in an amending Act’.

These comments highlight one issue with the purposive approach. How Parliament's intentions can be determined and whether judges should really be refusing to follow the clear words of Parliament. The purposive approach is one used by most continental European countries when interpreting their own legislation. It is also the approach which is taken by the European Court of Justice in interpreting EU law.

Since the United Kingdom became a member of the European Economic Community in 1973, the influence of the European preference for the purposive approach has affected the English courts in a number of ways. First, the courts have been required to accept that, from 1973, the purposive approach has to be used when deciding on EU matters. Second, as they use the purposive approach for EU law they are becoming accustomed to using it and more likely to use it to interpret domestic law. One example is Pickstone v Freemans plc (1998). Here, women warehouse operatives were paid the same as male warehouse operatives. However, Miss Pickstone claimed that the work of the warehouse operatives was of equal value to that done by male warehouse checkers who were paid £1.22 per week more than they were. The employers argued that a woman warehouse operative was employed on like work to the male warehouse operatives, so she could not bring a claim under section 1(2) (c) of the 1970 statute for work of equal value. This was a literal interpretation of the 1970 statute. The House of Lords decided that the literal approach would have left the United Kingdom in breach of its treaty obligations to give effect to an EU directive. It therefore used the purposive approach and stated that Miss Pickstone was entitled to claim on the basis of work of equal value even though there was a male employee doing the same work as her.

When using one of the rules of statutory interpretation the courts may rely on a presumption or secondary aids to assist them in making their decision.

Presumptions

When determining the meaning of particular words the courts will make certain presumptions about the law. If the statute clearly states the opposite, then a presumption will not apply and it is said that the presumption is rebutted. The main presumptions are:

1. A presumption against change in the common law.

   It is assumed that the common law will apply unless Parliament has made it plain in the Act that the common law has been altered.

2. A presumption that mens rea (‘guilty mind’) is required in criminal cases.

   Mens rea is one of the elements that has to be proved for a successful criminal prosecution. There is a common law rule that no one can be convicted of a crime unless it is shown they had the required intention to commit it.

3. A presumption that the Crown is not bound by any statute unless the statute expressly says so.

4. A presumption that a statute does not apply retrospectively. No statute will apply to past happenings. Each statute will normally only apply from the date it comes into effect. This is, however, only a presumption and Parliament can choose to pass a statute with retrospective effect. This must, however, be expressly stated in the statutes, for example, the 1965 War Damage Act, the 1991 War Crimes Act and the 1976 Adoption Act.

The secondary aids are rules of language, intrinsic and extrinsic aids.

http://labspace.open.ac.uk/mod/resource/view.php?id=432676