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‘UK Courts have adopted a more substantive approach to the rule of law in recent years.’ Describe and analyse the approach of the courts to the rule of law with reference to relevant case law. 1. What is the difference between a formal approach to the rule of law and a substantive approach? This is explained in the Craig article, and Elliott and Thomas, as well as being the focus of lecture 3. As the name suggests, a formal approach emphasises ‘formal’ qualities. These range from the process(es) underpinning the making of the law, eg a valid legislative process, through to the character of the law itself (is it clear, is it prospective, is it sufficiently certain to guide action?). Sometimes ‘formal’ is conflated with ‘procedural’. A substantive conception, by contrast, is concerned not just with process and other formal qualities but the substantive content of the law in terms being compatible with (liberal?) values (liberties, rights). One way of looking at the distinction is in terms of a spectrum, from bare legal, to formal to substantive legality (the textbook supports this). (NB the quote at the head of question 2 of the formative assessment appears to be supporting a substantive conception of rule of law, insofar as it refers not only to bare legality and ‘due process’ but ‘liberties’.) 2. Outline different academic approaches to the rule of law (such as Dicey, Raz, TRS Allan and Ronald Dworkin). Raz and Dworkin are associated with different sides of the formal/substantive divide. Dworkin considered that rule of la w would be lacking as a constitutional principle were it not to support human rights. Raz considered that rights were better left to politics. Rule of la w cannot do its vital constitutional job if people dispute its content. For Raz, less is more. Craig seems to prefer Raz. Britain’s TRS Allan leans towards Dworkin. 3. What are the three meanings given to rule of law in Dicey’s Introduction to the Study of the Law of the Constitution? No punishment without law/absence of arbitrary authority

This illustrated by almost every judicial review case in which the legality (or rationality) of governmental authority is tested before a court. The grounds for judicial revie w of illegality and

irrationality are aimed ensuring that government action is legal and rational, as opposed to arbitrary. In more narrow terms of ‘no punishment without law’ the obvious cases are Entick v Carrington and more recently Rimmington [see slides for lecture 4]. You might also mention Maloney v DPP (as case concerned with the legality of phone tapping rather than punishment). Equality before the law This is illustrated by the case of M v Home Office. Kenneth Baker argued that he did not have to obey an order of the High Court to reverse his decision to deport an asylum seeker. As a Minister of the Crown he complied with the law at his ‘grace and favour’ (i.e. discretion). The House of Lords held that a Minister of the Cro wn as subject to the law as everyone else. To ignore a court order exposed them to the crime of contempt of court. Rights protected by common law. This is illustrated by a line of recent cases beginning largely with Pierson, in which Lord Steyn stated that Dicey’s third meaning was ‘substantive’, and included freedom from retrospective criminal punishment. The line of cases continues with ex parte Sims, Daly, A (Torture), Unison, Privacy International. Also, Entick v Carrington concerned personal liberty and rights to property. These are outlined further below. However, it also has deeper roots still, notably in the case of Dr Bonham. Here Lord Chief

Justice Coke opined that an Act of Parliament taking away liberty (permitting a medical college to imprison unlicensed practitioners) was arguably repugnant to common reason and would not be recognised as legal; the common law controlled statute, in Coke’s words. Dicey wrote in similar terms to Coke in Bonham that common law rights could not be taken away without a thorough revolution. The textbooks do not elaborate on this, but it follows from his observation that rights are not the consequence but the source of the UK constitution. 4. Outline some of the main cases relevant to the discussion of the rule of law and consider formal/substantive dimension. Pierson. Common law right to freedom from retrospective criminal punishment.

Simms. Common law right to freedom of expression in the context of a prisoner seeking to articulate innocence through a journalist. Daly. Common law right to privacy in the context of legal correspondence.

A (Torture) (2004). Common law has prohibited torture for centuries, and it will intervene to prevent use of evidence obtained under the threat of torture. Such evidence must ordinarily be unreliable, and contrary to common law natural justice (i.e. a common law fair hearing). Jackson v AG (obiter remarks of Lords Steyn and Hope and Lady Hale, suggesting that parliamentary supremacy is qualified by common law rights. Elliott and Thomas are skeptical of this possibility, and students who have read the Neuberger article for SMG 1 might recall that common law strike out/disapplication of statute is ‘merely’ theoretical. But Hale, Steyn and Hope have formidable reputations. Arguably these dicta are deal with a theoretical problem

insofar as Parliament would not risk a confrontation with the courts (rather than the inevitability of Parliament winning any such confrontation). Unison. Civil justice cannot be run on commercial lines, without regard to the common law principle that justice cannot be bought and sold. At first instance and on appeal Unison had relied unsuccessfully on EU law and ECHR law. The introduction of a common law rights dimension was at the final level, and succeeded. Hain’s blog in further reading argues that this case is one of the best illustrations of a substantive conception of rule of law in the UK. Privacy International. Parliament cannot exclude judicial supervision of governmental decision making; the courts, not the legislature, decide whether government action is judicially reviewable. Some of the above common law rights cases described as illustrating a substantive conception (eg Unison) are concerned with access to justice/fair hearing. There is thus some doubt that they illustrate a ‘strictly’ substantive conception. Raz considered access to justice vital to a formal conception of rule of law. He also considers freedom from retrospective criminal punishment a formal issue (laws must be prospective so that people can use them to guide action). Thus probably the only squarely substantive rule of law cases are Dr Bonham (liberty), Entick (freedom of political expression, and property), Simms (freedom of expression) and Daly (privacy in the context of legal correspondence). Hypothetical example to test the meaning of rule of law in the UK Whilst Parliament can do anything legally according to the principle of Parliamentary supremacy (it can order the killing of all blue eyed babies according to Leslie Stephens), it does not do so because of political constraints. Yet consider a hypothetical Act of Parliament that discriminates against a particular ethnic minority in terms of personal liberty, freedom of expression, privacy etc because of societal prejudice finding expression in the Government of the day. The persecuted grouping is considered to be a super-spreader of disease justifying lengthy quarantine (an ethnically selective lockdown). There is little or no science behind the persecution, but it is popular with the majority of the public and the Government has a large enough majority to have secured the legislation despite opposition in Parliament.

oppressed because of a mistaken belief in spreading diseaseWould the Supreme Court uphold the legality of such an Act of Parliament in the face of challenge on grounds of common law rights?...