Category Archives: EU law

Human Rights Act: Are these cases trivial?

It may be worth while looking at a few recent cases under the UK Human Rights Act 1998 – now under threat from the new Conservative Government. They aren’t leading cases but they raise the question of what counts as “trivial” in the mind of the Government (which wants to “Limit the use of Human Rights laws to the most serious cases. They will no longer apply in trivial cases”) and what principles the Government is seeking to abolish with the HRA. In particular why they wish to abolish the principle that:

“Everyone whose rights and freedoms as set forth in [The European Convention on Human Rights] are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” (ECHR Art 13)

For that is what abolition of the HRA means: that individuals will receive only those human rights Parliament (in effect the Government) says they should receive; and legal barriers will be put in their way of those seeking human rights justice against the State and its offshoots. Section 6(1) of the Human Rights Act makes it illegal for a public authority, which includes a court, to act in a way which is incompatible with Convention rights. That will no longer necessarily be the case.

It is very probable that the Conservative Government intends to largely remove the notion of damages from human rights. They want to restrict cases to criminal law, the right to property and an individual’s freedom and have other – trivial – cases struck out. If the breach can be put right, OK (by the release of an unlawfully held prisoner for example); but whether or not it can be put right, a stop will be put to human rights payouts – and the right to a fair hearing before a court or tribunal, relied upon in some of these cases. This is certainly the tenor of MP Charlie Elphicke’s UK Bill of Rights, the probable basis for the official Conservative version. And it is certainly the implication of the notion that “trivial” human rights issues should not be actionable. There will be whole areas in which breaches of human rights can occur without any comeback, be they “trivial”, too late to put right or breaches against people who don’t “deserve” human rights – whoever or whatever can be excluded.

Also missing from our law with abolition of the Human Rights Act will be the Statement of Compatibility. Section 19(1) says “A Minister of the Crown in charge of a Bill in either House of Parliament must, before Second Reading of the Bill—(a) make a statement to the effect that in his view the provisions of the Bill are compatible with the Convention rights (“a statement of compatibility”); or make a statement to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill.”

Here’s the first case:

Crook v Chief Constable of Essex police  [2015] All ER (D) 65 (Apr) 
An allegation of rape had been made against the claimant who was in Dubai and could not be traced for questioning. In August 2010, the police included the claimant’s details in a press release of “The Ten Most Wanted Suspects” with a photograph and personal details including his last known address. The information was published in the press and on the internet. His brother saw it and informed Crook who contacted the police. After arrest and questioning when he returned home the rape case was dropped. He took a case under  breach of confidence (regarding use of the photo), breaches of the Data Protection Act 1998 and breach of Article 8 of the European Convention on Human Rights (privacy and family life). The issue was whether release of the information had been reasonably necessary and proportionate in all the circumstances of the case. The judges in the High Court said no. “The decision to include all of the information in the press release had not been dictated by a pressing need, or proper careful consideration of the relevant principles.” The claimant was awarded nearly £70,000 in damages (including for lost earnings) and a declaration that his rights had been infringed under the Human Rights Act.

Comment: This will be a difficult case for those on the Right who would abolish the HRA. On the one hand they don’t like the idea of the compensation culture and police paying over money when they are just doing their job; on the other they may favour anonymity for rape-accused. They would agree, presumably, that this was an egregious example of such exposure against an innocent man. Should he have had no access to the courts to remedy it? Should he be denied a remedy against the state, as guaranteed by the ECHR and the Human Rights Act? 

Re DE (a Child) [2014] All ER (D) 72 (Jun)
This is a family case involving a small child with a mother diagnosed on the borderline of a mild learning disability and a father with a more significant cognitive impairment and an IQ of around 50. The parents were looking after the child with the help of the local authority, which had included a successful 16-week residential foster placement for the parents and child. They had moved to a new home with a package of support from the local authority and other agencies and under a care order. After 18 months a social worker had become concerned about aspects of the boy’s care. The local authority sought to remove the child and the parents took legal action to prevent it by injunction using Section 8(1) of the Human Rights Act:

In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.” 

They also cited Article 8 of the ECHR on family life. At first instance their case (in effect a procedural matter regarding injunction) was rejected but the Family Court allowed the appeal, granting the injunction pending a full hearing.

Comment: Again an awkward one for the anti-HRA Right – but interfering social workers tend to come high in their demonology. Do they want to repeal an act that addresses their bug bear, that allows a court to grant “relief or remedy” when social workers get it wrong? This was not just a case of potential breach of Art 8 family rights but of the right to be heard in a legal forum. Apparently to be abolished. 

Benkharbouche v Embassy of the Republic of Sudan [2015] All ER (D) 51 (Feb)
This is a case that gained a little press coverage. Two domestic staff in the Libyan and Sudanese embassies in London brought claims for unfair dismissal and breach of the EU Working Time Directive. Their claim had been challenged under the State Immunity Act Section 1(1): “A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act”. However, the court was asked to read that provision in the light of Section 3(1) of The Human Rights Act, which says:

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”  

The two women said their treatment breached Article 6 of the ECHR: “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. Section 4 of the State Immunity Act says immunity does not apply to contracts of employment for work within the UK – unless the workers are foreign, which the claimants were. This was seen as a breach of Art 6 and also Art 14 of the ECHR which says:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status” 

The Court of Appeal decided there was no reason in international law for the SIA’s s.4(2)(b) and s.16(1)(a) (immunity regarding employment claims) to apply. The two sections “cannot be read down and given effect in a way which is compatible with ECHR pursuant to the interpretative obligation imposed by section 3(1) HRA”  – in other words the SIA sections could not be interpretively “tweaked” to allow the women their rights. They were simply in breach of the ECHR, and the judges made a a declaration of incompatibility accordingly – which section 4(2) of the HRA allows them to do. Since the women did have rights under EU law to pursue their claims, the court could disapply the SIA sections “to the extent necessary to enable employment claims (other than for recruitment, renewal or reinstatement) which fell within the scope of EU law by members of the service staff, whose work did not relate to the sovereign functions of the mission staff, to proceed”.

Comment: This is the sort of case that is anathema to the anti-HRA campaign. It brings in international law and EU law as well as the possibility of using the HRA s.3(1) to reinterpret provisions in legislation passed by Parliament. It allows declarations of incompatibility of UK law with the ECHR – and, apparently, the ability of judges to disapply the law. This is not quite striking down legislation duly passed by a sovereign Parliament elected in a democratic contest – but to those with an unsophisticated conception of parliamentary sovereignty it looks very like it. On the plus side two very ordinary women – a cook at the Sudanese embassy and a nanny at the Libyan embassy – are able to take on the might of Libya and Sudan in the British courts in a case including allegations of unlawfully low pay, unlawfully long hours, discrimination and harassment. Others with a good case can now follow suit. Rights have been asserted where Parliament has feared to tread. Abolition of the Human Rights Act would curtail such possibilities. 

The version of the case is here   

Interflora Inc v Marks and Spencer plc [2015] All ER (D) 247 (Feb)
The two companies mired in legal action over copyright issues needed to establish whether M&S should be banned before a trial of the issues from using a flower selling advert with internet link on Google allegedly infringing Interflora’s “national and Community registered trade marks for the word ‘interflora'”. The case “involved a careful consideration and balancing of various Convention rights, including Interflora’s right to property [Art 1 Protocol 1 ECHR] and the right to freedom of expression [for M&S’s advertisement] under Art 10 of the Convention”. Thus the judges had to consider HRA s.12 which “applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression [ECHR Art 10]”. “Relief” here means an interim injunction requiring M&S to take down the advert with its link.

The High Court found that “What M&S wished to do was publish an advertisement and, to that extent, the injunction could engage its freedom of speech rights.” Since the substantive case was a finely balanced one (ie it was difficult to know who would win) it would be wrong to favour Interflora by banning the M&S advertisement.

Comment: This case shows that the Human Rights Act is not just for little people in their battles against state authority. It’s for corporate giants battling against one another too. It also points to the fact that the HRA is not simply a recital of ECHR right plus a requirement for courts to apply them in their judgments. There is a swath of other material, procedural matters for instance, regarding how rights are to be extended to claimants. Relevant in this case for example was s.12(4) which says “No such [injunctive etc] relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.” How far is the Government willing to waste parliamentary time wiping out this legal background and rebuilding a new human rights regime just for the sake of asserting parliamentary sovereignty – that no rights should exist except those granted by Parliament?

The latest iteration of this continuing legal action is on Bailii here

Re H (A Child: Breach of Convention Rights: Damages) [2014] EWHC 3563 (Fam)
Finally a case about damages in the light of the Conservatives’ intention to reserve human rights law only for serious breaches. What is serious? What trivial? Leicester Council sought a care order in the case of H, a baby. Ultimately a supervision order was agreed. The parents used Section 7(1) of the Human Rights Act allowing “A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) [see above]” to “bring proceedings against the authority under this Act in the appropriate court or tribunal”, relying on a Convention article. They sought Section 8 damages regarding the way the local authority dealt with this case before proceedings were issued. The council accepted a breach of their rights under Article 6 (fair hearing) and Article 8 (family life). The issue then was compensation – which the council did not accept the parents should have.

There was an argument that the Family Court had no power to order compensation (unlike the County Court where family matters were dealt with before April 2014) and that the parents should have brought a separate civil claim (with consequent time and expense involved). Judge Bellamy rejected both contentions and declared that “the requirement that Convention issues raised within ongoing care proceedings should be dealt with within those proceedings includes the right to seek relief (including damages) within those proceedings”. Furthermore: “it is in my judgment … that where the court in care proceedings finds that there has been a breach of a Convention right it has the power to make an award of damages under s.8 of the Human Rights Act 1998”.

Rule 29.5 of the Family Procedure Rules 2010 on Section 8 claims did not “prescribe any particular formality save that the party making the claim must inform the court”. So the judge was able to cut to the chase and award damages of £6,000 to each parent with a declaration that their human rights had been breached.

Comment: This is exactly the sort of case that those against the HRA would do away with. It is “trivial” in that the sum of damages is small (ECHR damages are never large) and the wrong done to the parents cannot be undone. Nor would proponents of abolition see any practical value in a declaration of breach. 

But if there is no human rights claim, what is left when a wrong has been done, as here? If there is no right to claim, no jurisdiction, why would authorities need to accept responsibility for their failings? Removal of the Human Rights Act potentially gives carte blanche for state authorities to ride roughshod over the rights and dignities of individuals and to refuse to acknowledge their responsibilities towards people.

The concept of damages for human rights breaches, as shown in Re H (A child) is quite different from the usual Common Law tort damages. The case quotes Lord Chief Justice, Lord Woolf who said in Anufrijeva v London Borough of Southwark [2003] EWCA Civ 1406: “the award must be necessary to achieve ‘just satisfaction’; language that is distinct from the approach at common law where a claimant is invariably entitled, so far as money can achieve this, to be restored in the position he would have been in if he had not suffered the injury of which complaint is made.”  In other words human rights damages are a less formal sort of damages, a recognition that a wrong has been done rather than strictly putting it right. They may also be available where tort damages are not.

The HRA also, as in Benkharbouche, acts as a doorway to more formal rights in damages – here the two women were denied the right to sue in law because they were not British nationals. Without the HRA they could not have pursued substantive rights to seek compensation.

The Bailii publication of Re H (A child) is here

So to what extent are are human rights trivial? Here’s a quotation from Eleanor Roosevelt that makes the point: 

“Where, after all, do universal human rights begin? In small places, close to home – so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person; the neighbourhood he lives in; the school or college he attends; the factory, farm or office where he works. Such are the places where every man, woman and child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere. Without concerned citizen action to uphold them close to home, we shall look in vain for progress in the larger world.” Eleanor Roosevelt, “In Our Hands” (1958 speech delivered on the tenth anniversary of the Universal Declaration of Human Rights) 


Note: Since publication of this post the case of a rape victim who used the Human Rights Act to gain compensation for failure by the police to investigate properly has been publishd. This would not happen under any other legislation or English Common law, as explained by Rosalind English here

Of further interest
A draft Conservative Bill of Rights: State v the people
For Tory thinking on HRA abolition: Suddenly they’re all relativists now
A parliamentary briefing on human rights and a British Bill of Rights is available here


Could the same judgments outlined above have been arrived at without the Human Rights Act and the European Convention?
Crook: Possibly on the use of the photograph under Common Law breach of confidence (which has now been developed by ECHR considerations as explained here) and data protection but not on the wider privacy issue. In particular the ECHR concept of “proportionality” is wider than the English Common Law doctrine of “reasonableness”. The latter can allow breaches of rights where “proportionality” would not.
Re DE (a Child) Probably not. Consideration in the past in such cases would have been limited to “best interests” of the child usually as defined by the authority involved. This too would have been judged on the basis of “reasonableness”, in effect allowing a greater deference to authority.
Benkharbouche v Embassy of the Republic of Sudan Pretty certainly not. The law would have been read literally and excluded the women with no consideration of the inherent discrimination involved in the legislation.
Interflora Inc v Marks and Spencer Possibly, yes. The main issue was to do with principles of injunction as set out in American Cyanamid v Ethicon Ltd, considerations regarding whether, if M&S continued with the advert, any losses to Interflora could be compensated if it won the substantive case. Freedom of speech issues might have tipped the balance.
Re H (A Child) Clearly not, as explained above

How the cases were chosen
The choice was relatively arbitrary based on a legal website search for “Human Rights Act 2015 2014”. Only winning cases were chosen, criminal cases and immigration cases excluded plus any that have received publicity elsewhere particularly in this blog or Al’s Law including:
BB & Others v Secretary of State for the Home Department
AA v London Borough of Southwark
Breyer Group plc & Others v DECC
Weller v Associated Newspapers    

Conservative proposals
“The use of the new law will be limited to cases that involve criminal law and the liberty of an individual, the right to property and similar serious matters. There will be a threshold below which Convention rights will not be engaged, ensuring UK courts strike out trivial cases.” Conservatives: Protecting human rights












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Neuberger, Charles’s black spider memos – and the coming constitutional crisis

Judges in Britain are not supposed to strike down primary legislation that has passed through a sovereign Parliament. Yet that, on the face of it, is what seems to have happened in the UK Supreme Court’s judgment on Prince Charles’s “black spider memos”. And it is deeply paradoxical that it is Lord Neuberger, President of the Supreme Court, who has committed this apparently unconstitutional act, striking at a core “democratic” principle – that Members of Parliament (albeit a chunk of them unelected) pass laws, not judges.

For Neuberger has in the past expressed fears about the UK Supreme Court becoming a “constitutional court” with a dangerous potential for defying Parliament. In a 2009 BBC interview when he was Master of the Rolls (having refused to continue his role as a House of Lords judge into the new Supreme Court) he talked of the danger of “mucking around” with the British Constitution saying there was a risk  “of judges arrogating to themselves greater powers than they have at the moment”.   Continue reading

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PLT Anti-Marketing cold-call blocking: not a ‘scam’ after all?

An attempt to close down a company accused by the UK Government of a cold-call blocking “scam” has hit something of a stalemate in the Court of Appeal. PLT Anti-Marketing Ltd charges £40 a year for a cold-calling and junk mail blocking service already available free from official providers. The court has quashed a judge’s finding that PLT breached regulations and Lord Justice Briggs has produced strong arguments in favour of the company despite an attempt by the Department of Business (BIS) to close it down.

Nevertheless PLT remains barred from pursuing its business as it wishes until a full trial – when judgment could turn against it. The litigation has so far been going on for more than a year and a half – during which time PLT has been able to continue charging current customers but not to take on new ones without telling them about the free service. The whole affair raises the issue of whether current legislation is adequate for dealing with alleged consumer scams of this sort.

The free cold-calling and direct mail blocking services are available from Telephone Preference Service (TPS – provided by Ofcom; see: Regulation 26 of the Electronic Communications (EC Directive) Regulations 2003) and the Mail Preference Service (MPS – offered by the Direct Marketing Association in co-operation with the Post Office). PLT takes the names of its paying customers and adds them to the free lists. It maintains a service for its customers to complain about any continued unwanted calls and mail, but that also links into the free official services. Customers continue to pay on a monthly or annual basis. 

The Department of Business (BIS) started investigating PLT in 2012. In April 2013 it issued a “public interest winding up petition” under Companies Act 1985 S.124A – and the matter has been bogged down in court hearings ever since.

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What are the perceived problems with the European Arrest Warrant?

The EAW is one of those strange areas in which Conservatives and others on the Eurosceptic right are deeply concerned about human rights issues. Enfield North MP Nick de Bois, for example, has summed up the EAW issue by saying “cooperation and expediency must not take precedence at the expense of fundamental judicial fairness, fairness and human rights”. Nick de Bois MP pdf)

Gerard Batten, UKIP MEP calls the EAW “a tick-box defendant transfer form-filling exercise that neuters the discretion any national judge may have had over extradition to European Union countries”.

So what exactly are the perceived problems with the European Arrest Warrant? The issues that come up again and again are:  Continue reading

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Magna Carta – is it such a great charter?

The British Prime Minister, David Cameron, has declared children must learn about Magna Carta, the 13th century deal between England’s barons and King John, which he considers “the foundation of all our laws and principles”. He knows this because he has read it in a 1905 children’s book of history, Our Island Story.

   In reality Magna Carta has little to offer the modern reader – not least because most of it has been repealed or else was suppressed almost as soon as it was issued. Here is what is left of it. So is there any point in studying it? Perhaps, but not for the Union Jack waving reasons that Cameron wants it taught – and certainly not because it demands “other people [than the king] should have rights” as he believes. Indeed, it was an attempt to protect the privileges of an elite, not the rights of “the people”.

   The background to Magna Carta was the various foolish wars prosecuted by the English kings – Richard the Lionheart’s Crusade in the Middle East against Islamic forces seeking to dismiss the Christian westerners from their tottering Levantine holdings and King John’s attempt to assert his rights over France. None of this came cheaply, so the issue underlying Magna Carta was: could taxes be levied by the king without the consent of “the people”?

   In the 12th and 13th centuries, of course, “the people” was the barons and clergy and a small number of freemen, and when the barons revolted against King John (who succeeded his brother Richard to the throne in 1199) they were revolting against both the excessive taxations, required as a result of John’s French war, and the centralised power of the state, the absolutism that had trampled over their feudal rights – the rights they had in the lands they held as fiefs of the king.

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Edmondson et al: News International hacking judgment and GCHQ scandal

Note: Since publication of this post Privacy International has announced a legal challenge against the GCHQ programme based on European Court of Human Rights proportionality principles.

The first legal skirmish in the Rebekah Brooks/Andrew Coulson phone hacking saga has produced a Court of Appeal judgment with wider ramifications – which could spread into the burgeoning bugging scandal surrounding Britain’s “spy-station” GCHQ.

The phone hacking case need not detain us too long. Edmondson et al v Regina was brought by various top former News International personnel facing conspiracy charges regarding alleged phone hacking, among them Brooks and Coulson. Their contention was that the offence they are accused of, conspiring to intercept other people’s mobile phone voicemail messages, should be dismissed because the alleged hacking was not actually unlawful under the Regulation of Investigatory Powers Act 2000.

This is why the case is relevant to GCHQ and the revelations by Edward Snowden of alleged trawling and storing of private communications: Section 1(1) of RIPA says: “It shall be an offence for a person intentionally and without lawful authority to intercept, at any place in the United Kingdom, any communication in the course of its transmission by means of – 
(a) a public postal service; or
 (b) a public telecommunication system.” (Emphasis added.)

The Edmondson defendants claimed no one could be alleged to have “intercepted” messages that had already arrived at the voicemail inbox and been opened for reading by the recipients since they were no longer “in transmission”. They cited S.2(7) of RIPA which says:

For the purposes of this section the times while a communication is being transmitted by means of a telecommunication system shall be taken to include any time when the system by means of which the communication is being, or has been, transmitted is used for storing it in a manner that enables the intended recipient to collect it or otherwise to have access to it.”

The defendants argued that once it had been “accessed” (listened to in the case of a phone message or, presumably, opened if it is a text or email) it is no longer “in the course of its transmission”.

The judges, headed by the Lord Chief Justice Lord Judge, rejected this argument. “Interception” included interception of messages saved on the voicemail facility. The judgment notes:

In this regard it is significant that the intended recipient cannot gain access to the voicemail message without resort to the telecommunication system, but is totally dependent on the system. In these circumstances, there is no good reason why the first receipt of the communication should be considered as bringing the transmission to an end nor is there any support for this within the statutory language. We consider that it is readily apparent from the plain words that it was the intention of Parliament that section 2(7) should extend the course of transmission to include this situation.”

So the appeal was dismissed and the substantive case against the defendants proceeded. Ultimately Coulson was found guilty of conspiring to hack phones while Brooks was acquited (Guardian report).

Issues for GCHQ
The wider implications, however, are that the court has clarified that, no matter where in the process a phone message is captured, it will have been intercepted somewhere in the transmission system and hence potentially unlawfully.

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Bingham’s rule of law: outdated, utopian – and desperately needed now

How useful is Tom Bingham’s view of the rule of law? Through his lectures and book on the subject the former law lord unseated AV Dicey as the go-to guy of the Rule of Law. But what did he bring to it that makes us prefer his view to that of the formalistic and somewhat stuffy old Victorian predecessor?

Dicey’s formula can be summed up thus:

“a. No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the courts of the land;
b. No man is above the law; whatever his rank or condition is, he is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals;
c. It is because England has a constitution that the personal rights and liberties of individuals are always secure. This security comes from being able to go to the law courts to remedy any breach of these rights and liberties.”

Certainly the idea has gained many accretions since Dicey – possibly even been “reduced to incoherence” according to one commentator: “It would not be difficult to show that the phrase ‘the Rule of Law’ has become meaningless thanks to ideological abuse and general over-use”, (Judith Shklar, Political Thought and Political Thinkers, chap 2).

For the purposes of this piece we are talking in particular of Shklar’s Montesquieu version of the rule of law: “Those institutional restraints that prevent governmental agents from oppressing the rest of society”.

The concept has gathered various provisions, thanks to Bingham and others, any or all of which are devoutly to be wished but which don’t necessarily have the real constitutional weight of a “limited number of protective arrangements … meant to benefit every member of society” (Shklar again).

Lord Bingham, in the 2006 Sir David Williams Lecture, starts here: “All persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts”. But he adds to this a set of sub-rules without which he thinks the rule of law cannot (or does not) exist. None of these in fact constitute constitutional principles, nor have they ever done so.

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