Tag Archives: Rule of Law

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

Judges in Britain are not supposed to overrule 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

Leave a comment

Filed under Analysis, Comment, Constitution, ECHR, EU law, European Convention on Human Rights, Human rights, Law, Legal, Media, Politics, Public law, UK Constitution, UK Law, UK Politics, Uncategorized

Repeal of the Human Rights Act – and a British Bill of Rights

Note: details of a potential “overhaul” of the Human Rights Act, clause by clause, appear below for those who prefer to get straight to the nitty gritty: “Conservative Rights and Obligations – point by point”

The 2022 Queen’s Speech has underlined the intention of the  Secretary of State for Justice, Dominic Raab, to “reform” the UK Human Rights Act with a new British “Bill of Rights” (consultation document here). 

It is likely that Raab will craft what he calls a distinctly British version of human rights that swings the legal regime subtly in favour of the executive and public bodies, albeit without seeking to withdraw from the broad obligations of the European Convention of Human Rights.

But whether the changes will be acceptable to the European Court of Human Rights is a moot point. If not, Raab will relish the fight, and will point outthat the court already accepts a “margin of appreciation” for the exercise of human rights in individual countries ie the idea that they might be affected by the history and constitutional outlooks of individual nations and hence are not homogenous across all signatories. 

Continue reading

16 Comments

Filed under Constitution, Criminal law, Equal-opportunities, Human rights, Law, Legal, Politics, Public law, UK Constitution, UK Law, UK Politics, Uncategorized

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.

Continue reading

7 Comments

Filed under Constitution, EU law, Human rights, Law, Legal, Politics, Public law, Social welfare, UK Constitution, UK Law, UK Politics, Welfare law