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Judges - the Rule of Law
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The Rule of Law

"A judge should value independence above gold, not for his or her own benefit, but because it is of the essence of the rule of law."

Lord Chief Justice Phillips, 2007

 

It is universally agreed amongst democratic states that the rule of law is a vital element in a free democracy. The UK (along with only New Zealand and Israel) does not have a written constitution and so such a principle is not enshrined in the constitution, but it is jealously guarded by the courts.  The effect of the Constitutional Reform Act 2005 is to enshrine this principle in legislation for the first time.

 

The effect of the Human Rights Act has gone some way to ensure some basic rights cannot be removed by the state and are actionable in the courts. 

 

The conflict between the courts and Parliament create a tension in this respect.  This is largely resolved by the courts enforcing the will of Parliament, but retaining the right to review activities of the executive by way of judicial review.  For example, the government (the executive) claims to act using prerogative powers, of which little is known, or indeed whether they exist, only the courts are in a position to challenge this claimed authority of the executive.

 

This bedrock of a democratic free society forms the basis of both Distributive Justice and Corrective Justice and as part of the system of formal justice, which some writers call procedural justice, ensures the English Legal System is a fair system.  Whichever, analysis is being used it means the Rule of Law, and this includes Natural Justice. 

 

What is the Rule of Law? 

The Rule of Law and Natural Justice require that everyone be subject to the same law, that the law should do justice by not punishing those whose actions are innocent or justified. That there must be certainty in the law, so that all can regulate their affairs accordingly.  There must be access to independent tribunals and a system of appeals, and a means of preventing arbitrary law-making particularly by officials and inferior courts. 

 

The English Legal System attempts to meet these requirements and is largely successful.  There are however, concerns regarding access to justice and the implications of Access to Justice Act 1999.  The Community legal Advice ensures legal advice and representation, but legal aid does not cover all types of case, and people with even modest incomes may not be eligible.  Darling J is supposed to have said, "The law, like the tavern, is open to all", but it may be more correct to say,  as did Lord Justice Matthew almost a century ago, “In England justice is open to all, like the Ritz”.

 

Everyone is subject to the law

However, if the Government does not like the result it can usually reverse it by legislation.         

There are many examples of the government, through Parliament enforcing its will when the courts have ruled against them.  These include,

Burmah Oil v Lord Advocate [1964] HL parliament passed the War Damage Act 1965 enacted to prevent others obtaining compensation.

In Congreve v Home Office [1976] CA the Home Secretary tried to prevent purchase of TV licences to beat the rise in cost of the licences. 

After Council of Civil Service Unions v Minister for the Civil Service [1984] HL the government banned trade union membership at a listening station.  

Despite a court injunction the Home Office deported M, claiming a misunderstanding, M v Home Office [1993] HL

In R v Home Secretary ex p Fire Brigades Union [1995] HL the Criminal Injuries Compensation Scheme was altered using Royal Prerogative instead of pending statutory power, and was ruled unlawful by the court. 

 

A just legal system has rules, and principles that are understood by those applying them.  There is machinery for applying the rules.  The rules apply to all persons, no-one should be above the law, and all people should be treated equally. As Lord Denning said, "Be you ever so high, the law is above you."  (Gouriet v Union of Post Office Workers and Others [1977] CA)

 

The law should be applied without fear or favour, malice of ill will, or prejudice, bias or fear from others, particularly the powerful. This means there must be an independent and impartial judiciary.

 

Equality before the law

Formal justice requires that like should be treated as like, in other words everyone should be treated the same irrespective of wealth or position, gender, colour or race.  Not only should they be treated the same by the police but sentences should be the similar for similar crimes.  The Criminal Justice Act 1991 described this concept as "Just deserts".   There are of course exceptions, and these can sometimes be seen in the wishes of Parliament, which provides defences.

 

Equality and justice, however, are not identical if equality is used only to mean that all people are to be treated alike for this fails to take account of differences in character, upbringing, status, education and so on.  Discrimination on the grounds of age, sex, and colour and so on should not be tolerated but recognition of human differences must be retained if justice, in its widest sense of fairness, is to be achieved. Some consider that in the interests of justice some individuals or groups should benefit from positive discrimination so as to even out the disadvantages experienced by such individuals or groups in the past. Others would see this as unfair and that promotion or preferment should be achieved only on merit. 

Given that individuals or groups may discriminate against others in subtle as well as overt ways the law has had to develop the notion of direct and indirect discrimination in an attempt to change attitudes and ensure fairer treatment of those who would otherwise stand little chance of success in employment, education, housing or other social activities.

 

English law has taken an incremental approach to discrimination, outlawing discrimination on the grounds of sex and race, disability and now, sexual orientation. The law does not present a consistent approach and one area of discrimination may not be matched in another, for example, the Race Relations Act 1976 is not matched by similar religious discrimination: discrimination on the grounds of religion in the workplace is however, covered by the Employment Equality (Religion or Belief) Regulations 2003.  This presents problems in a modern pluralistic society. The legal profession and system is itself accused of discriminating against women and minority ethnic groups with the result that much talent is lost to the legal profession and judiciary. Awareness within the profession and judiciary has increased and conscious efforts are being made to improve accessibility.

 

Writing in industry publication New Law Journal, leading legal figures including Michael Mansfield, QC, writing in the New Law Journal in July 2007, attacked the Labour Government over a series of issues including the independence of the judiciary, intervention in the legal system and failure to uphold the rule of law.

Mr Mansfield one of Britain’s top criminal barristers said,

“This is my fortieth year of practice at the criminal Bar and, in my view, the greatest damage to the reputation, quality and integrity of the English system has been inflicted by a Labour Government first elected in 1997.

“I am certain that when the legal welfare system was envisaged in the post-war years of an earlier Labour Government, nothing of this kind could have been contemplated. The kernel of the attack has been an utter disregard for the rule of law, due process and a fundamental lack of respect for the independence of the judiciary.”

 

Defences

It is the case that the same actus reus, with the same consequences can have liability extinguished or reduced by statute law; for example, killing when labouring under diminished responsibility, immunity from prosecution if under 10, or causing damage to protect ones own property.  The common law has adopted this idea for hundreds of years, by doing justice with defences that justify or excuse, and result in complete acquittal, such as the use of force in self-defence, insanity or automatism the making of a mistake as to fact.

 

Other partial defences such as provocation are intended to do justice, so that those who kill while not fully responsible for their actions are not convicted of murder.  In provocation, the characteristics of the defendant are relevant; therefore, not all people are treated alike.

 

Standards of care do not always appear to equal

A learner driver doing her best can be contrasted with a surgeon who has to fall significantly below the standard expected.

Nettleship v Weston [1971] CA a learner driver doing her incompetent best, is expected to reach the standard of a competent driver.

Snelling v Whitehead (1975) HL 7 year old boy caused accident, but the driver is not found to be negligent.

Whitehouse v Jordan [1981] HL a doctor causes brain damage to baby but is not held negligent.

 

The law will not allow some defences in some cases because it is thought that justice would not be served, so, the defences of necessity and duress are not available in cases of murder or attempted murder.

R v Dudley & Stephens (1884) CCR shipwrecked sailors ate a cabin boy in order to survive.

R v Howe [1987] HL the defendants were involved in murders but were not the actual killer.

Southwark BC v Williams [1971] CA Lord Denning would not extend the defence of necessity for a homeless family that squatted.

 

Certainty

In any discussion of justice, two concepts are of particular importance namely certainty and equality.

Law needs to be certain in its scope and effect if people are to know how to order their affairs and to accord the law respect. However, the advantage of certainty must not over-emphasise particularly with regard to substantive justice where a patently unjust law, no matter how certain in its terms or effect, will remain one which offends again principles of morality or notions of a ‘higher’ law.

 

Certainty can also easily slide into rigidity with the effect that the law and legal system will fail to meet changing social needs. This was a major criticism of the common law and one, which Equity attempted to remedy. Once Equity itself applied the doctrine of precedent, it too became rigid and less able to adapt to meet changing needs. A balance has to be found between, on the one hand certainty and, on the other, flexibility. Another aspect of certainty is that the takes prospective effect rather than a retrospective effect. If law applies to the future those affected will be able to arrange their affairs in such a way as to conform to the law.  If the law has retrospective effect, actions they perform which were legal when performed become illegal later.  This is seen as unjust, unless there are special circumstances that necessitate a law having retrospective effect, for example the War Crimes Act 1991 and the Northern Ireland Act 1972.

There is also a presumption in legislation that law does not have extra-territorial effect; in a modern society, this is not considered just, as those who offend abroad and return to the UK are seen to have escaped justice. There are many examples of modern law, “plugging the gap”.

The law must be certain and available to all, no laws must be made in secret (it is alleged that there are only three places where laws are made in private; Cuba, North Korea, and the European Union).  Hence, all Acts of Parliament and Statutory Instruments and Local Bye-laws must be published.  The law is usually framed in such a way that it only proscribes (prohibits) activity, so if activities are not proscribed then they can be engaged in quite lawfully.

 

Precedent

In order to provide certainty in the law judges are bound by precedent and consistent rules of evidence and procedure and principles. Their decisions must be reasoned so it possible to understand the law.

 

Impartial judiciary

The independence and impartiality of the judiciary is essential and the main way in which the citizen is protected from dictatorial government. However, this says nothing of the substance of the rules, which are to be administered and applied. They may be considered to be unjust, wrong or immoral.

 

The positivist looks to the process by which law is made. If this has been complied with, no matter the content of the rules, they are to be obeyed and applied. The natural lawyer will question the content or substance of the law and, in extreme situations may be willing to question the authority of the legal system itself, and if this is found wanting will either conclude that it is not law at all or that the citizen is not morally obliged to obey it.

 

For example Albert Venn Dicey (English academic born 1835) writing in 1885, claimed the law at that time operated a formal equality at the expense of a substantive quality.  The law was blind to the differences of wealth or power and assumed all possessed abstract rights and duties.  Whereas, FA von Hayek (Austrian economist born 1899) thought the law should apply to all and benefit none in particular. Hayek regretted the role of the law (in 1944) to be what he saw as supporting an interventionist state replacing a free-market economy.   The law provided a legal framework for a particular form of economic activity.

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