Law for lawmakers A JUSTICE guide to the law

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Contents

5 Welcome 25 Chapter 4: 45 Chapter 6: Public law and judicial review EU and International law 6 Foreword What is judicial review? The European Union What are the ‘grounds’ for judicial review? International law 7 Chapter 1: Who can bring a judicial review? Law for lawmakers What can the court do? 53 Chapter 7: Introduction Want to know more? , and Our constitution Where next for legal help? 31 Chapter 5: 15 Chapter 2: Rights and the individual 57 References The rule of law Introduction What is the rule of law? 61 Acknowledgments Common law rights Some key features of the rule of law The 19 Chapter 3: The European Convention on Human Rights Introduction to the law The Equality Act 2010 Primary and Secondary Legislation The common law The role of judges What about international law? 3

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About JUSTICE

Established in 1957 by a group of leading jurists, JUSTICE is an all-party law reform and human rights organisation working to strengthen the justice system – administrative, civil and criminal – in the United Kingdom. We are a membership organisation, composed largely of legal professionals, ranging from law students to the senior judiciary.

Our vision is of fair, accessible and efficient law and policy and to propose practical legal processes, in which the individual’s rights solutions to legal problems for law-makers, are protected, and which reflect the country’s judges and public servants. international reputation for upholding and An important part of this work is done with promoting the rule of law. To this end: decision makers in Westminster and Whitehall, • We carry out research and analysis to where we work to provide practical briefings generate, develop and evaluate ideas for on the law for officials, MPs and Peers, free law reform, drawing on the experience from party political influence and insights of our members. This guide is designed to provide a • We intervene in superior domestic and basic introduction. international courts, sharing our legal research, analysis and arguments to Key concepts and legal terms are promote strong and effective judgments. highlighted in ‘bold’. A brief plain English description follows. • We promote a better understanding of the Fuller information is provided in end notes. fair administration of justice among political decision-makers and public servants. Signposts on where to find further legal advice and support are provided in • We bring people together to discuss Chapter 7, with clickable links to further critical issues relating to the justice information and contacts. 59 Carter Lane system, and to provide a thoughtful legal We use the term ‘MPs’ throughout the London EC4V 5AQ framework to inform policy debate. guide as shorthand. We hope that this [email protected] A key goal is to provide evidence-based material will be useful to both MPs and analysis to inform the development of new Peers and to their staff. 020 7329 5100 5

Welcome

As the Chair and Vice-Chairs of JUSTICE – and Parliamentarians – we are pleased to open this new guide to the law for lawmakers. Originally conceived as a “pocket” guide for members of both houses and their staff, it is designed to provide a basic introduction to some of the core legal and constitutional principles with which we grapple on a daily basis at Westminster.

Since its inception, JUSTICE has worked hard particularly significant. This guide doesn’t to engage with all political parties on a non- provide answers to those questions but a partisan basis. Each of us represents a different basic glossary to help inform discussion and political tradition, but we work together debate. At its heart is a shared understanding through JUSTICE to raise the profile of legal – stepping beyond party politics – of the role problems with constitutional significance for which Parliament plays in both making the law our justice system and for the rule of law. work and ensuring respect for the rule of law JUSTICE works to create a useful bridge in practice. between politics and law, between public If you have any questions about the guide, or servants and the legal community. the legal impact of this Parliament’s work, In this Parliament, as we consider significant JUSTICE has a small but dedicated team of constitutional questions about the nature lawyers ready to provide further support and of our democracy and the foundation of assistance where they can. the United Kingdom, this work will be

Baroness Helena Kennedy of the Shaws QC Chair, JUSTICE Council

Lord David Hunt of Wirral Baroness Sarah Ludford Vice-Chair Vice-Chair

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Foreword Lord Hope of Craighead KT

Law is a complex subject. No short guide can possibly cover all of its intricacies and complexities. But there are some fundamental points that are quite easy to state and that, on the whole, can give travellers through this jungle all that needs to be known for them to keep their bearings and find the right way forward wherever they want to go.

We all depend on the rule of law for the That, in short, is the aim of this little booklet. moral and ethical well-being of our country. It is intended to set out in simple terms the Upholding the rule of law is not, however, just main principles upon which our democracy is a matter for the judges. It is the responsibility founded and the structural framework which of Parliamentarians too, as the laws which they it needs for it to function as it should. Like make are underpinned and given primacy in all reference guides, it is not something to be our courts by the theory of the sovereignty read through once only and then cast aside. of Parliament. The role that Parliament plays It should remain ready to hand, for use when in upholding the rule of law itself is therefore needed. And of course it must, and will be, crucial to its existence. But the rule of law kept up to date. I congratulate all those who is not just a concept that hangs in the air. It have contributed to the booklet’s publication. needs to be respected and cared for if it is to I am sure that they will see to it that, as time do its work. It is a living creature that works moves on, it will continue to be of use to all all around us in the institutions on which those who seek to make use of it. we depend. We need to know what these institutions are, and what they do, if we are to keep the concept alive. David Hope July 2015 7

Chapter 1: Law for lawmakers

Introduction conventions, precedents and pieces of On any one day, an legislation. Although you can’t download Whilst the legal profession is well- MP might be asked to a copy or borrow the constitution from represented in politics it has never consider the law in a 1 the library, this doesn’t make the rules and dominated the House of Commons. number of ways: principles that govern how our government For example, of Parliament’s 650 current works any less significant. MPs, only 88 practise law in and On the floor: Every new Bill presented Wales.2 This is no bad thing. A Parliament to Parliament is a government proposal This Parliament will have to grapple with full of lawyers would not only be deprived to change the law. These vary in their a number of key constitutional questions of the wider experience of our community, legal complexity and their significance. about our membership of the European Union, the protection of human rights and, but could also be deeply dull. Conducting scrutiny: Select Committees of both Houses work hard ultimately, the state of the Union. This guide As the makers of our laws, as our does not set out to provide answers to those representatives, and in holding the to keep government in check. This work can include checking whether Ministers questions, but may help readers explore the Government to account, MPs and Peers wear and agencies are acting lawfully. constitutional and legal principles which lie many hats. Each of these roles requires MPs behind them. to grapple with the law every day. However, In their constituency: MPs regularly for over three-quarters of all first-time help constituents with their problems, The ‘unwritten’ constitution including on immigration, housing and MPs this may be a very new experience. eviction, access to health and social The UK is commonly said to have an This short guide briefly introduces some of care services, and challenges to local ‘unwritten constitution’. This the key legal and constitutional principles authority decision-making. shorthand is popular but could be which MPs encounter in their work. It is misleading. It might suggest that we have designed to start a conversation about the Our constitution never bothered to think properly about bridge between politics and the law, and the rules which govern the relationships to encourage discussion about independent In most other countries, new MPs might between the institutions of state. In fact, legal support for MPs. As much of this arrive equipped with a copy of the Standing those rules have evolved over centuries of guide is equally applicable to the work of Orders of the House and a well-thumbed thought and practice, and they continue to both MPs and Peers, mentions to ‘MPs’ copy of the constitution. In the UK, the do so. This makes the constitution more throughout this guide should be taken as first is easy to get your hands on, but the difficult to grasp, but also means that it a reference to both ‘MPs and Peers’. latter less so. can adapt to the needs of our community. The starting point for any conversation on The constitution is ultimately derived from the law is always the constitution. The UK a range of sources. Ancient ‘statutes’ like is rare in having no single constitutional and the document. Instead, our constitution is are joined by more modern statements from found in an accumulation of principles, Parliament on how we run the country. For

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example, the Constitutional Reform Act Parliamentary sovereignty Parliamentary sovereignty is a 2005, the European Communities Act 1972, and the rule of law principle of the UK constitution. It makes and the Acts which govern the devolution Parliament the supreme legal authority settlement all shape our constitution as it Our constitution rests on two of these core in the UK, which can create or end stands today. common law principles. The first is that any law. Generally, the courts cannot Parliament is sovereign. The second is that overrule its legislation and no Parliament Less simple to identify are the conventions we are all – including the government of the can pass laws that future Parliaments which underpin our constitution, including day – governed by the rule of law. cannot change.” our system of ‘prerogative powers’. These are powers which traditionally www.parliament.uk The sovereignty of Parliament and belonged to the Crown by reason of its the supremacy of the law of the land… sovereign power alone. In practice, however, may appear to stand in opposition they are now exercised by the central to each other, or to be at best only The rule of law government on behalf of the Crown. counterbalancing forces. But this The ‘rule of law’ lies at the heart of appearance is delusive; the sovereignty modern democracy, but it is a phrase The ‘common law’, which is a set of legal of Parliament…favours the supremacy rules that have been developed by the courts of the law, whilst the predominance of much used and little explained. over time, is also an integral part of our law. rigid legality throughout our institutions The rule of law does not mean ‘rule by It is the source of many important principles evokes the exercise and thus increases lawyers’. While it is often said that the about who holds power in our constitution – the authority of Parliamentary sovereignty.” judiciary is the ultimate guardian of the and how that power is exercised. rule of law, this is not the same as saying A V Dicey, Introduction to the Study that the view of judges will always trump Summary of the Law of the Constitution3 Parliament’s intention.4 What it does mean is that no government can do anything The UK has no written constitution, but unless it can point to the law which gives is governed by constitutional principles It is a core principle of our constitution it the power to do so. set in practice. that Parliament is the primary source This makes sure that government bodies Our constitution is built on parliamentary of legislative authority for the UK. This sovereignty and the rule of law. principle is a common law rule recognised and other agencies can’t interfere with our by courts over centuries. freedom without Parliamentary approval; Key features of the constitution include we are all, including government, equal the separation of powers and devolution. before the law. The now 800 year-old Magna Carta – which guarantees against unlawful detention and punishment without due process – provides one of the earliest examples of the rule of law in action. 9

As a common law rule, the impact of the three branches of government. As well as the judiciary work. Parliament sets the rule of law is best understood by looking being members of the executive, Ministers budget with which the executive has to at how it works in practice. We do this in also sit and vote in the House of Commons. work. When Ministers act unlawfully, Chapter 2. While this means that the government can we can ask the courts to step in. vote as part of the legislature, it also means The separation of powers that Ministers remain subject to the rules Summary The principle of the ‘separation of of Parliament. powers’ requires that all three arms of the The separation of powers means that Nevertheless, the independence of each Ministers, Parliament and the courts state – the legislature, the executive and the of our institutions of government remains each respect their different – and judiciary – perform their constitutionally critically important. The Constitutional independent – roles in the constitution. distinct roles independently of each other: Reform Act 2005 created the new and • The executive is responsible for separate institution of the Supreme Court, The independence of the judiciary formulating and implementing policy; breaking a centuries-old link whereby our highest court – the Judicial The constitutional role of the judge is to • The legislature oversees the work of the decide cases fairly and in accordance with executive, and creates the law to reflect Committee – also formed part of our the law. A judge subject to outside influence policy; and Parliament. That Act also reflects the duty on the Lord Chancellor, a member of the cannot discharge his or her responsibility to • The judiciary interprets, enforces and executive, to uphold the independence of provide impartial justice. applies the resulting legal rules. the judiciary. Summary This allows for a system of ‘checks’ and The relationship between Parliament and ‘balances’ designed to ensure that each the courts is also based on respect for their To fairly decide disputes between institution works within the constitution. different constitutional functions. Article 9 individuals – and between people In the UK, the executive comprises the of the Bill of Rights 1689 prevents domestic and public bodies – judges must government, including the Prime Minister, courts from directly calling into question be independent. Cabinet Ministers and the Crown. The the proceedings of Parliament. This concept of a ‘privilege’ afforded to Parliament is legislature – Parliament – comprises the While the Constitutional Reform Act 2005 mirrored to a degree in the ‘sub judice’ House of Commons, the House of Lords and sets the principle of judicial independence rule, whereby Parliament will not generally the Crown, and the judiciary comprises the in statute, it is a long-standing principle of comment on cases which are actively being judges in the courts and tribunal system. the common law which underpins the right considered by the courts.5 Unlike in some countries, the separation to access to justice, the rule of law and the of powers between UK institutions is by Some of the checks that each of these separation of powers. no means absolute. Although the Queen bodies perform on each other are explored exercises limited powers in practice, the in this guide. Parliament can make laws Crown retains a unifying role across all which affect how both the executive and

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Preservation of this impartiality has a • Finally, and crucially, both actual bias and [I swear that] I will do right to all number of consequences: the appearance of bias are barred.10 manner of people after the laws and usages of this realm, without fear or • The judiciary must be institutionally In the famous Pinochet case, a House of favour, affection or ill will.” and functionally separate from the other Lords decision was overturned because The Judicial Oath branches of government. one of the judges was linked to a charity which intervened in the case. There was Judges must be free from influence by the no suggestion that the judge had not acted other branches of government, business, Judicial appointments independently, but the appearance that he political parties, other judges, the press Historically, the Lord Chancellor’s office could have done so meant the case had to be and media, and any other organisation or comprised elements of executive, heard again. individual which might sway them in their legislative and judicial power. Today, decision-making. the Lord Chancellor has no judicial role. Institutional competence and respect Instead, it is the Lord Chief Justice Points of constitutional crisis in the history Independence from Parliament and the who is head of the judiciary in England executive is particularly important. It is and Wales.7 of the UK have been exceptionally rare. vital that the judges who adjudicate on the Generally, the principles of parliamentary law are independent from those who make Independent bodies are responsible for sovereignty and the rule of law reinforce judicial appointments and remuneration the distinct constitutional responsibilities and implement it. within their jurisdiction. For example, the Judicial Appointments Commission of both Parliamen