By Lorenza Buttini
Lorenza Buttini is a graduate in the master’s degree in law at the University of Pavia with a score of 109/110. Her final dissertation, discussed in December 2022, is about ‘The contrast to the gender pay gap’ in the field of European Comparative Labor Law, with particular focus on pay transparency legislation. She represented the University in the 29th edition of the Willem C. Vis International Commercial Arbitration Moot and is looking forward to a career at a European level.
Blue Europe is an indipendent think tank and does not approve nor share the content or the position of invited authors. The article was created during the 2022 Blue Europe student contest.
The expression ‘Rule of law’ is currently used in several international and national legislative acts, which rarely contain a definition of it. However, it is vital to clarify which meaning these terms assume for the purposes of this paper. In fact, the Rule of law is often erroneously translated as Rechtstaat or État de droit, which have a different meaning and historical origin, as it will be briefly discussed in this introduction.
On the one hand, the essence of the Rule of law was eloquently illustrated in Introduction to the Study of the Law of the Constitution (1885) of the legal scholar Albert Venn Dicey, a notorious British constitutionalist. According to Dicey, the rule of law consists in the protection of individual liberty from abuses of the State by the common law.
On the other hand, the concept of Rechtstaat was theorized by the German jurist Robert von Mohl in his work Encyklopädie der Staatswissenschaften (1872). The Rechtstaat or legal state, as it is also called, refers to the fact that the absolute power of the executive must be limited and balanced by the legislative power.
There are conspicuous differences between the two concepts since the Rule of law has its source in judge-made law and aims to protect the individual from the arbitrariness of the State, while the Rechtstaat is codified in written constitutions and aims to ensure a balance between the constitutional powers, also guaranteed by judicial review.
At present the rule of law is threatened both in the UK, where a reform on judicial review is taking place, and in several EU countries, where national governments are questioning the supremacy of EU law. Maybe the consequences of this process are not clear nor visible yet, but the issue is worth knowing since its outcome is likely to affect the enjoyment of fundamental rights. This paper intends to offer a clear view of what the Rule of law represents, firstly with regard to the English legal system, and secondly referring to the European Union’s framework. The first section is focused on the Judicial Review and Courts Act, enacted in UK in 2021, while the second section illustrates the changes of the constitutional system taking place in Hungary, Poland, and Romania.
The British form of government is traditionally based upon two key principles, which are the Sovereignty of Parliament (in the past a King’s prerogative) and the Rule of law. The first expression refers to “the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament". In fact, statutes enacted by Parliament are considered as part of the British Constitution and cannot be challenged by decisions of the courts. Although over the years Parliament’s supremacy has been slightly reduced by the issuing of the Human Rights Act 1998 and the adhesion of the UK to the European Union, it still represents a core element of the Westminster system. Regarding the second expression, according to the legal scholar Albert Venn Dicey, rule of law or predominancy of law has three meanings:
- supremacy of regular law;
- no arbitrariness by the government;
- equality before the law.
The law referred to is the binding legal authority derived by statutes (i.e., the supreme law of the land), statutory instruments and judicial decisions, which clarifies the regular laws and fills eventual legislative gaps. After Dicey, many legal scholars have joined the debate about the meaning and the implications of the rule of law in the English legal system. Among them, Trevor defined the substantive content of the rule of law as composed by procedural principles, ensuring the primacy of ordinary courts as exponent of the common law, as well as general principles of law preserved and enforced by them. According to Bradley and Edwig, Dicey’s theories of the rule of law and of the sovereignty of Parliament are based on assumptions about the British system that no longer apply, albeit they are still influential. In their opinion, the modern concept of the rule of law entails three meanings: law and order better than anarchy, government according to law, a doctrine affecting the making of new law. The idea of government according to law refers to the principle of legality, which represents a condicio sine qua non of the rule of law, but it is not sufficient to ensure the protection of fundamental rights.
A major role in the preservation of the rule of law is played by judicial review, which allows designated courts to put into scrutiny measures by the executive branch or other public bodies, if adopted without following the proper lawful procedure. On the contrary, judges cannot syndicate the lawfulness of decisions made by the Parliament, because of its sovereignty.
Given the situation, there is a risk of institutional short-circuit because the Government, likely to control the majority of the House of Commons, could limit civil liberties through legislation, taking advantage of what Sir William Blackstone called ‘the omnipotence of Parliament’. Such view is not supported by Trevor’s analysis according to which ‘the doctrine of parliamentary sovereignty is widely thought to make both rule of law and separation of powers subservient to the wishes of a majority of elected legislator or of the executive government that wields the majority in the House of Commons’. In his comment to Dicey’s theory of the rule of law, Trevor argues that the potential arbitrariness of statutes is prevented by the exclusive function of interpretation attributed to the courts. Hence, he denies the existence of a tension between the sovereignty of parliament and the rule of law. However, it must be taken into account that such interpretation exists only when a dispute arises. Moreover, judicial review is restricted to a limited number of cases and can be exercised by some courts only. In the recent past, the membership of the UK in the European Community and the adhesion to the European Convention of Human Rights (ECHR), guaranteed that statutes of Parliament could be challenged if they imposed limitations of the rights covered by the Convention, which was directly applicable by English courts thanks to the HRA (Human Rights Act) 1998. Most notably, the HRA 1998 attributed to every ordinary court the interpretation of any administrative act in light of the values contained in the ECHR. The close interaction which exists between the rule of law and judicial review in the English legal system was remarkably expressed in M v Home Office, considered a milestone judgment in constitutional law. As to the facts of the case, a citizen of Zaire (M) made several requests for asylum in the UK, but they were all rejected. During the pending of his last application for judicial review in the High Court, it was the judge’s understanding that the removal of the individual from the UK would be postponed to the end of the proceeding. However, M was deported in Zaire, so the judge issued an injunction against the Home Office and the Secretary of State to obtain his return. The injunction was set aside by the Secretary of State, whose defence was based on the immunity of the Crown and its ministers from any injunction, established by the Crown Proceedings Act 1947, while M’s defence was based on the fact that the Secretary of State acted in contempt of court. The Court of Appeal held that M’s return was due, dismissing the wide interpretation of Crown’s immunity given by the Home Office, since ‘the proper constitutional relationship of the executive with the courts is that the courts will respect all acts of the executive within its lawful province, and that the executive will respect all decisions of the courts as to what its lawful province is’. This view was confirmed by the House of Lord where Lord Templeman argued that “The judges cannot enforce the law against the Crown as Monarch because the Crown as Monarch can do no wrong but judges enforce the law against the Crown as executive and against the individuals who from time to time represent the Crown”. This case offers a plain example of the way in which judicial review ensures compliance with equality before the law, since even ministers of the Crown acting in the course of their duties can be impleaded for contempt of court and are not immune to injunction reliefs.
The political concerns about an overruling in judicial review trials started after Miller I (2017) and Miller II (2019), two judgments in which the Supreme Court ruled upon the limits to the powers of the executive.
The recent vicissitudes of the Rule of law in the UK are strictly intertwined with the Brexit (from ‘Britain’ and ‘exit’), a term which refers to the withdrawal procedure of the UK from the European Union. In fact, after more than forty years of membership (the UK’s adhesion dates to 1973), the referendum occurred on 23 June 2016 ascertained the popular will to leave the EU. Thus, the Government initiated the procedure under Art. 50 TEU, which provides that a notice of withdrawal must be sent to the European Council and following negotiates must be conducted to reach a withdrawal agreement. Moreover, according to the first paragraph of Art. 50 Treaty of Lisbon, the exercise of the right of withdrawal is conditioned to the compliance with the constitutional requirements existing in the receding State. At the time, there was a public debate concerning the legitimacy of the withdrawal procedure followed by the UK, especially in the part where the Government alone, without involving the Parliament, sent the required notice. Hence, the matter was brought before the English Divisional Court, which ruled in favour of the claimant, holding that an Act of Parliament of authorization was needed under the British Constitution. Thus, the Government appealed the decision before the Supreme Court, which was asked to deliver a judgment not on the merit of the choice to leave the EU, but on the legitimacy of the procedure followed by the Executive in accordance with the fundamental principles of separation of powers and Parliamentary supremacy. In 2017, the Supreme Court issued a judgment, known as Miller I, where the legal reasoning proceeds from the analysis of the instauration and development of the relationship between the UK and the EU. The decision on appeal confirmed the one issued by the court of first instance, establishing that the withdrawal from the EU must be regulated by the Government and the Parliament. In addition, it is underlined that legislation is necessary to regulate every step of the proceeding since times and ways of withdrawal must be determined by Parliament itself. The main argument of the appellant relied upon the fact that international affairs are a King’s prerogative falling within the competence of the Government. On the contrary, the other party argued that despite Government’s competence on the matter, it cannot modify rights conferred by statutory legislation. Therefore, since the entrance of the UK in the EU and the incorporation of EU legislation into domestic law were sealed by the European Communities Act, enacted by Parliament in 1972, the Government cannot unilaterally modify it.
Two years later, another landmark ruling was issued by the Supreme Court (Miller II), concerning the exercise of the power of prorogation by the Prime Minister Boris Johnson in August 2019. Prorogation is a King’s prerogative, formally implemented by the Executive, whose primary effect is to end parliamentary sessions that occur during a parliamentary term. According to a consolidated constitutional convention, it is the Prime Minister who gives advice of prorogation to the Monarch. In the present case, Johnson was accused of exploiting the prorogation mechanism to prevent parliamentary discussions on the convenience of Brexit. In fact, such discussions could compromise the Conservative Party’s campaign in favour of the UK’s departure from the EU. Before Miller II, the matter was examined by different courts, and for a remarkable coincidence opposed judgments were issued on the very same day in England and Scotland (11 September 2019). In the English case, the claimant (Gina Miller) stated that the Prime Minister committed abuse of power and undermined the sovereignty of parliament, while the defendant, albeit admitting that the exercise of Royal Prerogative is not exempted from judicial review, said that the matter was not justiciable. The High Court held that the Prime Minister’s decision of prorogation was inherently political, and therefore excluded its justiciability, since there are no legal standards to establish the lawful length of prorogation. In the Scottish case, the matter was found non-justiciable by the court of first instance as well. However, in the appeal judgment, the Inner House of the Court of Session held unanimously that the Prime Minister’s decision was not only justiciable but also unlawful. In fact, the examination of circumstances, facts and documents led to the conclusion that the Prime Minister exercised such Royal Prerogative to interfere with parliamentary scrutiny, a core value of democracy and the rule of law.
Then, the matter was referred to the Supreme Court, whose legal reasoning will be briefly discussed. Granted that a prerogative power exists and is exercised within its extent, the judge had to verify if such power is justiciable. According to the Council of Civil Service Unions case AC 374, the justiciability of such power depends on its nature and subject matter because some highly political acts (like Parliament’s dissolution) must be exempted. In this respect, counsel for the Prime Minister argued that prorogation is similar to dissolution of Parliament, but his allegation was rejected. A central step in the reasoning of the Supreme Court was the identification of a standard by reference to value the lawfulness of the power. Although the limits of prerogative powers are not written down in statutes, they can be identified by the courts to ensure compliance with the common law.
From past relevant case dealing with the exercise of statutory powers, it can be inferred that a power is lawfully exercised as long as there is a reasonable justification to the limitation and frustration of constitutional principles.
In light of these considerations, the Supreme Court held that the power of prorogation was exercised beyond its legal limits and declared the act void. Besides, the frustration of the constitutional principles of Sovereignty of Parliament and Parliamentary Accountability took place in a very critical moment for the UK and was not compensated nor balanced by any reasonable and objective justification. In fact, the UK was navigating a very difficult transition and the House of Commons had previously expressed serious concerns to the departure from the EU in the absence of a withdrawal agreement. No reasons or justification was given by the Executive to explain why a so long prorogation was needed.
As previously stated, Miller I and Miller II remain controversial constitutional cases, both dealing with King’s prerogatives exercised by the Executive, which have foster debate on the extent of judicial review.
In 2019, the Conservative Party won the general election and set out in its manifesto the willing to review the Human Rights Act 1998 (HRA) and administrative law to ensure a correct balance between individual liberties, national security, and effectiveness of government. To do so, the government set up two independent reviews, one concerning judicial review and one about the HRA.
In short, the IRAL (Independent Review of Administrative Law) was published in March 2021 and offered two main suggestions:
- to stop the Cart judicial review applications (law rate success);
- to improve the flexibility of judicial review by providing the courts with the power to issue suspending quashing order.
The Bill was approved by the Parliament in July 2021 and the JRCA (Judicial Review and Courts Act) received Royal Assent on 28 April 2022, entering officially into force. The most two relevant changes introduced by the JRCA are related to judicial review’s remedies and reversion of Cart judicial review.
Firstly, Part I, Section 1 of the Act establishes new quashing orders (suspended quashing orders and perspective-only quashing orders) in addition to the regular ones. Before the reform, a quashing order had the effect to void ab initio a decision of a public body made ultra vires (which is a decision made outside of the public body’s competence). Now, the courts endowed with judicial review powers can discretionally limit the retrospective effects of the quashing orders or even suspend them to give the public body, whose measure is found unlawful, the opportunity to correct any failure. On the one hand, this means helpful flexibility to public bodies, while on the other it shall result in a limitation of the remedy granted to the victorious claimant. In addition, when the Equality and Human Rights Commission was asked to give an advice on the equality implications of the Bill, it said that suspending and perspective-only quashing orders undermine the rule of law and, as far as they deprive the claimant of an effective remedy, constitute a violation of Art. 13 ECHR.
Secondly, Part I, Section 2 of the Act is an ouster clause which overturns the principle of common law established in Cart, so that decisions on appealability, made by the Upper Tribunals, are no longer subject to judicial review. Therefore, the burden on the Administrative Court will be reduced but, in the meantime, there is a risk of restriction to justice in cases regarding fundamental rights. In fact, Cart decision reviews often relates to immigration and detention issues, human trafficking, and homelessness cases. Thus, Section 2 can result both in a limitation of the right of appeal of people who belong to the most vulnerable categories, and in a violation of the ECHR and of the Refugee Convention.
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