Name of the candidate: Ammar Amid Bukhari

Roll: LLB 28

Batch 2
 Ans to the ques. No.1
The given question talks about the rule of law. It critically focuses on the angle which
deals with whether courts are are more willing to uphold rule of law and limit the
parliamentary supremacy or not. This answer will look into the development of the rule
of law which has been defined by many jurists and authors and will be related with
parliamentary supremacy.

Rule of law has been defined by several academists like Aristotle and Dicey, but even
today we have not reached a clearer definition of it. Aristotle said that it is more proper to
be governed by law than any one of the citizens. Dicey has tried to to describe rule of law
in three aspects. Firstly, there should be no punishment without lawful authority and there
should be no discretionary power used. Then, everyone is equal in the eyes of law and
lastly, common law courts are the best protectors of individual rights. Each of them will
be discussed in the later paragraph. In understanding rule of law, we should know the
importance of it. As per the UK constitution being uncodified and the parliament is
supreme that it can make or unmake any laws its wishes and it cannot be challenged in
the court (Dicey), the rule of law can be the driving force to prevent the parliament from
making law which may undermine individual’s liberty and create a sense of tyranny
within the state. This also gives a hint that there should be separation of powers between
each organ of the state- executive, judiciary and the legislature- so powers are not
concentrated into one body and it can not do anything it likes and destroy the rule of law.

Dicey’s view of rule of law is pretty old and has been the subject of much criticism.
Dicey used the case Entrick v Carrington to explain his first principle that no punishment
without lawful authority. In that case it was held that the executives could not trespass
someone’s home without prior notice, since there were not laws which can authorize such
action. Hence, it was held to be unlawful. However, this case can be contrasted with
Malone v MPC, where phone tapping was held to be liable since there were no law which
restricts the executives from tapping someone’s phone. Ivor Jennings has argued that in a
modern society where governing the people would be too difficult if executives does not
exercise some discretion. The second principle could also be argued that not everyone is
equal in the eyes of law. Children below the age of 10 is considered as doli incapax, they
can not commit any crime. Foreign diplomates are immune from criminal prosecution
and a judge could not be sued for giving a particular judgment. Members of Parliament
are immune from suing for defaming another MP at parliament proceedings. The
common law may not be the best protectors of individual rights after the enactment of the
Human Rights Act 1998.

Now, the modern doctrine of rule of law rests upon Lord Bingham and Raz’s eight sub
rules. According to them, laws should be prospective. It should not be retrospective
which makes something unlawful which was lawful at the material time. Lord Sumption
in Ferguson v A-G of Trinidad and Tobago has stated that creating common law is a
characteristic of retrospectivity which Allen argues is not since common law developes
due to changes in the fact of a case. The case of Rv R was held not to have retrospective
effect since there were clear indications of making laws regarding maritial rape.

Laws also need to be open and clear. Lord Donaldson in the case of Merkur shipping v
Laughton held that rule of law is efficient when an individual understands that it is in
their interest and clearly knows about the law. Following this, Lord Diplock has also said
that lack of clarification of the law is harmful for rule of law. Similarly, laws should be
certain hence extreme of level of judicial activism is not good according to Lord
Bingham. Laws should also follow the principles of natural justice i.e fair trial and no
discrimination.. Lord Steyn has said something important regarding this with parliament
supremacy. In ex p Pierson, he stated the court will presume that parliament makes law in
line with the rule of law. There has been wide debate about this. Speaking extra-judicially
Lord Woolf has stated that the court will no longer uphold parliamentary supremacy, if it
makes law which abolishes the judicial review. Now, as discussed above in Dicey’s first
aspect that, after criticism, that discretion of the executives should be regulated. Judicial
review is the only way where the judges can hold the executives accountable and uphold
rule of law.

In contrast in a lecture in 1996, Lord Steyn stated in every cases the court has recognized
the parliament’s sovereignty and there are no exceptions. He himself in the case of
Jackson v A-G, diverted from the earlier views and suggested similar action to be taken
which was mentioned by Lord Woolf. In the same case, Lord Hope has stated that it is the
rule of law which should be followed by the parliament. Such instances have never
happened where the parliament went out of its limits and it is quite cleat that the
parliament would not do so. Sir Leslie Stephan has given an example that if parliament
wishes it can legally make a law that all blue-eyed babies should be killed. Practically, it
would not do so due to political reasons. As Lord Reid stated that there is difference
between what is can and what it will do. Parliament will not make such laws which wich
will make them unpopular and create a hatred among the public eyes for them. This is
because at the end of the day, the government majority sitting in the parliament knows
that at the end of five years, they will be returned to the electorates. Tony Blair
apologized for a number times to a lady in a BBC interview when it was asserted that he
could not fulfill his promise to upgrade the NHS. We can understand the driving factor
that rule of law has upon the parliamentary supremacy.

Gordon has argued that the statements of Lord Steyn and Hope can be a guidance for
future judges if such situation arises. On the other hand, Baroness Hale has argued that
the construction of presumption that parliament legislates in accordance with rule of law
can be rebutted easily with the help of express terms.

The battle between to uphold rule of law and parliament supremacy was also ignited by
the enactment of the HRA 1998 where courts had to make sure that the legislature was
compatible with the convention rights (S.3) and if not, make a declaration of
incompatibility (S.4). In A and others v SOS for Home Department, it was held that the
ant-terrorism Act enacted by the parliament could not detain foreign nationals without
trial and DOI was made under s.4. The court held that to uphold national security it was
not needed to detain someone without a tria. This shows judiciary’s willingness to uphold
rule of law. Before HRA 1998, they used to listen more to the parliament’s word and what
it intended (ex p Cheblak). However, this case can be contrasted with the case of Corner
House Research. In that case, the Director of Fraud Office did not carry out a
investigation due to the threats from Saudi Arabia government to attack UK. The
divisional court held that the director did an unlawful act by not continuing the
investigation and uphold the rule of law. On appeal, the House of Lords concluded that
national interest was at stake and hence the director has taken an appropriate decision.

More recently, in the case of Miller 2 where the Queen has prorogued the parliament with
the advice of PM Boris Johnson, Lady Hale sitting in the UKSC held that through
parliament the executives could be hold accountable. If it does not happen then rule of
law will not be upheld. In the same manner, parliamentary supremacy was upheld in this
case. This proves that courts are ready to uphold parliamentary supremacy and rule of law
at the same time.

From the above discussions, we have discussed several cases where there was a battle
between parliament supremacy and rule of law. Legally, the parliament can do anything
but practically it would not do so. There was a higher chance to uphold rule of law after
the implementation of HRA 1998 but was substantially reduced after terrorist attacks
since there was rising need to protect national security. In conclusion , no situations has
arisen where parliament has made laws that goes against rule of law.
 Ans to the ques no.4

The following question deals with conventions and their impact on the UK constitution.
This also further illustrates the need for reform of the convention. This answer will look
into the meaning of conventions, how it operates in the constitution and the need for its
reform.

The constitution of the UK is generally described as ‘unwritten’ but it is true to say that it
is not codified within a single document. Much of the constitution can be found in
formal, written source. Conventions are an informal unwritten source of the constitution.
The origins and enforceability of conventions are uncertain, and while some appear to
have a great force, while others fall away over time. Some would argue that the
possibility of evolution and changes gives the unwritten constitution the benefit of
flexibility. On the other hand, it could be argued that it is inappropriate for rules
governing important areas of conduct in public office to be so poorly defined and without
legal sanction.

Dicey has defined convention as habits, understanding and practices that are not
enforeceeable by the courts. These are more than the just ‘habits’, however as Waldon
points out, they are accepted values by those bound by such conventions . Loveland
suggests that the function of the convention is fill the gaps within the constitution. It can
be hard to determine to determine when a conduct is simply an accepted practice, and
when it should be considered as a convention. In A-G v Jonathan Cape and
Madzimbamuto, the court held that they would just recognize convention but cannot
enforce them. Similarly, in Miller 1 the UKSC could not enforce the Sewel convention,
that the Westminster will not interfere with the Scottish legislation, since it was not
enforceable in a court of law.

Sir Ivor Jennings has formulated a test to identify a convention. Firstly, it needs to be
identified what is the precedent, acceptance of the precedent by the individual concerned,
and a reason for the the rule. It is clear, then, that a constitutional convention emerges
from tradition and practice, and can indeed carry great weight, as a breach may have
severe consequence such as criticisms.

On of the core ways through which ministers could be hold accountable is by way
ministerial responsibility. According to Andrew Le Sueur, it is an indicative of the
creation of legitimacy of the executives.The two limbs of this convention is individual
ministerial responsibility (IMR) and collective individual ministerial responsibility
(CMR). According to Hillaire Barnett, this two limbs can create a vagueness since they
both interrelated and complementary.

In the case of CMR, the first aspect is the confidence principle which states a government
has to resign if it does not maintain the confidence in the parliament. This is what
happened in the James Callaghan government in 1979. The unanimity principle which
states that the cabinet if fully responsible for one particular decision so that there is no
blame shift among the ministers. Robin Cook and Claire Shot resigned since they could
not agree with the cabinet regarding the Iraq war. Lastly, all cabinet meetings should
remain a secret.

In the case of IMR, there is personal conduct. Michael Fellon had to resign for repeatedly
touching the knee of a journalist and for financial conduct David Blankett had to resign
as well since he did not consult the Advisory Committee of Business Appointments
regarding appointments after the resignation within two years of his resignation.
Ministers has resigned due to departmental misconduct as happened in the Crichel Down
Affiars. However, Michael Howard and James Prior, following prison escape case,
distinguished accountability and responsibility. According them and Richard Scott,
accountability means to answer in front of the Parliament about their departments
conduct while responsibility means taking the blame of their department’s misconduct.
They said they are merely accountable.

Executives could be held accountable by parliament debate and PMQ. Conventions also
enhances Separation of powers for example a judge can not discuss about an ongoing bill.

Now, we will look into whether there should be any reforms for convention i.e whether it
should be codified or not.Yes, it should be codified to bring certainty in the constitution
and so the ministers and public officials are aware of it. Marshall and Moodie have drawn
up a balance sheet of the expected achievements of codifying the convention. They argue,
for example, that codification could not enhance the obedience to a convention any more
than it is at present. This means that codifying the convention will likely make things
certain but public official violating conventions will remain. Furthermore, many
conventions are not well defined and hence it will be a very difficult task for the drafters
to give meanings to such conventions. It is also important to give legal effects to the
conventions by codifying them so that the courts recognise such conventions and give
legal effect. The fact that codifying them will lead to acquire greater legitimacy and
authority by its transformation into law may not happen in the real life.

Constitutional conventions in the UK by Megan Coulfield has discussed some ways to

create a reform for convention .They can be codified to introduce certainty for instance
the ministerial code has codified conventions that apply to ministers like the concepts of
collective and individual ministerial responsibility. Put them into legal platform to make
them legally enforceable. The problem with is it will restrict flexibiliity . The regulation
of political situation using law would embroil judge to get into political arena for
example if judges had to decide when a minister should resign. This would also breach
the concept of seperation of powers. The best approach is to leave them as they are and
embrace the flexibility they bring to the constitution of the UK.

The process of codification raises important question as to those conventions which has
been identified and which has been not. It is widely accepted that convention evolves and
leaves away as well. Hence, there will be complexity created when changes needs to be
make and update it at all times. If this does not happen, in the words of Blick, this will
lead to an ossification effect and the conventions will get fixed or entrenched.

The cabinet Manuel established in 2010 gives effect to the conduct of ministers
individually and collectively and creates more certainty.

In conclusion, conventions should remain as it is so to achieve flexibility. Hence, it plays

an important part in today’s constitution.