ROL Introduction Section 1 of the Constitutional Reform Act 2005 states: o This Act does not adversely affect

t (a) the existing constitutional principle of the rule of law, or (b) the Lord Chancellor's existing constitutional role in relation to that principle This short section, !hich !as the sub"ect of learne# #ebate in $arliament, lea%es the rea#er little the !iser as to the &uestion ' what is the rule of law? Clearl(, it is a principle !hich pre dates the !""# Act an# !as seen as sufficientl( important for the )or# Chancellor*s role in relation to it to be preser%e#

 +n fact, the absence of any atte$pt in the Act to define the rule of law reflects the uncertainty !hich exists aroun# this rather ne%ulous concept +n this chapter, we will loo& first at Lord 'ingha$'s eight su% rules an# then consider %riefly the distinction %etween 'content free' and 'content rich' interpretations of the rule of la! (icey's influential) if flawed, description of the rule of law will then %e reviewed, together !ith criticisms of his approach ,inall(, we will discuss the practical ways in the rule of law is protected in the *nited +ingdo$: through the courts) ,arlia$ent and the office of Lord Chancellor

-.1

'ingha$'s eight 'su% rules'

Lord 'ingha$ grappled with the challenge of defining the rule of law b( %rea&ing it up into eight 'su% rules'. -is #iscussion of these sub'rules has been one of the $ost influential $odern discussions of the rule of law. The sub'rules are as follo!s o The law $ust %e accessi%le an#, so far as possible, intelligi%le) clear and predicta%le o /uestions of legal right and lia%ility should ordinarily %e resolved %y application of the law an# not the exercise of discretion. o The laws of the land should apply e0ually to all) save to the extent that objective

differences require differentiation

o 1inisters and pu%lic officers at all le%els must exercise the powers conferred on the$ in good faith, fairl(, for the purpose for !hich the po!ers !ere conferre#, without exceeding the li$its of such powers and not unreasona%ly o The law $ust afford ade0uate protection of fun#amental rights o 1eans $ust %e provided for resolving, without prohi%itive cost or undue delay, bona fi#e ci%il #isputes !hich the parties themsel%es are unable to resol%e o Ad2udicative procedures pro%i#e# b( the state should %e fair o The rule of law re0uires co$pliance %y the state !ith its o%ligations in international law as in national law .e !ill no! consi#er a number of issues arising from these sub'rules in the light of the /0 constitution

-.1.1 Accessi%ility) clarity and predicta%ility .h( are these re&uirements important1 2ingham gi%es three reasons: o first, so that we &now what we $ight face a cri$inal penalty for3 o secon#, so we can clai$ our rights an# un#erstan# our obligations3 o thir#, because successful conduct of trade and co$$erce depends on accessi%le rules.

Access to la! thru +nternet +n recent (ears considera%le efforts ha%e been ma#e to ena%le 'ritish citi3ens to have access to the 'raw' law through govern$ent we%sites such as !!! legislation go% u4 as !ell as go%ernment #epartment !ebsites an# the !!! go% u4 portal This represents a significant advance in the accessi%ility of the law for those members of the public with access to the internet 4roups with little access to the internet lose out %y co$parison

Clarit( ma4e #ifficult to #raftmen Clarity is always a difficult challenge for parliamentar( drafts$en of statutes an# statutor( instruments $articular #ifficulties are generate# !hen areas of law are very controversial politically and su%2ect to fre0uent legislative change Criminal "ustice has become $ore confusing in recent (ears, !ith Cri$inal 5ustice Acts every year and changes introduced %efore the innovations in the previous Act have %een i$ple$ented. Other areas of law have %enefited fro$ considered 'consolidating' Acts, often drafted or influenced %y the Law Co$$ission.

/ncertaint( of the case la! lea# to no pre#ictabilit( +n relation to the develop$ent of case law, 2ingham has highlighte# the difficulties of interpretation caused for lawyers and their clients in subse&uent cases !hen the Court of Appeal judges or Supreme Court 2ustices give separate individual 2udg$ents, rather than agreeing to a single 'leading' judgment )or# 5onal#son in Merkur Island Shipping Corpn v aughton (6789) state#: o A%sence of clarity is destructive of the rule of law3 o it is unfair to those who wish to preserve the rule of law3 o it encourages those !ho !ish to un#ermine it (:6789; 6 A++ <R 99=, p 956)

 ,redicta%ility is a very i$portant aspect of the rule of law.

 +n dictatorships, citi!ens are often left uncertain as to "hether or not a particular action "ill be subject to criminal punishment ' the power of the state is enhanced %y the unpredicta%ility

' Retrospecti%e effect ,articular difficulties arise !hen laws are $ade to apply retrospectively (to actions !hich ha%e alrea#( happene#) This happene# !hen the 6ar (a$age Act 178# a%olished the right to co$pensation for da$age done during war before or after the passing of this Act 9ollowing Article : of the <uropean Con%ention on -uman Rights ;<C=R>, the courts will interpret legislation under a presu$ption that it does not have retrospective effect.

-.1.! Application of the law e0ually to all) su%2ect to o%2ective distinctions +n the cri$inal law, children and those without $ental capacity are treated differently in terms of proce#ures for in%estigation an# trial as !ell as in sentencing Children under 1" are treated as doli incapax legally incapa%le of co$$itting a cri$e

-.1.? 1inisters and pu%lic officials should act in good faith) fairly) within their powers and not unreasona%ly This is the core of ad$inistrative law, !hich is #iscusse# in #etail in Chapters 65'6> The re$edy of 2udicial review is a%ailable to challenge the actions of $inisters (inclu#ing their role in creating secon#ar( legislation) an# other public bo#ies !here the( ha%e acte# outsi#e the po!ers !hich !ere gi%en to them (usuall( b( an Act of $arliament), or acted unfairly or unreasona%ly (ecision $a&ing can %e challenged if there is %ias or individuals are not given the right to a fair hearing.

-.1.- ,rotection of hu$an rights The incorporation of the <C=R into *+ law %y the =u$an Rights Act 177@ (-RA) has ha# ma"or implications for the protection of in#i%i#ual rights .e !ill examine this area in more #etail in Chapters 68'20

-.1.# Access to civil 2ustice without excessive cost or delay Although alternati%e #ispute resolution ;A(R> is increasingly popular and encouraged b( go%ernment, %ut handling civil court cases is still a core function of the legal syste$ +n R % )or# Chancellor, exp 6itha$ (6778) an applicant in receipt of state %enefits successfully challenged, b( !a( of "u#icial re%ie!, an order $ade %y the Lord Chancellor increasing the costs of writs (claim forms) )a!s ? state#: o Access to the courts is a constitutional right3 o it can only %e denied %y the govern$ent if it persuades ,arlia$ent to pass legislation which specifically ' in effect b( express pro%ision ' per$its the executive to turn people away fro$ the court door

o Ahat has not %een done in this case. (:6778; @2 5>5, p 58A) The costs of civil litigation are always controversial an# the labour'intensi%e nature of the adversarial court syste$ has le# to rapidly increasing civil legal aid costs Changes to be introduced under the Legal Aid) Sentencing and ,unish$ent of Offenders Act !"11 !ill intro#uce 'damages# based agreements', ena%ling clai$ants' lawyers to %e paid on the %asis of a percentage share of the #amages an# !ill wea&en still further the availa%ility of legal aid. The intro#uction of the Civil ,rocedure Rules ;C,R> has not led to the savings in costs that !ere originall( hope# for, although "u#icial case management un#er the C,R has reduced delays.

-.! 'Content free' and 'content rich' interpretations of the rule of law Content'free The content free interpretation of the rule of law focuses on the for$ of the law an# the procedures %y which law is $ade The legal !riter Ra3 identified eight %asic principles which reflect this approach. o All law should %e prospective) open and clear o Laws should %e relatively sta%le. o The $a&ing of laws should %e guided %y clear rules. o The 2udiciary should %e independent o The principles of natural 2ustice should %e o%served

(see the #iscussion of a#ministrati%e la! at Bection = 6 9) o The courts should %e a%le to review the i$ple$entation of other principles o The courts should %e easily accessi%le o The discretion of the police and cri$e fighting agencies should not pervert the la! Clearl( most people !oul# %alue these principles an# accept that their absence !oul# #amage confi#ence in the state Are they enough for a good society?

 Supporters of the 'content free' interpretation (such as $aul Craig in his paper for the -ouse of )or#s Constitution Committee, Ath Report 200A'0>) do not deny that the principles shoul# be supple$ented %y other values such as rights, "ustice an# #emocrac( but argue that these values should not %e attached to the concept of the rule of lawB o The message is therefore that if you wish to argue a%out the 2ustness of society #o so b( all means o If you wish to defend a particular type of individual right then present (our argument +t is however on this view not necessary or desira%le to cloa& the conclusion in the $antle of the rule of law, since this !ill $erely reflect the conclusion which has already %een arrived at through reliance on a particular theor( or the "ust societ(

Content'rich The 'content rich' interpretation is a $ore co$plex an#, perhaps, idealistic view of the rule of law. Ronal# (wor&in summarise# it as: o + shall call the second conception of the rule of law the 'rights' conception o +t assumes that citi3ens have $oral rights and duties with respect to one another, an# political rights against the state as a !hole o It insists that these $oral and political rights %e recognised in positive law, so that the( ma( %e enforced upon the de$and of individual citi3ens through the courts an# other "u#icial institutions of the familiar t(pes, so far as this is practicable (A matter of principle (2oston, CA: -ar%ar# /ni%ersit( $ress, 6785) :+B2D 7>80A>=55=A60;)

 Catch, so far as (ou can, RaE*s eight principles to 2ingham*s sub'rules in the table belo!: 'ingha$ Ra3 1 The law must be 1 All law should be accessible and, so prospective, open far as possible, and clear. intelligible, clear and predictable. 3 The making of laws should be guided by clear rules.

4 Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably. 6 Means must be provided for resolving, without prohibitive cost or undue delay, bona fide civil disputes which the parties themselves are unable to resolve.

The principles of natural justice should be observed

5

7 courts should be easily accessible.

 In the light of this co$parison) do you thin& that 'ingha$'s eight su% rules are 'content rich' or 'content free' interpretations of the rule of law?

-.? (icey's description of the rule of law Tra#itionall(, pu%lic law text%oo&s have started their chapters on the rule of law with (icey's fairl( succinct three'point #escription The danger of this approach is that stu#ents ma( fail to appreciate how $uch (icey's summar( in +ntro#uction to the stu#( of the la! of the constitution reflects the political and legal reality of the late 17th century, rather than that of the *nited +ingdo$ of the !1st century Conetheless) the description continues to influence constitutional writers an# it is important to un#erstan# the three elements as !ell as the criticisms of them

 -e #escribe# the rule of la! as follo!s o Co $an is punisha%le or can be ma#e to suffer in bo#( or goo#s except for a distinct %reach of law establishe# in the or#inar( legal manner before the or#inar( courts of the lan# <ffecti%el(, 'regular' law was to %e applied and not the use of ar%itrary or discretionary powers. o Co $an is a%ove the law e%er( man, !hate%er his ran4 or con#ition, is sub"ect to the or#inar( la! of the realm e%er( official from the $rime Cinister #o!n is un#er the same responsibilit( for e%er( act #one !ithout legal "ustification as an( other citiEen o The general principles of the constitution (e g the right to personal libert(, or the right of public meeting) are the result

of 2udicial decisions deter$ining the rights of private persons +n short, he was arguing that the constitution was '2udge $ade'

-.?.1 Criticis$s of (icey Sir Ivor 5ennings, in The la! an# the constitution ()on#on: /ni%ersit( of )on#on $ress, 6799) has criticised (icey's assu$ption that the rule of law was inconsistent with the use of discretionary powers %y the executive .e !ill see in Chapter 7 how the co$plexities of governing a technically sophisticated countr(, as !ell as other constraints such as li$ited parlia$entary ti$e, ha%e le# to a great increase in the use of delegated or secondary legislation, in the form of rules an# regulations The importance of this legal frame!or4 in setting the groun# rules for business an# in#ustr(, as !ell as fulfilling other social purposes, such as the protection of the en%ironment, must be un#erstoo# ?ennings also argued strongly that (icey's second point ignored the particular responsi%ilities pu%lic officials hel# b( %irtue of their roles

 +n a##ition, he ignored the special i$$unities certain categories of individuals ha%e, for example chil#ren an# foreign #iplomats !ith #iplomatic immunit( ,inall(, (icey's third point co$pletely ignored the role of statute in the constitution. <%en in respect of the examples he gi%es ' personal libert( an# the right of public meeting ' there are $any statutes giving vital protections and i$posing significant constraints. These include) of course) the =RA

-.- ,rotection of the rule of law %y the courts ?u#ge cannot against #irectl( to the statute 2efore !e examine some in#i%i#ual examples of ho! the courts ha%e #ealt !ith arguments relating to the rule of la!, it is !orth recalling some of the %asic constraints un#er !hich the syste$ of 2udge $ade law (i e the *common la!*) operate These constraints inclu#e the fact that the courts are una%le to protect rights that have %een recognised previously as important to the rule of la! if they are expressly a%olished %y an Act of ,arlia$ent An example is the Cri$inal <vidence ;6itness Anony$ity> Act !""@ !hich re$oved the co$$on law right of a cri$inal defendant to &now who was %earing witness against the$ %y replacing it with a regi$e in which witness anony$ity orders could %e used in limite# circumstances

/ncertain #ecisions ' some "u#ges ma( sho! #eference to go%t The nature of case law is, in a sense, always erratic and focused on responding to clai$s %y particular individuals for protection in their particular circumstances Individual 2udges in #ifferent cases $ay show undue deference to govern$ent or be unwilling to challenge political and pu%lic pressure. ? A F 4riffith, The politics of the "u#iciar( has argued that 2udges) %y virtue of their %ac&ground are: o Cecessarily conservative) not li%eral an# sho! ten#erness to!ar#s pri%ate propert( an# disli&e of trade unions, strong adherence to the $aintenance of order, distaste for $inority opinions, #emonstrations an# protests an# support for go%ernment secrec(

Argument: Court !illing to challenge as !ell 4riffith was writing in 67>>, in an era !hen conflict %etween trade unions) e$ployers and the govern$ent !as !i#esprea# in the streets an# in the courts +t is arguable therefore that this sweeping criticis$ does not reflect the su%se0uent willingness of at least so$e 2udges, regar#less of their personal bac4groun#s, to ris& political and popular disapproval %y protecting li%erties in the na$e of the rule of law. Gne of the earliest cases !here the courts #emonstrate# a willingness to challenge the power of govern$ent in this area !as <ntic& v Carrington (6>A5) A *0ing*s Cessenger* (a go%ernment in%estigating officer) attempte# to seiEe a suspect for se#itious libel un#er a !arrant !hich ga%e him s!eeping po!ers to seiEe papers an# boo4s

 )or# Cam#en highlighte# the fact that these powers were not 2ustified %y any statute or co$$on law power.

Court challenge the -ome Gffice :Cinister of Cro!n; 5ice(*s secon# proposition, focusing on the personal responsi%ilities of pu%lic officials !as illustrate# in 1 v =o$e Office (677=), !here an as(lum see4er !as #eporte# b( the -ome Becretar( before his application for "u#icial re%ie! ha# been complete# Although the applicant !as be(on# the "uris#iction b( this stage, the -ouse of )or#s hel# that the =o$e Secretary) in his official capacity) had %een guilty of conte$pt of court for failing to compl( !ith an or#er to return the applicant !hilst he !as still en route )or# .oolf state# that: o The ob"ect of the exercise is not so $uch to punish an individual as to vindicate the rule of law b( a fin#ing of contempt

Terrorist issue' struggle bt! court an# parliament Bince the terrorist attac4s on 66 Beptember 2066 on the /BA, one of the main areas of conflict bet!een the courts an# go%ernment has been o%er a relentless ti#e of legislation aime# at increasing the powers of the police and state !ith a %ie! to minimising the ris4s of terrorism +n A v Secretary of State for the -ome 5epartment (2005), the po!ers of the state to #etain non'/0 nationals !ithout trial un#er the AntiHterrorism, Crime an# Becurit( Act 2006 !ere consi#ere# This concerne# in#i%i#uals !ho !ere consi#ere# to be a securit( threat in the /nite# 0ing#om, but coul# not be #eporte# to their home countries because of the ris4 that the( !oul# face torture there

 The !""1 Act was challenged under the =RA on the grounds of discri$ination un#er Article 6= of the <C-R, %ecause it only applied to non *+ nationals. The =ouse of Lords accepted (b( 8:6 ' )or# -offmann #issenting) the right of the govern$ent to conclude that the pu%lic e$ergency 2ustified the detention, but rule# that it !as applie# in a #iscriminator( manner The govern$ent responded %y intro#ucing a 'control order' regi$e under the ,revention of Aerroris$ Act !""# !hich applied to *+ nationals as well as non *+ nationals. This regi$e has now %een replaced %y the Aerroris$ ,revention and Investigation 1easures Act !"11 !hich has replace# control or#ers !ith *terrorism pre%ention an# in%estigation measures* (T$+Cs) !hich are more limite# in scope an#, in particular, ha%e a t!o'(ear time limit

R (on the application of Corner -ouse Research> v (irector of the Serious 9raud Office (2008) .hat reason #i# the 5irector of the Berious ,rau# Gffice (B,G) gi%e in his press release for his #ecision to drop the investigation into allege# briber(1 o Representations ma#e to him concerning national and international security .hich t!o reasons #i# he state did not lead to the decision? o Co$$ercial interests and the national econo$ic interest +n )or# 2ingham*s summar( of the #ecision of the 5i%isional Court, !h( !as the allege# threat b( $rince 2an#ar significant1 o +t !as hel# b( the 5i%isional Court that su%$itting to a threat

would da$age the integrity of the cri$inal 2ustice syste$ .h( #i# )or# 2ingham #escribe the 5irector as *courageous* for not using the reason of *e%i#ential !ea4ness* for his #ecision1 o This reason would have %een accepted %y the (ivisional Court as sufficient and would not have %een so controversial politically. The 5irector of the B,G #i# not consi#er !hether a #ecision to #rop the prosecution !oul# affect national securit( if other countries learne# that the /nite# 0ing#om ha# gi%en in to the threat 6hy did Lord 'ingha$ not consider this i$portant? o The (irector was not re0uired %y the law or the facts to ta&e this issue into account, even though he was entitled to: CR<<5DI +nc % Fo%ernor Feneral (6786)

 5o (ou thin4 that the #ecision of the -ouse of )or#s strengthene# or un#ermine# the rule of la!1

-.# ,rotection of the rule of law %y ,arlia$ent +t is important to %ie! the role of ,arlia$ent in protecting the rule of law in the light of our #iscussion of parliamentar( supremac( in Chapter 9 The #octrine of parliamentar( supremac( gi%es the ultimate #ecision o%er !hether or not an Act of $arliament that conflicts !ith the rule of la! shoul# be passe#, !ith the courts ha%ing limite# po!ers of constraint The conse&uences of a clash %etween these two principles were discussed obiter in ?ac4son % A'F (2005) b( Lord Steyn: o In exceptional circu$stances involving an atte$pt to a%olish 2udicial review or the authorit( of the courts, Dthe courtsE $ay have to consider whether this is a constitutional funda$ental which even a co$plaisant

=ouse of Co$$ons cannot a%olish.

 )or# -ope, in the same case, state#: o It is no longer right to say that D,arlia$ent'sE freedo$ to legislate a#mits of no &ualification the rule of law enforced %y the courts is the controlling principle upon which our constitution is %ased. The extre$e circu$stances suggested %y Lord Steyn have not yet arisen an# it is difficult to envisage a govern$ent that would %e a%le to win support in the =ouse of Co$$ons and =ouse of Lords for any atte$pt to a%olish 2udicial review

-.8 ,rotection of the rule of law %y the Lord Chancellor .e sa! at Bection = 6 that s.1 of the Constitutional Refor$ Act !""# explicitly preserved the existing constitutional role of the Lord Chancellor. /nhelpfull(, the Act faile# to spell out !hat that role !as, although this omission perhaps reflecte# the #ifficult( of #efining it 5uring the #ebate on the Act, )or# ,alconer commente#: o .e all agree# that we do not want to change the Lord Chancellor's existing role in relation to the rule of law. o That role goes further than simpl( respecting the rule of la! in #ischarging his ministerial functions

o It includes %eing o%liged to spea& up in Ca%inet or as a Ca%inet 1inister against proposals that he %elieves offend the rule of law. o Ahat role does not re0uire hi$ proactively to police every act of govern$ent. o The role is not one that is enforceable in the courts )or# 2ingham has argue# instea# that the )or# Chancellor*s role in protecting the rule of la!, would no dou%t %e suscepti%le) in principle) to 2udicial review. Fi%en that $eetings of the ca%inet are held in private, the exact role in decision $a&ing of individual Lord Chancellors has %een hard to deter$ine an#, as a result, the courts have had no opportunity to consider it

,in# s.! of the Constitutional Refor$ Act 2005 an# list the factors that the ,ri$e 1inister $ay ta&e into account !hen appointing a )or# Chancellor experience as a minister of the Cro!n experience as a member of either -ouse of $arliament experience as a &ualif(ing practitioner experience as a teacher of la! in a uni%ersit( other experience that the $rime Cinister consi#ers rele%ant

-.: Su$$ary )or# 2ingham #escribe# the rule of la! b( reference to eight *sub'rules* o The la! must be accessible, clear an# pre#ictable o @uestions of legal right an# liabilit( shoul# normall( be #ealt !ith un#er the la! an# not b( #iscretion o The la!s of the lan# shoul# appl( e&uall( to all, unless there are ob"ecti%e #ifferences o Cinisters an# public officers must act in goo# faith, fairl(, for the purpose for !hich the po!ers !ere conferre#, !ithout excee#ing the limits of such po!ers an# not unreasonabl( o The la! must protect human rights o Fenuine ci%il #isputes must be resol%e# !ithout un#ue cost or #ela( o A#"u#icati%e proce#ures shoul# be fair o +nternational la! must be complie# !ith

Accessi%ility is enhanced %y greater pu%lic access to 'raw' law through !ebsites such as !!! legislation go% u4

Clarity of statute ma4ing is %ariable, !ith political influence sometimes lea#ing to hast( legislation $re#ictabilit( is enhance# b( the principle that legislation shoul# not ha%e a retrospecti%e effect O%2ective distinctions, !hich 2ustify the application of law %eing applied differently, inclu#e the test for criminal responsibilit( for chil#ren an# the treatment of mentall( #isable# people un#er the la! The re$edy of 2udicial review is a%ailable !here ministers fail to act in goo# faith, fairl(, !ithin their po!ers or reasonabl( The =RA is a &ey tool for protecting hu$an rights.

 The Civil ,rocedure Rules have li$ited the pro%le$ of delay in the ci%il "ustice s(stem, but the !ith#ra!al of ci%il legal ai# is increasing the costs for or#inar( litigants The 'content free' interpretation of the rule of law) descri%ed %y Ra3, emphasises the importance of the for$ of law and its procedures The 'content rich' interpretation, fa%oure# b( 5!or4in) attri%utes $orals and values to the rule of law. Lord 'ingha$'s eight su% rules fit best into the *content'rich* interpretation, although the( illustrate the fact that there is overlap %etween %oth interpretations

 (icey's three part definition of the rule of law has been %er( influential, although it is no! challenge# on a number of groun#s +t is as follo!s: o Do one is to be punishe# or suffer loss except for a #istinct breach of la! establishe# in the or#inar( legal manner before the or#inar( courts of the lan# Arbitrar( or #iscretionar( po!ers are to be exclu#e# o Do one is abo%e the la! <%er(one is sub"ect to the or#inar( la! of the realm <%er( official, from the $rime Cinister #o!n, is un#er the same responsibilit( for e%er( act #one !ithout legal "ustification, as for an( other citiEen o The general principles of the constitution are the result of "u#icial #ecisions #etermining the rights of pri%ate persons

 Critics of (icey) such as 5ennings, ha%e pointed to the widespread use of discretionary powers in the $odern *+ constitution through !hich %ital an# complex secon#ar( legislation is passe# +n a##ition, the fact that public officials are sub"ect to particular legal constraints #ue to their office has been highlighte# ,inall(, the i$portance of statute ;e.g. the =RA> in protecting the rights of individuals is co$pletely ignored in (icey's su$$ary ,rotection of the rule of law %y the courts has %een erratic since, b( its nature, issues are onl( #ealt !ith !hen an in#i%i#ual chooses to ta4e them to court The social %ac&ground of the 2udges has %een felt %y so$e critics (e g Friffith) to encourage an excessi%el( conser%ati%e an# cautious approach

 Cases such as <ntic4 % Carrington (6>A5) an# C % -ome Gffice (677=) ha%e #emonstrate# the courts* !illingness, in some circumstances, to challenge the power of govern$ent in or#er to protect personal liberties The clash %etween the protection of civil li%erties and the deter$ination of the govern$ent to i$pose greater restrictions in the na$e of preventing terroris$ has le# to man( cases +n A v Secretary of State for the -ome 5epartment (2005), the -ouse of )or#s accepte# the use of control or#ers but re&uire# #iscrimination against non'/0 nationals suspecte# of offences to be remo%e# Control or#ers ha%e since been replaced %y terroris$ prevention and investigation $easures with a $ore li$ited scope.

 +n R (on the application of Corner -ouse Research) v (irector of the Serious 9raud Office (2008), the =ouse of Lords refused to grant 2udicial review where the (,, dropped a prosecution of an arms compan( for corruption solel( on the groun#s that national security was threatened. ,rotection of the rule of law %y ,arlia$ent $ust %e considered in the light of the doctrine of parlia$entary supre$acy +n ?ac4son % A'F (2005), )or#s Bte(n an# -ope speculate# obiter about potential (extreme) circu$stances where the rule of law would %e seen %y the courts as 2ustified in stri&ing down Acts of ,arlia$ent that remo%e# fun#amental rights

 The role of the Lord Chancellor in protecting the rule of la! !as explicitl( preser%e# in s 6 of the Constitutional Reform Act 2005 Although not #efine# in the 2005 Act, the role has %een descri%ed as to spea& up in ca%inet and ,arlia$ent against proposals that might #amage the rule of la! Ahe first non lawyer Lord Chancellor in recent ti$es) Chris 4rayling) has recently %een appointed.