3.1.2 The Rule of Law Lecture

Introduction

The 'rule of law' is widely accepted to be a critical part of an effective constitution; its principle function is to constrain government action. It is a topic that has been subject to a significant amount of academic debate, so this module aims to summarise a number of the main academic arguments on the subject. There is a significant disagreement initially on how to define the rule of law. While some scholars have suggested that it should be 'content-free' dealing only with the form of law and procedural matters, others have suggested that it should be 'content-full' and should contain substantive elements of laws which should be required to comply with fundamental rights.

The rule of law has been referred to as a ‘wrapper’ that is placed around a bundle of constitutional principles. At one extreme, the rule of law is merely a rhetorical device or a political philosophy and its content is unimportant (the content-free view). At the other extreme, the rule of law determines the validity of law and so laws that conflict with its principles are invalid (content-rich view). In the UK, the rule of law functions in two ways: firstly, that courts should interpret legislation in a way that gives effect to the rule of law; secondly, that the rule of law determines the validity of government action and some legislation. This is how the rule of law functions, but opinions vary on what the concept known as the rule of law means.

A. The History of the Rule of Law

In the late Roman period, the view was established that royalty was above the law and subject only to the law of God and not to other men. The path to the institutionalism of the rule of law advanced and then at times was weakened. The Magna Carta 1215 enshrined the principle that the King was not above the law. Barons demanded that King John accept the Charter after a period of domestic unrest due to the King's focus on foreign war and his raising of taxes to finance the war with France. The final version of the Magna Carta provides that:

  • No bailiff should prosecute without producing witnesses in evidence;
  • Lawful imprisonment or exile requires judgement by one's peers in accordance with the law of the land;
  • Right or justice cannot be denied to delayed;
  • Knowledge of the law must exist before it can be enforced;
  • Restorative justice should exist where one’s land or liberties are removed without a legal sentence of one's peers;
  • Unjust and illegal that the King had imposed should be repaid;
  • No one is above the law including the clergy or laity as far as it pertains to them.

In Prohibitions del Roy (1607, published 1656 (1572-1616 12 Co Rep 63) Sir Edward Cooke asserted that the King could not act as a judge using his own reason to reach decisions, but should be tried by judges who applied the law to the facts.

Petition of Rights 1628 was a petition from the Barons to the King to remind him of the principles of the rule of law established in the Magna Carta. The Petition of Rights extended the rule of law and due process to encompass some implied terms of the Magna Carta. The principles encompassed within the Petition of Rights include:

  • No freeman should be imprisoned or removed of his liberties without appropriate judgement by his peers, within the due process of law;
  • No man should be ejected from his land, imprisoned, or disinherited without being brought to answer by due process of law;
  • Despite these principles, many people had been brought before the King and imprisoned without being brought before the justices, these individuals were just detained at the Kings command and returned several times to prison without being charged;
  • No individual should be sentenced to death without being judged according to the principles of the Magna Carta and the law of the land. The King has imposed martial law and put individuals to death without due process.

The right of Habeas Corpusis an essential feature of the rule of law, and is not explicitly mentioned in the Magna Carta but subject to much future legislation. It matured in legal terms in the Petition of Right. It requires a detainee to be brought before the court, so the legality of their detention can be determined and if not, the prisoner must be released.

The Habeas Corpus Act 1679 specifically legislated for the fact that a detainee was entitled to be brought before a court to subject his or her detention too judicial and hence legal scrutiny.

The Bill of Rights 1689 stated that law could not be made, repealed or suspended without the will of Parliament. The Crown could not manipulate the court system, and subjects were now able to bring an action against the Monarch. The Monarch and courts could not subvert the requirements of habeas corpus. The Bill also sets out the basic and fundamental principles that determine the operation of the rule of law.

The scope of the rule of law remained vaguely defined during this period. Although procedures were delineated, questions remained. Writings of theorists and scholars from the late 19th century onwards have gone some way to elaborating upon the details of its definition.

B. Defining the Rule of Law

Throughout the 20th century, the rule of law has become a term of widespread academic debate, court judgments and parliamentary debates. It is referred to in section 1 of the Constitutional Reform Act 2005, the preamble to the European Convention on Human Rights 1950 and the preamble to the Treaty on European Union. 

Lord Bingham ‘The Rule of Law’ (2007) 66 CLJ 67, 69 argued that

‘The core of the existing principle is … that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts’.

Lord Bingham subsequently defined 8 sub-rules:

Law should be accessible, clear and predictable;

  1. Questions of legal right and liability should be decided by application of the law;
  2. The law of the land should apply equally to all, except when objective difference requires differentiation;
  3. Public officials should exercise their powers in good faith, and not exceed their powers;
  4. The law must protect fundamental rights;
  5. A method should be provided, at reasonable cost, to resolve civil disputes;
  6. Adjudicative procedures must be provided by the state should be fair;
  7. The rule of law requires the state to comply with its obligations in international law.

This list was adopted by the European Commission on Democracy Through Law in 2011

Exam Consideration: Lord Bingham's 8 principles of the rule of law is a good starting point for an essay question on the Rule of Law.

B. Content Free or Content Rich?

There remains a number of important questions regarding the ‘rule of law’, one important one being whether it should be content free or content rich?

Joseph Raz, ‘The Rule of Law and its Virtue’ (1977) 93 Law Quarterly Review, 195, 210-11, argues for the former view. He argues that the rule of law should only be about the form and procedures by which law is created. There is no content for the rules prescribed within this view. Raz offered a number of principles for the rule of law:

  • All laws should be prospective, open and clear;
  • Laws should not be subject to constant change;
  • General and clear rules should be applied to the creation of laws;
  • The judiciary should be independent;
  • Decision making by public officials should follow principles of procedural fairness;
  • The court should have review powers over decisions;
  • Courts should be easily accessible;
  • Crime prevention agencies should not have discretion to pervert the law.

Raz argues that the rule of law is a negative concept, which is merely designed to minimise the harm to freedom and dignity which the law may create in the pursuance of its goals.  The rule of law is meant to enable the law to promote social good. A content-free concept of the rule of law thus does not specify what the substantive rules should be, just that the process of the creation of law should be carried out with procedural fairness. Law can be discriminatory, but if it is created following normal Parliamentary procedures, then it is following the ‘rule of law’ according to Raz’s concept.

A content-free rule of law takes no account of social inequalities. As stated by Anotole France in Bon Mot ‘The law in its majestic equality, forbids the rich and poor alike to sleep under bridges, to beg in the street, and to steal bread’. When the rule of law is applied in this content-free manner, it creates procedural fairness, while the law still functions to preserve inequalities. France implies that laws can be applied to everyone, but in reality they are only applied to the poor as only the poor will need to steal food, sleep under bridges of beg in the street.

Paul Craig, in ‘The Rule of Law’ in Relations between the Executive, the Judiciary and Parliament, House of Lords Constitution Committee, 6th Report 2006-07, HL 151, p.101 explains the rationale for the ‘content-free’ rule of law. Craig argues that the rule of law should have a function that is independent of the necessity for law to incorporate 'good laws'. There is already a wealth of literature covering the discussion of the right, which should subsist within a just society; these should remain independent from the concept of the rule of law. Arguments about a just society or the preservation of individual rights are certainly worthy; however, these should be made independently of arguments regarding the rule of law.

Ronald Dworkin, 'Political Judges and the Rule of Law' in A Matter of Principle (OUP, 1985), pp1-12, supports the alternate view, challenging the content-free idea of the rule of law. Dworkin refers to the 'rule book' conception of the rule of law, in which substantive justice is an independent ideal and are in no sense part of the ideal of the rule of law. He distinguishes this from the 'rights' conception of the rule of law. It assumes that citizens have moral rights and duties with respect to one another and political rights with respect to the state as a whole. This concept of the rule of law does not distinguish between the rule of law and substantive justice; instead, it requires that as part of the rule of law that rules within the rulebook encompass and enforce moral rights. This right’s conception is more complex than the 'rulebook' conception. Compliance with the rulebook on its own is clearly not sufficient for justice, although a breach of the rulebook theory of the rule of law is likely to lead to injustice. However, a society that accords with the rights conception of the rule of law is likely to be a just society.

C. Dicey and the Rule of Law

A.V. Dicey, Introduction to the Study of Law of the Constitution (1885; 10th edn., Macmillan & Co., 1959) pp.187-95. Dicey writing about the rule of law in the 19th century still has significance in today's debates. For Dicey, the rule of law was a particularly British achievement, marking out the United Kingdom as superior to other countries. For Dicey the supremacy of the rule of law has three distinct though related conceptions.

  • No individual can be punished except through the process of law and the courts.
  • No one is above the law; this includes the Prime Minister who is subject to the ordinary law in the same way that other citizens are.
  • The constitution is pervaded by the rule of law, since general principles of the constitution are the results of judicial decisions which determine the rights of private citizens.

Sir Ivor Jennings (1903-1965) was a Fabian socialist who approved of government regulation of business, social security provision and disagreed with Dicey's disagreements with the interventionist state. In The Law and the Constitution, (1933), Jennings criticised Dicey's work arguing that it failed to deal with the powers of government. In his view Dicey was more concerned with constitutional relations between Great Britain and Northern Ireland that relations between poverty, disease and increased industrialisation. Dicey's focus was only upon tort law and not public law; Jennings questioned Dicey's narrow focus of the meaning of the rule of law due to its focus only on the fact that public officials can be sued by people aggrieved by a tortious act or omission in the act of their duty. Jennings argued that 'this is a small point upon which to base a doctrine called by the magnificent name of "rule of law"' (The Law and the Constitution, p.312).

Exam Consideration: It is useful to spend some time identify and stating the key features of a legal system based on Dicey's conception of the rule of law and in particular the essential points of Dicey's theory that government should be carried out according to the law.

Despite his critics, Dicey's three propositions are still highly influential and referred to by judges in the 21st century. 

  • In R v Rimmington  [2006] 1 Cr App R 17, [2006] 2 All ER 257 Lord Bingham stated that conduct that is forbidden by law should clearly be indicated as such and that no one should be punished for something that was not a criminal offence when the act was committed.
  • In Sharma v Brown-Antoine [2006] UKPC 57; [2007] 1 WLR 780 (TT), Lord Bingham and Lord Walker, sitting in the Privy Council, stated that no individual should be immune to the criminal law which should apply to all individuals alike. High office cannot excuse conduct that would lead to prosecution; based on the principles of supremacy of law, equal subjection to the law and the common law relationship between the government and the citizen.

Exam Consideration: Consider how Jennings' and Dicey's arguments can be reconciled. Perhaps both arguments are valid as they are both addressing the issue of the rule of law from different angles.

D. Is the Rule of Law a Useful Concept?

John Griffiths (1918-2010) 'The Political Constitution' (1979) 42 Modern Law Review, 1, 15; Individual rules of law may be good or bad, but 'the law' is undeniably good and should be upheld to prevent chaos. The Rule of Law has been misused to justify upholding the status quo. It is used to criticise those who state they are against the Monarchy, or a particular Law Lord. The Rule of Law has a correct function in ensuring that public authorities do not exceed their powers and that criminal offences are dealt with in a fair and just manner; but the concept has also been misused to preserve legal and political institutions, which are no longer relevant.

Martin Loughlin, The Rule of Law in European Jurisprudence' Study 512/2009 (Venice Commission 2009). Since law is acknowledged to be a human creation, it cannot be placed above the human intention. Laws themselves do not rule, since ruling requires action and laws cannot act. He argues that although a coherent formulation of the general concept of the rule of law can be devised, this formulation in entirely unworkable in practice. As a result, the rule of law must not be considered as amounting to a foundational concept of public law. Its main strength is as an aspiration, but it must be recognised that its direction remains an essentially political task.

Each country has its own institutions, which protect the rule of law; in the UK, this is done so by the three branches of government: the Judiciary, Parliament and the Government.

E. Judicial interpretation of the rule of law

Historically, constitutional lawyers have extolled the virtues of the UK's adherence to the Rule of Law. In countries with codified constitutions, judicial responsibility for the rule of the law is their power to interpret, and apply terms of the constitution. In the UK, without a codified constitution, the judges apply the common law to protect the rule of law.

The courts have interpreted the rule of law through a selection of cases that have examined the legality, the irrationality or the procedural impropriety of the actions of the executive or public bodies, or whether their actions conform to the Human Rights Act 1998. The main principles of the rule of law, along with judicial interpretation are considered here.

i. No one must be punished by the state except for a breach of the law

Punishment without trial has been brought back into focus due to anti-terrorism legislation, including Section 1 of the Anti-Terrorism, Crime and Security Act 2001 (now repealed).  In A and others v Secretary of State for the Home Department [2004] UKHL 56, the appellants were detained without trial on grounds that they were suspected of involvement in terrorist activity and were alleged to be a danger to the public. The appellants claimed that if they were returned to their home countries, they would be killed and could not be deported. The Home Secretary certified that the detainees could be held indefinitely without trial.

Lord Bingham of Cornhill, in the House of Lords: the appellants were all foreign non-UK nationals. None had been subject to criminal charge. The right to liberty exists within Article 5(3) European Convention on Human Rights (ECHR). The UK had sought to derogate from the ECHR under Article 15, claiming that a 'state of emergency' existed in the light of the terrorist attacks of September 11, 2001. The House of Lords found that indefinite detention without trial was always illegal; its justification had to be utterly exceptional. Since the legislation was discriminatory against non-nationals, it was not justifiable.

Exam consideration: UK governments have used the interests of 'national security' and public safety in response to terrorism in order to attempt to circumvent the rule of law on numerous occasions, particularly since the events of September 11, 2001. Consider the competing interests of 'national security' and the rule of law, which should take precedence? Be prepared to justify your answer.

ii. Government under law: equality before the law

Key Case: In Entick v Carrington (1765) 19 St Tr 1029, Entick was alleged to be the author of seditious writings. Agents of the King, acting under the warrant of the Secretary of State broke into Entick's house and removed his papers. The act was found to be common trespass, as it was not justified by any specific legal authority; the Secretary of State was found liable in damages to Entick. Lord Camden CJ held:

By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can ever set his food upon my ground without my licence, but he is liable to an action... If he admits the fact, he is bound to shew by way of justification, that some positive law has empowered or excused him.

The defendants claimed they were acting under the authority of the Secretary of State, through the power of the Constables Act 1750. The court found that the Secretary of State did not have power to issue such a warrant, reiterating that state officials needed to have legal power to act and must abide by the law.

In M v Home Office and another [1994] 1 AC 337 HL, M was a citizen of Zaire, he sought political asylum in the UK; his claim was rejected as was his claim for judicial review of the decision. He was informed he would be deported, but disputes between the Secretary of State and the Home Office led to his deporting being order, then postponed, then reordered with neither side appearing to be aware of their own legal powers. The Home Secretary was eventually held to be in contempt of court. The principle that the executive is subject to full judicial oversight was upheld in this case.

In R v Mullen [2000] QB 520, CA the appellant had been unlawfully deported to the UK to face criminal charges, Mullen claimed he had been forcibly brought to the UK, rather than extradited according to the law. The case reached the Court of Appeal (CA) to decide whether his unlawful extradition rendered his final conviction for conspiracy to cause explosions. The CA held that in order to uphold the rule of law and administration of justice, his conviction must be quashed. The case confirms that whatever the crime the appellant was accused of it does not justify the state acting outside the law.

iii. Individuals' rights are protected through the ordinary law and the ordinary court system

The process of judicial review allows an individual to challenge a decision of the executive through the courts.

Key Case: In R (on the application of G) v IAT and another; R (on the application of M) v IAT and another [2005] 2 All ER 165, CA, G and M had had their asylum applications rejected by the Secretary of State and sought to appeal those decisions. Their appeals to the Adjudicator and IAT were also rejected. The appellants no longer had access to judicial review proceedings and now had recourse to a review of written submissions by a High Court judge. The latter process replaced under the Asylum and Immigration [Treatment of Claimants] Act 2004, section 26(5)(a), the previous judicial review proceedings in asylum cases. The CA found that although the statutory regime was not as extensive as judicial review, it did provide access to judicial scrutiny and oversight of judicial action. It was not found to be a breach of Article 6 (the right to a fair trial) of the ECHR.

iv. Legal certainty and non-retrospectivity

The rule against the retrospectivity of criminal law was upheld in the joint cases of R v Rimmington; R v Goldstein [2006] 2 All ER 257, HL, in this case is was the legal certainty of the common law that was in question.  The appellants submitted that the crime of causing public nuisance, which is governed in common law and not statute, is too uncertain and lacks the predictability. The court found that within the common law the issue of judicial precedent is an indispensable foundation upon which to uphold legal certainty. The requirement was for sufficient rather than absolute certainty, which the HL upheld was provided by the case by case basis of judicial precedent.

v. Fair hearing by an independent judiciary

In Matthews v Ministry of Defence [2003] 1 All ER 689, HL a former member of the Navy claimed personal injury as a result of exposure to asbestos during his time as a member of the armed forces between 1955 and 1968. The MoD claimed it was not liable due to section 10(1) Crown Proceedings Act 1974 gave immunity the Crown, although repealed in 1987. The HL held that section 10(1) 1974 Act did not offend against the right to a fair trial under Article 6 ECHR, because this did not bar the courts from considering the case; the Crown was permitted to limit liability for its tortious acts.

In R (on the application of Anderson) v Secretary of State for the Home Department [2002] 4 All ER 1089, HL A was convicted of murder and given a mandatory life sentence, which permits the prisoner to be considered for release on licence. At this time, the Home Secretary held the power to set the tariff. Lord Steyn held that "the power of the Home Secretary in England and Wales to decide on the tariff to be served by mandatory life sentence prisoners is a striking anomaly in our legal system"[para 51]. He rules that an accused may be tried and convicted only by the courts, on the basis of the rule of law since 1688. The tariff had been left in the hands of the Home Secretary, but this is subject to review by the courts as to whether the executive had breached Article 6 in affording the tariff.

vi. The rule of law and substantive judgments

Traditionally judicial review has been restricted to the legality, rationality, and procedural propriety of the executive's action, omission rather than the review of the content of its decision. The following case considers whether judicial review should not review the substance of the executive's decision in matters related to human rights.

In R (on the application of Al Rawi and others) v Secretary of State for Foreign and Commonwealth Affairs and another [2006] EWCA C 1279, the CA held that the role of the courts has expanded in human rights cases to consider the proportionality of the decision, as well as its strict compliance with the law. This was a consequence of the Human Rights Act 1998.

F. The UK Legal System and the Rule of Law

Exam Consideration: An exam question may require the writer to assess the continuing value of the rule of law in contemporary legal debates. You should be aware of recent legal issues, which bring into question the applicability of Dicey's (and other authors) conception of the rule of law.

Arbitrary and wide discretionary powers

Statutory provisions often afford public bodies the discretion to act in ways they consider to be reasonable. This discretion can be wide and arbitrary, which provides a threat to the rule of law. This occurs frequently in relation to issues of national security and immigration issues regarding suspected terrorists.  The following statutory powers are relevant here:

  • Section 3(5)(a) Immigration Act 1971 provides that an individual may be deported if the Secretary of State deems their deportation conducive to the public good.
  • Section 21(1) Anti-terrorism, Crime and Security Act 2001 permits the Secretary of State to deport terror suspects if they believe the person's presence is a threat to national security

In SSHD v Rehman [2003] 1 AC 153, the provisions of the Immigration Act 1971 as amended by the British Nationality Act 1981 were considered. The HL considered whether it was necessary to engage in, promote, or encourage violent activity targeted at the United Kingdom, and that a high degree of probability that the applicant was a threat to national security was necessary before she or he could be deported. The HL held:

  • The Secretary of State had discretion to determine what was conducive to the public good;
  • The Secretary of State could take an overall view;
  • Actions against other states which threaten the national security of the United Kingdom can also be taken into account;
  • The standard of proof of specific facts is based on the ordinary civil balance of probability.

In R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60, the Serious Fraud Office was investigation allegations that British Aerospace paid enormous bribes to Saudi Arabian officials while negotiating aircraft sales. The Saudi's threatened to stop cooperating with Britain in anti-terrorism measures if the investigation was not halted and to withdraw from the deal. The Divisional Court held that the SFO's decision to stop the investigation was based upon threats and incompatible with the rule of law. The HL however, allowed the SFO a very broad discretion to consider the possibility of the threat to British lives and national security if Saudi Arabia failed to carry on its intelligence sharing in relation to the 'war on terror' and this was a relevant consideration in the exercise of his discretion.

Exam Consideration: This was a controversial decision, as it appears to undermine the rule of law completely and was a response to threats from the Saudi government. James Wilson, in Halsbury's Law Exchange refers to this decision as 'The day we sold the Rule of Law': http://www.halsburyslawexchange.co.uk/10541/

Privileges, immunities and the rule of law

Equality before the law is potentially undermined by special powers, privileges and immunities from ordinary law that Parliament has granted.

  • Article 9 of the Bill of Rights 1689 affords MPs absolute immunity from actions in the tort of defamation arising out of anything said or done in the course of parliamentary debate or proceedings.
  • The International Organisations Act 2005 provides immunities and privileges on a number of international organisations and bodies, as well as certain categories of individuals connected to them.
  • The Trade Union and Labour Relations (Consolidation) Act 1992 confers a number of immunities upon Trade Unions.
  • The Diplomatic Privileges Act 1964 brings the 1961 Vienna Convention on Diplomatic Relations into domestic UK law and confers immunity from prosecution upon diplomatic staff and their families.

Exam Consideration: Consider what the rationale may be for conferring certain immunities in this way, do you agree?

The judicial extension of the criminal law

Dicey argued that 'a man may with us be punished for a breach of law, but he can be punished for nothing else'; hence the courts should not be able to extend criminal offences laid down by parliament.

In Shaw v DPP [1962] AC 220, Shaw published a directory, which contained the names and addresses of female sex workers. He was charged with conspiracy to corrupt public morals; conspiring with advertisers. After being convicted he appealed on the grounds that there was no such offence as 'conspiracy to corrupt public morals'. The HL held (Lords Simonds for the majority) that there was a residual judicial power to enforce the supreme and fundamental purpose of law, which in this case included the protection of safety, order and moral welfare of the state against novel and unexpected attacks. Lord Reid in dissent argued it was contrary to the rule of law for the judiciary to extend criminal offences on public policy grounds.


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