3.1.2 The Rule of Law Lecture
The 'rule of law' is widely accepted to be a critical part of an effective constitution; its principle function is to constrain government action. There is a significant disagreement initially on how to define the rule of law.
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.
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 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.
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 in ‘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;
- Questions of legal right and liability should be decided by application of the law;
- The law of the land should apply equally to all, except when objective difference requires differentiation;
- Public officials should exercise their powers in good faith, and not exceed their powers;
- The law must protect fundamental rights;
- A method should be provided, at reasonable cost, to resolve civil disputes;
- Adjudicative procedures must be provided by the state should be fair;
- 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
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 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. 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.
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.
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 argues that the rule of law should assume 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.
C. Dicey and the Rule of Law
A.V. Dicey inIntroduction to the Study of Law of the Constitution (1885; 10th edn., Macmillan & Co., 1959), pp.187-95, wrote that 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 criticised Dicey's work arguing that it failed to deal with the powers of government. Dicey's focus was only upon tort law and not public law
Despite his critics, Dicey's three propositions are still highly influential and referred to by judges in the 21st century.
D. Is the Rule of Law a Useful Concept?
John Griffiths (1918-2010) 'The Political Constitution' (1979) 42 Modern Law Review, 1, 15; 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. The rule’s 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
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  UKHL 56, it was held indefinite detention without trial was always illegal; its justification had to be utterly exceptional.
ii Government under law; equality before the law:
- In Entick v Carrington (1765) 19 St Tr 1029, Lord Camden CJ held: ‘By the laws of England, every invasion of private property, be it ever so minute, is a trespass.’
- In M v Home Office and another  1 AC 337 HL, the principle that the executive is subject to full judicial oversight was upheld.
- In R v Mullen  QB 520, it was confirmed that whatever the crime an appellant is 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.
- In R (on the application of G) v IAT and another; R (on the application of M) v IAT and another  2 All ER 165, the CA found that an alternative statutory regime, although not as extensive as judicial review, 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  2 All ER 257, HL.
v Fair hearing by an independent judiciary
- In Matthews v Ministry of Defence  1 All ER 689, HL the HL held that a section of a statute did not offend against the right to a fair trial under Article 6 ECHR, because it did not bar the courts from considering the case.
- In R (on the application of Anderson) v Secretary of State for the Home Department  4 All ER 1089, HL the mandatory murder tariff was left in the hands of the Home Secretary, but this was 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.
- In R (on the application of Al Rawi and others) v Secretary of State for Foreign and Commonwealth Affairs and another  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
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.
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.
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.
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