On highlight of the above abstract this essay will focus and discuss the key points on The Rule of Law. Firstly by explaining the history and the background behind it, secondly by defining the Rule of Law (R.O.L) and what it means today and the different views of others. The next point will examine the government according to the law and the limits of power given to a minister. The essay will then review The Separation of Powers and the functions within it before finally moving onto the Judicial Review and the grounds associated with it.
Background and History
In clause 39 of the Magna Carta it states “No Free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land”. Clause 61 gave authorization to an elected body to determine the vote what redress the king must provide when the king offends “in any respect against any man” At this point the Magna Carta recognised the R.O.L. in England thus the monarchy must also obey the law of the land this also limited how the monarchy could change the laws of the land.
Constitution Law in the UK is a body of legal and political rules and arrangements concerning the government of the country. The United Kingdom does not have the constitution in the narrow sense meaning the British Constitution is unwritten and flexible.
What does the R.O.L mean?
Definition – “The Rule of Law” (R.O.L) is a legal principle that states no person is immune to the law.
AV Dicey’s theory of the Rule of Law is commonly known and recognised, this theory is separated into three parts. The views formulated the rules around the supremacy of law over arbitrary and wide discretionary powers, equal subjection to the law and the origins of constitutional law in private law. A.V Dicey: – “Law predominates rather than the influence of personal arbitrary power, the exercise of the wide discretionary authority and arbitrary prerogative powers by the executive is excluded and that a person may be punished for a breach of law, but for nothing else”.
In R v Rimmington; R v Goldstein Lord Bingham stated the above points by dicey with more clarity “conduct forbidden by law should be clearly indicated so that a person is capable of knowing that it is wrong before he does it and that no one should be punished for doing something which was not a criminal offence when it was done.” The Second part focuses on equality, meaning everyone is equally subjected to the law. Public authorities must follow the same laws as the private authorities and individuals are to follow. The last part states principles of constitutional law are not laid down by higher constitutional code to which ordinary law must reform. The constitutional law comes from ordinary case law determining rights of individuals and the principles of law determining the legal powers and liabilities of the crown are based on judicial extension of the principles of private law.
Although there are various views on Dicey’s Rule, the points which are clear that the laws should be clear, prospective, specific and certain to all and the rule should be made for everyone to follow.
Different views on the meaning of Rule of Law.
There a various views on what the rule of law actually means by a variety of people. One of the more critical views made by Sir Ivor Jennings who criticised Dicey’s views of liberty, certainty and the limitation of discretionary powers inconsistent with the twentieth century’s idea of social justice which involved the extension of discretionary powers. Joseph Raz expressed that the R.O.L can be formulated as any political ideal to be realized in legal terms. Meaning Totalitarian regime may claim to have a R.O.L. Freidrich Von Hayek stated that the R.O.L means that the government in all its action is bound by rules fixed and announced before hand. Von Hayek expressed “the rules make it impossible to see the fair certainty how the authority will use its coercive powers in given circumstances, and to plan one’s individual affairs on the basis of this knowledge”.
Government According to the Law
Dicey’s views were based on the constitutional principles in Entick v Carrington and Wolfe Tone In particular Dicey used the Habeas Corpus Act 1679 and the cases involving the writ of Habeas Corpus (a court order used to challenge the legality of imprisonment) to illustrate the principle of the supremacy of the law.
Government according to the law means public bodies exercising statutory duties must do what the statute requires them to do. Illustrated in Stroud V Bradbury, The courts have a duty to correct any abuse of power by the executive, leaving judges free to exercise this jurisdiction also Illustrated in Congreve v Home Office. This principle is very important and is connected to Dicey’s view and means that the judiciary enforces the law against individuals, institutions and the executive including any individuals representing the executive. However judges cannot enforce the law against the monarch.
If a litigant complains that the executive has breached a duty, then they can sue the crown as an executive bringing an action against the minister responsible for the department that may be involved. Remedies are granted against a minister (in this official capacity) to enforce the law by the court. If the Minister has broken the law purposely, the litigant can sue the minister on the minister’s personal capacity. The court may exercise coercive powers in proceedings for contempt of court. Illustrated in M V Home Office  here the decision had to be made whether the courts had jurisdiction to bring proceedings against the Home secretary for contempt of court. Held -the courts had jurisdiction.
In R Secretary of State for the Home Department ex p the Firebrigades Union Lord Mustill stated “The role of the courts is to make sure that powers are lawfully exercised by those to whom they are entrusted not to take those powers into their own hands and exercise them a fresh and that a claim a decision under challenge is wrong leads nowhere, except in the rare cases where it can be characterized as so obviously and grossly wrong as to be irrational, in the lawyer’s sense of the word, and hence a symptom that there must have been some failure in the decision making process”.
The Constitutional principle of the R.O.L was recognised under S1 Constitutional Reform Act 2005 provides that the act does not adversely affect the constitutional principle of the rule of law.
Arbitrary and Wide Discretionary Powers
If in a Statute it states that something may as opposed to must, be done is known as a discretionary power. If a statement is issued that the secretary of state minister or other public authority may do something if or as seen fit or reasonably believing something has happened or is going to happen is known as a subjective discretion. This type of discretion can be wide to the point of seeming to be arbitrary. Illustrated in Liversidge v Anderson
The extension of the Criminal law by the judiciary
Dicey’s view was that “a man may with us be punished for a breach of law, but he can be punished for nothing else” simplifying the courts not be able to create or extend criminal offences. Illustrated by the House of Lords in Shaw v DPP Lord Bingham simplifies this in R v Rimmington; R v Goldstein “if the ambit of a common law offence is to be enlarged, it must be done step by step, on a case by case basis and not with one large leap.
Separation of Powers
There are three functions of government and three equivalent organs of government. The three functions are the legislative, executive and the judicial function. The Legislative function is the law making function. The Executive function is a administrative one here it gives effect to and enforces the law as well maintaining order; promotes social and economic welfare, manages public services, conducts the external relations of the state, forms policy, initiates legislation and manages routine services. The Judicial function is applied where the law is breached. This function may be used where the law may need interpreting or applying, resolving any disputes, determining any punishments and providing the correct remedies. The judiciary consists of judges from all courts across the United Kingdom and are categorized as the legislative executive and judiciary.
The Separation of Powers means that the same persons should not form part of more than one of the three organs in government, one organ of government should not control or interfere with the work of another and one organ of government should not exercise the functions of another.
Montesquieu formulated the political principle of the separation of powers, which was based on John Locke’s philosophy. Lord Diplock in Duport Steels Ltd V Sirs stated “the British Constitution is firmly based on the separation of powers”. Thus what Lord Diplock is saying is that the powers are made by Parliament and the Judiciary simply interpret them. In the case of the above the separation of powers was used too distinct the legislative and judicial functions with an analysis of keeping the element of judiciary within bounds.
Public bodies may be examined by a judge from the High court over any Lawfulness decisions made. Judicial review is available where no right of appeal exists or where such rights are exhausted. However if a decision may be wrong this does not rule out a judicial review claim. Unless the decision made is wrong that the reasonable public body could have reached it. The claimant must bring the claim forward within narrow technical grounds. These grounds are known as Illegality Irrationality and Procedural Impropriety. Judicial Review cannot be used to reverse or overrule a decision already made by a higher power.
Basic Doctrines of Judicial Review
A claimant may ask a judge to review the lawfulness of a public body’s decision. However before the court does this they will look at how the public body had reached the decision. Although the court has the jurisdiction to examine the record of public body proceedings a defendants decision maybe quashed if there are mistakes on the records. However, it can be questioned whether a public body had the power to make such a decision. The court is entitled to look at all aspects of the decision making process from the finding of facts, to the extent of the public body’s statutory powers. If an appeal process is available then the public body may use this if the wrong decision is concluded. The judicial policy has been to widen the meaning of judicial error to the point where any error of law which materially influences a decision of a tribunal may be subject to judicial review. The Supervisory jurisdiction however cannot be excluded by a provision of an Act of Parliament unless it is the open intention of the legislature to do so.
Grounds for Judicial Review
As mentioned earlier in the essay there are 3 grounds for Judicial Review, The first is known as Illegality, The Grounds of Illegality include ultra vires, improper propose, irrelevant considerations, lack of evidence and unlawfully failing a discretionary power.
Ultra Vires is where the interpretation of the words of a statute is done to determine what the public body can actually do. Illustrated in Attorney General V Fulham Corporation Public Bodies may exceed powers given to them. However this is incorrect and is deemed unlawful. Statutes may express public bodies may do something. This is known as a discretionary power, this power may be used depending on the nature of the claim by the public body this may result the public body to act or refuse to act. Statutes may also provide power to the public body if the secretary of state deems this to be necessary known as a subjective discretion.
A public body must exercise discretionary powers within its purpose. If a statute clarifies discretion must be exercised correctly within its use, the court will treat this purpose as an exhaustive. If the discretion is used for different purposes then this will be deemed invalid by the court. Illustrated in Congreve v Home Office, however If the Statute does not clearly specify the purposes for the discretion that may be exercised the court will look for implied restrictions. Powers must not be used for penalizing conduct, promoting any political and moral views of the person making the decision and to gain any financial advantage.
Lord Reid on the Grounds for Judicial Review: British Oxygen Co Ltd v Minster of Technology “There are two general grounds in which the exercise of an unqualified discretion can be attacked. It must not be exercised in bad faith, and it must not be so unreasonably exercised as to show that there cannot have been any real or genuine exercise of the discretion. But apart from that if the minister thinks that policy or good administration requires the operation of some limiting rule, there is no stopping him” This explanation, basically states that under the grounds of Irrationality there should not be unreasonableness and that powers should be exercised reasonably.