The rule of law
The rule of law is one of the fundamental concepts or principles of the constitution. The concept is of great antiquity and can be traced to Aristotle (384-322 BC). The essence of the concept is that-
- society must be governed by law and
- that all must. be equally subject to the law.
In Western liberal democracies, the rule of law—-
- plays a central role,
- insisting not only that citizens obey the law and that disputes are settled through law, but also that government and all public officials act according to law and are accountable to the law.
However, the rule of law has been interpreted in many different ways and this introduces a complexity. We will look at these differing meanings briefly before focusing on the interpretation given by the 19th century constitutional authority Albert Venn-Dicey (1835-1922).
Differing interpretations of the rule of law
- The rule of law may be understood in several ways.
- To some theorists
it is a philosophical, concept which dictates that-
1. law must have some higher meaning laid do n by God or must take the form of `natural law’, which humans can discern through the use of their rationality and
2. which guides the content of man-made law.
- For others the rule of law is-
an overtly political concept. In Marxist theory,
Ø the rule of law is a false ideology which„lulls people into thinking that law is both necessary and good,
Ø while in fact the concept masks the reality that law protects the interests of the privileged classes at the expense of the masses.
- By contrast, under traditional Oriental thought, the reliance on law to regulate interests and to resolve disputes represents a breakdown in social relationships which should ideally be governed by-
1. mutual trust and
rather than formal law.
- In Western industrialised societies characterised by democratically elected legislatures and accountable governments, the rule of law is generally accepted as insisting that –
1. law is generally obeyed by all citizens and
2. that all public bodies and officials, irrespective of rank and power, are accountable to the law.
These contrasting interpretations force us to recognise that-
a)not only is there no one uniformly agreed meaning given to the rule of law, but also
b)that the substance of the rule of law is intimately connected to the form and structure of the political system within which it resides.
The concept of responsible government
- In democratic states, eligible citizens elect a government and other Members of Parliament to represent their interests in Parliament.
- For government to be conducted under the law it is essential that there are both
1. judicial and
2. parliamentary procedures
which ensure that-
a) government only uses those legal powers which have been conferred upon it and
b)that the government is accountable to the people through Parliament. Judicial review provides the procedure through which any allegedly unlawful use of power by government and other public bodies is tested and if necessary corrected.
- Parliamentary procedures, provide a number of avenues through which the government is held accountable.
A.V. Dicey and the rule of law
Writing in the late 19th century at a time before Parliament became the principal law-maker and much law was judge-made (the common law), Dicey interpreted the rule of law to have three principal aspects, namely that:
1) no punishment may be inflicted other than for a breach of the law
2) irrespective of rank and status all are equal under the law
3) rights and freedoms are best protected under the common law (rather than by a formal Bill of Rights).
While much criticised, Dicey’s views continue to have relevance. Each of Dicey’s three aspects needs to be considered carefully.
1.No punishment may be inflicted other than for a breech of the law
- We mean, in the first place, that no man is punishable or can be’ lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.
- In this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary or discretionary powers of constraint… It means-
the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of government. Englishmen are ruled by the law, and by the law alone; a man may with us be punished for a breach of the law, but he can be punished for nothing else. (Dicey, 1885, pp. 188 and 202)
- Even in Dicey’s day, at the height of the Victorian laissez faire state and before Parliament became the dominant law-maker, Dicey’s insistence on a lack of arbitrariness and the absence of wide discretion was unrealistic. Consider Sir Ivor Jennings’ critique:
Any court can punish me for contempt of court by imprisoning me for an indefinite period. If I am convicted of manslaughter, I may be released at once or imprisoned for life. If I am an alien, my naturalization is entirely within the discretion of the Home Secretary. If the Queen declares war against the rest of the world, I am prohibited from having dealings abroad. If the country is in danger, my property can be taken, perhaps without compensation. If a public health authority wants to flood my land in order to build a reservoir, it can take it from me compulsorily. I can be compelled to leave my work for a month or more, in order to serve on a jury. All these powers, and many more, were possessed by public authorities in 1885 [when Dicey’s book was published], and can still be exercised. (Jennings, 1959, p. 54).
- In the law-making process, as Jennings also points out, although the three component parts of Parliament
1) the Commons,
2) Lords and
must agree to legislation, that does not mean that arbitrary laws cannot be passed. Jennings points to the Defence of the Realm Act 1914, which conferred wide-ranging powers on the executive to deal with the war situation: the bill passed the Commons in one sitting and equally speedily in the Lords.
- We can add to this the Official Secrets Act 1911, the Prevention of Terrorism (Temporary Provisions) Act 1974 – which is still in force – and the Antiterrorism, Crime and Security Act 2001, each of which reached the statute book in record time.
- There is also the problem of retrospectively, which Dicey condemned. To make a person liable for an offence which at the time the act was committed was not an offence contravenes the rule of law.
- The European Convention on Human Rights, Article 7, prohibits the retrospective imposition of criminal liability. It is also a presumption of statutory interpretation that Parliament does not intend to legislate with retrospective effect (see Waddington v Miah  2 All ER 377).
2 Irrespective of rank and status all are equal under the law
[The rule of law] means
… equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts; the `rule of law’ in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals… (Dicey, p. 202).
- The context in which Dicey was writing this passage is his attack on the French legal system, which provided for a separate form of administrative law and administrative tribunals to deal with complaints against state agencies.
- This was anathema to Dicey, who appeared to take the strange view that a separate system of rules for officials meant that they were exempt from legal liability. Leaving that aside, however, the important point is that Dicey insists that irrespective of rank, status and powers, all are equally accountable to the law. Dicey is not arguing here that all persons have equal powers and rights. As Sir Ivor Jennings –points out:
… pawnbrokers, money lenders, landlords, drivers of motor cars, married women, and indeed most other classes have special rights and duties. (Jennings, 1959, p. 311, cited in Barnett p. 94).
It must also be recognised that
ü the Crown has certain immunities,
ü diplomats have immunities,
ü the police have powers over and above those of other citizens,
ü Members of Parliament have immunity from the law of defamation in respect of words spoken during parliamentary proceedings judges have immunity from things said or done in the course of their duties.
Ø These limited immunities, however, are not the central thrust of Dicey’s principle – that those with powers are accountable to law.
Ø Numerous examples both in favour of and against of Dicey’s proposition can be given. Throughout your course of study you should be able to identify differing cases and statutory sources which support or deny Dicey’s view.
3.rights and freedoms are best protected under the common law (rather than by a formal Bill of Rights)
We may say that the constitution is pervaded by the rule of law on the ground that the general principles of the constitution (as for example the right to personal liberty, or the right of public meeting) are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the courts; whereas under many foreign constitutions the security (such as it is) given to the rights of individuals results, or appears to result, from the general principles of the constitution… (Dicey, p. 195).
- Here Dicey reveals himself once again as the late 19th century champion of the common law.
- The rights to liberty and to assembly are determined by the courts in the course of ordinary legal proceedings. T
- his reflects the (now abandoned) traditional view that citizens are free to do whatever the law does not prohibit – they are what remains of the notion of `freedom unrestrained by law’. However, this places citizens in a fragile position: in order to know,
- what freedom of speech entails, citizens must understand all the legal restraints on freedom of expression
Ø the law relating to sedition,
Ø to race hatred speech,
Ø to support for terrorist organisations,
Ø to speech likely to cause a breach of the peace,
Ø the law of defamation and so on.
Add all the restrictions together and seek out the remainder, and that remainder is freedom of speech.
- nowadays it is principally Parliament which defines freedoms and rights.
- in the Equal Pay Act 1970,
- the Sex Discrimination Act 1975 and
- the Race Relations Act 1976.
- Another example relates to employment rights, many of which are created under European Community law, which overrides domestic law Since 1965 British citizens have had the right to apply under the European Convention on Human Rights for remedies which are unavailable under domestic law, and since the Human Rights Act 1998 the majority of Convention rights are enforceable before the domestic courts, subject to the overarching jurisdiction of the European Court of Human Rights in its interpretation of Convention rights.
- The Human Rights Act 1998 now provides the benchmark against which English law is tested to comply with European-wide standards of rights and freedoms. As you will see in Chapter 15, its impact has been wide-ranging.
Practical manifestations of the rule of law
- We can add to these several more issues for consideration, issues which demonstrate that the rule of law is not (just) an idealistic philosophy but a concept which has practical application within the legal system.
- Remember that the rule of law underpins the entire study of the constitution and that you should be alert to identifying differing aspects of law and the legal system which relate to the rule of law.
Some relevant cases
You should read more about these cases and make sure that you understand what important issues were being raised. Think about which of these cases uphold the rule of law, and what they demonstrate about the rule of law.
Entick v Carrington
In Entick v Carrington (1765) 19 St. Tr. 1029 the Court of Common Pleas held that a warrant of the Secretary of State for the entry, search and seizure of materials relating to the plaintiffs alleged publication of seditious material was `illegal and void’. There was no lawful authority for the warrant and the officers entering Entick’s property were trespassing.
R v Inland Revenue Commissioners, ex parte Rossminster Ltd  AC 952. Under section 20C of the Taxes Management Act 1970, statutory authority was given for the entry and search of premises, and seizure and removal of materials relevant to a suspicion of an offence of fraud having been committed.
In the Court of Appeal, Lord Denning condemned the breadth of power, stating that a warrant must `particularise the specific offence which is charged as being fraud on the revenue’ and that it was `the duty of the court so to construe the statute as to see that it encroaches as little as possible upon the liberties of the people of England’. On appeal to the House of Lords, however, Lord Denning’s view was rejected, Lord Scarman accepting `with regret’ that if the requirements of the statute were met, then the power exercised was lawful.
Malone v Metropolitan Police Commissioner
Malone v Metropolitan Police Commissioner  1 Ch 344. James Malone was on trial on suspicion of dealing in stolen goods. In the course of the trial it became clear that the police had intercepted Malone’s telephone calls, thereby obtaining evidence of alleged criminality. Sir Robert Megarry V-C ruled that there had been no trespass committed by the police, but that the interception of communications was `a subject which cries out for legislation.
Malone v United Kingdom
In Malone v United Kingdom  7 EHRR 14 the Court of Human Rights ruled that the United Kingdom had violated Article 8 of the Convention (the right to privacy) and that English law fell short of the standards of clarity and certainty necessary to protect citizens. In response the Government proposed and Parliament passed the interception of Communications Act 1985, placing the authorisation of intercept warrants on a statutory basis.
In re M
In re M [199313 WLR 433. M, a citizen of Zaire, was seeking asylum in the UK. The Home Office rejected his application and a deportation order was made. An application for judicial review was made, and the judge indicated that M’s departure should be delayed pending consideration of the application. The Home Office failed to prevent his removal, or to intervene to return M during the flight’s stop-over in Paris. The judge made an order requiring the Home Secretary to return M. Arrangements were made, but the Home Secretary, acting on legal advice, decided that the refusal of asylum had been correct and that the court lacked the jurisdiction to issue an injunction against a Minister of the Crown and cancelled the arrangements for M’s return.
The case went to the House of Lords, which ruled that while an injunction could not be issued against the Crown (because of the principle that the Crown can do no wrong), it could be issued against the executive and persons representing the Crown. Lord Templeman stated that there was power to enforce the law against a Minister in his or her official capacity and that the Home Office, for which the Secretary of State was responsible, was in contempt of court. The Home Secretary was not personally in contempt, since he had acted on legal advice.
R v Secretary of State for the Home Department
R v Secretary of State for the Home Department ex parte Fire Brigades’ Union and Others  2 AC 513. The Home Secretary decided that he would introduce a new tariff for compensation by using the royal prerogative to amend the Criminal Injuries Compensation Scheme, which had been introduced under the royal prerogative rather than Act of Parliament. However, in 1988, Parliament had passed the Criminal Justice Act which in part provided for amendments to the Criminal Injuries Compensation Scheme, although the relevant provisions had not yet been brought into force. The question was whether the Home Secretary could use the prerogative rather than statute.
The Court of Appeal and the House of Lords ruled that where a statute was in force the Home Secretary could not avoid its provisions and act under the prerogative. He could persuade Parliament to amend the Act, or to repeal the provisions, but he could not ignore Parliament’s enactment and use a more convenient source of power. To attempt to do so was an abuse of power.
- As an example of the control of power through law, consider the role of judicial review of administrative action
- Judicial review is concerned with ensuring that public bodies (including Ministers of the Crown) act within the proper sphere of power accorded to them by Parliament. As such, the judges are upholding both the rule of law and Parliament’s sovereignty by ensuring that Parliament’s will is upheld. However, there are limits to the judges’ role and effectiveness.
- The case of Rossminster above, illustrates this. So too does ‘the concept of justifiability, which is a self-denying rule which enables the judges to avoid straying into matters of high policy – most notably, but not exclusively, national security – which they deem to be the correct preserve of the executive to decide, subject to parliamentary but not judicial scrutiny.
Now consider other issues in the same manner.
ü Look at rules of evidence
ü When will a court exclude evidence from a trial?
ü On what grounds are such exclusions justifiable?
ü If evidence is obtained unlawfully, should it be admitted into trial?
ü Consider also the issue of the accessibility of and fairness in the legal system.
ü Drawing here also on your study of the English legal system,
ü consider the adequacy of legal aid and the cost of legal action and representation