Public | Constitutions
Principle: Rule of Law
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Introduction
- rule of law is one of the core principles of the UK Constitution
- unwritten doctrine which often used to refer to the fundamanetal values underlying the constitution
AV Dicey
- Dicey argues the rule of law alongside the concept of Parliamentary Supremacy are the key elements of the UK Constitution (An Introduction to the Study of the Law of the Constitution (1885))
- saw the rule of law as a constraint on the theoretically unlimited power of the state over the individual
- advocated legal certainty and due process:
.. no man is punishable ... except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land...
- laws under which people are condemned should be passed in the correct legal manner and guilt should only be established through ordinary trial process
- stressed importance of equality before the law:
.. every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals...
- rule of law is relevant to the constitution as in UK individual rights to liberty or freedom of association result from judicial decisions compared to other countries where such rights are defined in written constitutions
- could be interpreted as meaning that society must allow certain individual rights if it is to conform to the rule of law or that the common law approach was most effective at protecting these rights
Criticism
- rule of law has become a highly contested concept
- Dicey's formulation has been criticised as outdated and ambiguous
- his interpretation has substantially influenced the development of English Law
Discretionary Powers
- many criticise Dicey's views on discretionary powers
- he did not anticipate increased need for discretionary powers in modern State
- or need for legal control of such powers
- Dicey primarily concerned with the State's functions in maintaining law and order and levying taxation
- his opposition to discretionary power has been characterised as being driven by his opposition to government intervention
- fact of history that there has been a huge extension in State services and powers eg detailed regulations of industry and provision of welfare
- discretion is now seen as necessary for decision making required in an increasingly complex society
- rule of law includes discretionary power, constrained by values of fairness, impartially and equality
Legal Certainty
- Dicey's explanation of legal certainty provides insufficient protection for individual rights and freedoms
- it is more concerned with due process than the content of laws
- provides no criterion for deciding whether a statute excessively restricts civil liberties
- theoretically, would allow an Act of Parliament to authorise torture so long as it was sufficiently precise in its terms
Joseph Raz
- Raz recognises complex nature of the doctrine of the rule of law discussed in The Rule of Law and Its Virtue (1977) Law Quarterly Review
.. The rule of law is a political ideal which a legal system may lack or possess to a greater or lesser degree. That much is common ground. It is also to be insisted that the rule of law is just one of the virtues by which a legal system may be judged and by which it is to be judged...
- underpinned by the
.. basic idea that the law should be capable of providing effective guidance...
- particular legal orders pose a threat to the rule of law because they are unpredictable, seems to limit exercise of discretion
- but he argues that the requirements of the rule of law can still be met if these decisions are taken within a framework of
..open, stable, clear and general rules...
- agrees that governments need discretionary powers but thinks that the law limit how they are exercised and therefore, no discretion is absolute
Contemporary Issues
- diverse theoretical interpretation of rule of law its importance as a tenet of constitutional law remains
Legislation
- referenced in recent statute law:
Constitutional Reform Act 2005
Section 1
The Rule of Law
:.. This Act does not adversely affect - (a)the existing constitutional principle of the rule of law, or (b)the Lord Chancellor's existing constitutional role in relation to that principle.
Case Law
- referenced in recent case law:
M v Home Office [1993]
- deportation case in which Home Secretary ordered a deportation
- despite an assurance given in court that no such deportation would take place until after an appeal hearing
- Home Secretary was held in contempt of court but no punishment was ordered
- Lord Woolf:
.. the object of the exercise is not so much to punish an individual as to vindicate the rule of law by a finding of contempt...
R v Loosely [2001]
- case considering the implications of entrapment
- Lord Nicholls:
.. every court has an inherent power and duty to prevent abuse of its process. This is a fundamental principle of the rule of law. By recourse to this principle courts ensure that executive agents of the state do not misuse the coercive, law enforcement functions of the courts and thereby oppress citizens of the state...
Jackson v Attorney General [2005]
- case challenging the legality of the use of the Parliament Acts
- Lord Hope : [the rule of law, enforced by the courts was]
.. the ultimate controlling factor on which our constitution is based..
JUSTICE
- JUSTICE is an all party law reform and human rights organisation
- published report Future of the Rule of Law (2007)
- 1 adherence to the rule of law as a cornerstone of domestic and foreign policy
- 2 a right of equality for all before and under the law
- 3 a right of access to justice for all
- 4 protection for due process and the right to a fair trial
- 5 independence of the judiciary and legal profession
- 6 greater powers of Parliamentary scrutiny
- 7 greater protection for the rights of individuals within the European Union
Lord Bingham
- Lord Bingham core of existing principle of rule of law:
.. 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 by the courts...
- The Rule of Law (2010) emphasises importance of human rights
- argues that eight principles which should be used to define meaning of the rule of law
- 1 law must be accessible, intelligible, clear and predictable
- 2 questions of legal right and liability should be resolved by application of the law not exercise of discretion
- 3 laws of the land should apply equally to all
- 4 law must afford adequate protection of human rights
- 5 means must be provided for resolving civil disputes which parties cannot resolve themselves
- 6 public officers must exercise powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers
- 7 adjudicative procedures provided by the State should be fair
- 8 State must comply with its obligations in international law