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Principle: Rule of Law
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Introduction
The rule of law is one of the core principles of the UK Constitution. It is an unwritten doctrine which is often used to refer to the fundamanetal values underlying the constitution.
AV Dicey
Dicey set out his theory in his seminal work An Introduction to the Study of the Law of the Constitution (1885) argues that the rule of law alongside the concept of Parliamentary Supremacy are the key elements of the UK Constitution. Dicey saw the rule of law as a constraint on the theoretically unlimited power of the state over the individual.
Dicey advocated legal certainty and due process by stating .. no man is punishable ... 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...
. Essentially, the laws under which people are condemned should be passed in the correct legal manner and that guilt should only be established through the ordinary trial process.
Dicey stressed the 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...
. He went on to argue against officials being given any special privileges.
Dicey argued the rule of law is relevant to the constitution as in the 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. He wrote .. general principles of the constitution ... 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...
. This could be interpreted as meaning that society must allow certain individual rights if it is to conform to the rule of law. Alternatively, it can be seen as a statement that the common law approach was most effective at protecting these rights.
Criticism
The rule of law has become a highly contested concept and Dicey's formulation has been criticised as outdated and ambiguous. However, his interpretation has substantially influenced the development of English Law.
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Discretionary Powers
Many commentators criticise Dicey's views on discretionary powers. He did not anticipate the increased need for discretionary powers in the modern State and the need for legal control of such powers.
Dicey seems to have been primarily concerned with the State's functions in maintaining law and order and levying taxation. Dicey's opposition to discretionary power has been characterised as being driven by his opposition to government intervention. Although it is a fact of history that there has been a huge extension in State services and powers for example, modern government is involved in wide aspects of daily life including detailed regulations of industry and provision of welfare.
Discretion is now seen as necessary for the decision making required in an increasingly complex society. More recently, therefore, the rule of law has been reconciled to discretionary power. However, discretion should still be constrained by values of the rule of law, such as fairness, impartially and equality.
Jeffrey Jowell summarises that
.. Dicey believed that discretionary power offended the Rule of Law as it would inevitably lead to arbitrary decisions. His critics pointed out that in the modern state discretion is necessary to carry out a variety of welfare and regulatory tasks. Nevertheless, the Rule of Law contains a number of important values, including legality, certainty, accountability, efficiency, due process and access to justice. These are not only formal values but also substantive. The Rule of Law is not a theory of law but a principle of institutional morality inherent in any constitutional democracy. In a country without a written constitution it constrains the way power is exercised. It is enforced and elaborated through judicial review but also serves as a critical focus for public debate...
(The Changing Constitution (2007)). -
Legal Certainty
Dicey's explanation of legal certainty provides insufficient protection for individual rights and freedoms because it is more concerned with due process than the content of laws.
Dicey's rule of law provides no criterion for deciding whether a statute excessively restricts civil liberties. Theoretically, Dicey's definition of rule of law would allow an Act of Parliament to authorise torture so long as it was sufficiently precise in its terms.
Joseph Raz
Raz recognises the complex nature of the doctrine of the rule of law. In his widely referenced article The Rule of Law and Its Virtue (1977) published in The Law Quarterly Review, he stated .. If the rule of law is the rule of the good law then to explain its nature is to propound a complete social philosophy. But if so the term lacks any useful function. We have no need to be converted to the rule of law just in order to discover that to believe in it is to believe that good should triumph. 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...
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Raz's concept of the rule of law is underpinned by the .. basic idea that the law should be capable of providing effective guidance...
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Raz argues that particular legal orders pose a threat to the rule of law because they are unpredictable. This would seem to limit exercise of discretion. However, 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...
. Raz agrees that governments need discretionary powers but thinks that the law limit how they are exercised and therefore, no discretion is absolute.
Contemporary Issues
Despite diverse theoretical interpretation of the rule of law its importance as a tenet of constitutional law remains. It is explicitly referenced in recent statute and case law.
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Legislation
Constitutional Reform Act 2005
Section 1 is titled
The Rule of Law
and states:.. 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.
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Case Law
M v Home Office [1993]
A deportation case in which the 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]
A 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]
A case challenging the legality of the use of the Parliament Acts in relation to the Hunting Act 2004, which banned fox hunting.
Lord Hope : [the rule of law, enforced by the courts was]
.. the ultimate controlling factor on which our constitution is based..
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JUSTICE
JUSTICE is an all party law reform and human rights organisation. They promote improvements to the British legal system – through research, education, lobbying and interventions in the courts.
- 1 The UK should adhere to international human rights standards in both domestic and foreign policy, with human rights being constitutionally protected within the UK.
- 2 The independence of the legal profession and the judiciary must be upheld, with members of the government to refrain from criticising the judiciary.
- 3 Due process of law and the right to fair trial must be protected.
- 4 There should be equality before and under the law, with no discrimination.
- 5 There should be an equal right of access to justice, with no one deprived of this right as a result of financial or other disadvantage.
- 6 Parliament should have greater powers to scrutinise legislation and hold ministers to account for their actions. In particular the scope of the Royal Prerogative should be restricted.
- 7 Greater co-operation between EU Member States must be accompanied by greater protection for rights of individuals.
In 2007, JUSTICE published a report on the Future of the Rule of Law, which highlighted seven key themes:
Lord Bingham
Lord Bingham stated the core of the existing principle of the rule of law was 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 by the courts...
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In his book The Rule of Law (2010) he emphasises the importance of human rights as an essential component of the rule of law.
- 1 The law must be accessible, intelligible, clear and predictable.
- 2 Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion.
- 3 The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.
- 4 The law must afford adequate protection of human rights.
- 5 Means must be provided for resolving, without excessive cost or delay, civil disputes which the parties cannot resolve themselves.
- 6 Ministers and public officers must exercise the 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 The adjudicative procedures provided by the State should be fair.
- 8 The State must comply with its obligations in international law.
Lord Bingham argues that there are eight principles which should be used to define the meaning of the rule of law: