Rule of Law - Rule of Law PDF

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AV Dicey, Introduction to the Study of the Law of the Constitution (1885) - said that the rule of law means 3 things; ● ● ●

the predominance of law over the influence of wide discretionary arbitrary prerogative powers means that any individual may be liable or punished for a breach of law and nothing else; everyone is equal in the eyes of the law; the principles of British constitutional law do not originate in higher constitutional codes (such as in countries like the US), but from the ordinary law that deals with the rights and obligations of private individuals.

R v Rimmington (2006) - Lord Bingham said that conduct that is forbidden by law should be clearly expressed so that individuals know that their actions are wrong before they do it and that nobody should be punished for committing a criminal offence when it was not a criminal offence when it was done. Sharma v Brown-Antoine (2007) - Lord Bingham and Lord Walker said that the rule of law requires that the law is even-handed and apply to all in the same way (with the exceptions of legal immunity or exemptions). Von Hayick, The Road to Serfdom (1944) - argued that the state should maintain the rule of law with as little arbitrary intervention as possible. Therefore, from this reasoning, it is possible to argue that the state should not nationalise industries or regulate banks and other businesses. Sir Ivor Jennings, The Law and the Constitution, 5th edn (1959) - critically viewed Dicey's conception of the rule of law. He found that Dicey's concentrate on liberty, certainty and the limitation of discretionary powers were inconsistent with the 20th-century idea of social justice which came from the widening of discretionary powers. Sir Ivor Jennings listed 4 characteristics of a legal system based on the rule of law. ● ● ● ●

The state as a whole must be regulated by law. There must be an implicit separation of powers. Police powers must be clearly defined. There must be clear general rules interpreted and applied by the courts. Criminal statutes must be interpreted strictly. Equality and liberty are also essential features of the rule of law.

LL Fuller, The Morality of Law (1969) - identified 8 requirements of a legal system based on the rule of law. ● ● ● ● ● ●

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There must be a precise body of laws which can be identified and stated clearly. These rules of law must be published so that people know where they stand. Legislation must be written in clear language so that people can understand it, and must be freely available to the public. Legislation must not be retroactive so as to outlaw something done in the past which was not against the law when it was done. The law must be consistent in both substance and application so that there is nothing contradictory in it. Laws must be able to be obeyed without undue hardship. This takes into account the cost and practicality of implementing and enforcing laws. It also includes the impact on the economy when new regulations are introduced. Legislation must be stable and not subject to over-frequent revisions. There must be no divergence between the adjudication/administration and legislation.

HLA Hart - criticised Fuller's requirements, as they only show the efficiency of the legal system

and not the morality underlying it in terms of whether something is good or bad. Joseph Raz, 'Rule of Law and its Virtue' (1977) and The Authority of Law (1979) - identified several principles which may be associated with the rule of law in some (but not all) societies. His principal focus is on guiding an individual's behaviour and minimising the dangers associated with the exercise of arbitrary and discretionary powers. Advanced the view that the rule of law can be formulated as any political ideal to be realised in legal terms. This means that even a totalitarian regime may claim to have a 'Rule of Law'. ● ● ● ● ● ● ● ●

That laws should be prospective rather than retroactive. Laws should be stable and not changed too frequently, as lack of awareness of the law prevents one from being guided by it. There should be clear rules and procedures for making laws. The independence of the judiciary has to be guaranteed. The principles of natural justice must be upheld, especially those concerning the right to a fair hearing. The courts should have the power of judicial review over the way in which the other principles are implemented. The courts should be accessible; no man may be denied justice. The discretion of law enforcement and crime prevention agencies should not be allowed to pervert the law.

Lord Bingham, The Rule of Law (2007) - based his view about the rule of law on 3 main assumptions. ● ● ●

Everyone should be equally bound by and entitled to the benefit of the law. Laws should be publicly and prospectively published. Laws should be publicly administered in the courts.

Bingham also identified and stated 8 key principles or sub-rules which characterise the rule of law. ● ● ● ● ● ● ● ●

The law must be accessible, and so far as possible intelligible, clear and predictable. Questions of legal right and liability should ordinarily be resolved by the application of the law and not the exercise of discretion. The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation. The law must afford adequate protection to fundamental human rights. Means must be provided for resolving, without prohibitive costs or inordinate delay, bona fide civil disputes that the parties themselves are unable to resolve. Ministers and public officers at all levels 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. Adjudicative procedures provided by the state should be fair. The rule of law requires compliance by the state with its obligations in international law, the law which, whether deriving from treaty or international customs and practice, governs the conduct of nations.

Note: Section 1 of the Constitutional Reform Act 2005 explicitly recognises the 'constitutional principle of the rule of law', but says nothing about its meaning. Allan, Law, Liberty and Justice (1993) - 'Like a sharp knife, the rule of law is morally neutral - [law is therefore] an efficient instrument for good purposes, or wicked'.

Note: Raz supports the formal conception of the rule of law, which is said to be morally neutral. International Committee of Jurists, 1959 - the principle of the rule of law encompasses 'civil and political rights' and requires 'social, educational and cultural conditions which are essential to the full development of [each person's] personality'. Raz retorts to this statement 'If the rule of law is the rule of the good law then to explain its nature is to propound a complete social philosophy'. However, the formal conception of the rule of law is not actually morally neutral - it is based on the idea of individual autonomy and dignity. Therefore, would it be better to just accept a substantive conception of the rule of law, and accept that values such as social, educational and cultural conditions would be caught up in the gale of the rule of law? Elliott and Thomas - the judges decide what the rule of law means. The main vehicle through which the principles comprising the rule of law are articulated in the UK is judicial interpretation of legislation and judicial evaluation of the legality of government action. Note: Cannot talk about the meaning of the rule of law without reference to its practical effect. In the UK, the main practical effects of the rule of law are threefold: ● ● ●

Courts will strike down government action that is inconsistent with the rule of law. Courts try, whenever possible, to give legislation a meaning that is compatible with the rule of law. Courts will generally hold legislation (other than Acts of Parliament) to be invalid if it cannot be interpreted compatibly with the rule of law.

Entick v Carrington (1765) - in deciding that a warrant issued by the Secretary of State to enter and search the claimant's premises and seize property was illegal the Court of King's Bench determined that the executive can do nothing without legal authority. Where a public body claims to have the power to do something it must be able to identify the precise legal source of its powers. Stroud v Bradbury (1952) - Lord Goddard CJ found that public bodies exercising statutory duties must do what the statute requires them to do. Congreve v Home Office (1976) - the courts are duty bound to correct any abuse of power by the executive, and judges are free to exercise this jurisdiction independently. M v Home Office (1993) - Lord Templeman's speech provided the following points. The judiciary enforce the law against, individuals, institutions and the executive. Judges cannot enforce the law against the monarch, because the monarch can do no wrong, but judges enforce the law against the executive and against the individuals who from time to time represent the executive. A litigant complaining of a breach of the law by the executive can sue the Crown as executive bringing his action against the minister responsible for the department of state involved. To enforce the law the courts have the power to grant remedies against the minister in his official capacity. If a minister has personally broken the law, then the litigant can sue the minister in his personal capacity. For the purpose of enforcing the law against all persons and institutions, including ministers in their official capacity, the courts have coercive powers exercisable in proceedings for contempt of court. R v Secretary of State for the Home Department, ex p the Fire Brigades Union (1995) - Lord Mustill gave the following points in his dissenting judgment. He said that the role of the courts is to ensure that powers that are entrusted to various bodies are exercised lawfully, and not taken

into their own hands and used afresh. He also found that a claim that a decision under challenge was wrong leads nowhere, except in the cases where the decision can be found to be obviously and grossly irrational (in the lawyers' sense of the word) that there must have been some failure in the decision-making process. R (on the application of Anderson) v Secretary of State for the Home Department (2003) - Lord Steyn said that a decision to punish an offender by way of imprisonment could only be made by a court of law. Matthews v Ministry of Defence (2003) - Lord Hoffman said that civil rights must be determined by an independent and impartial judicial system. Lord Hoffman also said that the executive must not arbitrarily try to stop the court from hearing a claimant's action, either by saying that there is no cause of action without the government's consent or by issuing a certificate that the action is not to proceed. R (on the application of G) v Immigration Appeal Tribunal; R (on the application of M) v Immigration Appeal Tribunal (2005) - Lord Philips MR said that judges preserve the rule of law. Common law rules governing access to the judicial system and the judicial review are the cornerstone of the rule of law. Judges must interpret any statute that could potentially threaten the rule of law in a way so that it does not achieve this end. R (on the application of Al Rawi and others) v Secretary of State for Foreign and Commonwealth Affairs and another (2007) - Laws LJ said that the Human Rights Act 1998 had made the rule of law a more substantive principle: public authorities should be authorised by the words of a statute and public authorities should make decisions that are both reasonable and proportionate to a legitimate aim. Laws LJ also agreed with Lord Hoffman's views from Secretary of State for the Home Department v Rehman (2003), where there will not be intervention in matters where the Secretary of State's decision is based on access to confidential information or special expertise, and judges may not allow a challenge if the nature and the consequences of the decision are so that is may be better for Parliament to take account of the case. Liversidge v Anderson (1942) - the House of Lords said that judges are 'no respecters of persons'; they stand between the citizen and any attempted encroachment on his liability. They particularly ensure that coercive action is justified by law. However, in times of emergency, they did accept that arbitrary and wide subjective discretionary powers are permitted. Secretary of State for the Home Department v Rehman (2003) - considered section 3(5)(a) of the Immigration Act 1971 and section 21(1) Anti-terrorism Act 1981. The House of Lords made 4 essential points. ● ● ● ●

What is for the conducive public good is a matter for the executive discretion of the Secretary of State. The Secretay of State is entitled to take an overall view. The interests of national security can not only be threatened by actions against the UK, but also through indirect actions such as activities against other states. Even though any facts on which the Secretary of State relies must be proved on the civil balance of probabilities, there is no standard of proof that is appropriate to the formulation of the Secretary's assessment of whether a person's deportation is for the conducive public good (which is a matter of reasonable and proportionate judgment.

A and Others v Secretary of State for the Home Department (2005) - issues relating to the courts' powers to scrutinise wide discretionary powers were discussed. Lord Nicholls identified and stated the following key points.

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Indefinite imprisonment without charge is contrary to the rule of law, as it deprives the detained person of the protections given to him through the criminal trials. The primary burden of protecting national security rests with the executive. The executive's role is to evaluate and decide upon appropriate anti-terrorist measures. The role of the judiciary, in a legal system based on the rule of law, is to make sure that human rights are not overlooked by administrative and ministerial decisions, and to ensure that both Parliament and the executive give due weight to fundamental rights and freedoms. In carrying out its role, the judiciary will give both Parliament and the executive an appropriate degree of latitude. The degree of latitude will be determined by the nature of the matter being considered, the importance of the human right in question and the extent of the encroachment on that right. The courts will only intervene when, in balancing the various considerations involved, it is obvious that insufficient weight has been given to the human rights factor by the decisionmaker.

R (on the application of Corner House Research) v the Director of the Serious Fraud Office (2009) - found that the rule of law was not absolute, and that interests of national security and other public interests outweigh the Dicean injunction banning arbitrary and wide discretionary powers. Shaw v DPP (1962) - Shaw published a Ladies Directory containing the names and addresses of prostitutes. He was charged, among other things, with conspiracy to corrupt public morals in that he conspired with the advertisers and other persons by means of the 'Ladies Directory' and the advertisements to debauch and corrupt the morals of youth and other subjects of the Queen. He was convicted. He appealed on the ground that there was no such offence as conspiracy to corrupt public morals. The case reached the House of Lords. Speaking for the majority, Lord Simonds claimed that there was a residual judicial power to enforce the supreme and fundamental purpose of the law. The purpose of the law, according to Lord Simonds, was to protect the safety, order and moral welfare of the state. He concluded that the courts had a duty to protect the state against novel and unexpected attacks. Lord Reid dissented on the ground that it was contrary to the rule of law for the courts to create or extend criminal offences on public policy grounds. R v Rimmington; R v Goldstein (2006) - Lord Bingham said that if a common law offence is to be enlarged in the courts, it must be done step-by-step, on a case-by-case basis, and not in one large leap....