#17236 - Rule Of Law - GDL Constitutional and Administrative Law

The Diceyan Orthodoxy

• ‘No man can lawfully be made to suffer in body or goods…’.

  • Primary concern is with protecting individual rights and liberties

• ‘…except for a distinct breach of the law’.

  • This reinforces the conclusion that government has to operate within a framework of laws superior to the mere actions of government

  • Supremacy of Regular law over arbitrary power

• ‘…must be established in the ordinary legal manner before the ordinary courts of the land’.

  • The courts, rather than the government, must determine whether or not the law has been broken.

  • Equality before the law; no higher law

Hayek

• Modern day Dicean

• For Hayek, the function of the rule of law is to ensure that: ‘government in all its actions is bound by rules fixed and announced beforehand’

• Hayekians believe that society’s interests are best served by reducing the power and size of government to a minimum, thereby giving individual citizens as much freedom as possible to organise their social and economic affairs.

Jones – rule of law in welfare state

• Born out of Butskellism: Butler and Gaitskell (politicians)

  • This perspective assumes firstly that government should play an extensive role in economic affairs, and secondly that individuals must accept significant limits on their autonomy if the legislature deems such restraints in the public interest.

• Rule of law is a relative rather than absolute political value

  • One can dilute Dicey’s model without removing its basic features.

  • BUT three arms of government must accept an ‘adjudicative ideal’.

    • Legislature bestows wide discretion on government bodies, it may not grant them arbitrary powers.

  • Forgoes some sense of predictability stating that citizens need merely know/understand general boundaries.

Joseph Raz’s Rule of Law

• Distinguished formal and structural with substantive rule fo law

  • Formal ROL is about having legal procedure (courts, lawyers etc.) establishes legal certainty

  • Substantive ROL is about the outcome – fairness and protection of individual rights

    • Lon Fuller supports this: legal systems require an element of morality

Harlow and Rawlings’ Law and Administration (1980)

• Could analyse public law by using a traffic light metaphor:

• Red light: Diceyan perspective

  • Hayek, echoing Dicey’s suspicion of the executive, maintain that the rule of law’s primary concern should be to stop government interfering with individual autonomy.

  • E.g. Anisminic v Foreign Compensation Commission (1969)

• Green Light: Jones

  • Jones, in contrast, believe that the Diceyan preoccupation with individual rights is misplaced.

  • Assume that Parliament and the courts should loosen the legal constraints on government discretion, enabling government to curb individual autonomy in order to promote society’s collective well-being.

• Amber light: Harlow & Rawlings

  • This does not mean that, in practice, legal controls lie at the precise mid-point of the theoretical continuum, but that individual cases are located at various positions on the spectrum.

  • Some flexibility but not too much.

Entick v Carrington (1765)

• Entick assisted John Wilkes’ radical political through printing.

  • Home secretary, under orders from George III and signed by Home Secretary issues a general warrant allowing Mr Carrington to break into Entick’s press and take away any printing materials there and dispose of them.

• Prima facie trespass, but Carrington argued the warrant provided a lawful excuse.

  • Defence could not be sustained - no legislation in force which authorised the Home Secretary to grant such a warrant.

• Camden CJ rejected both of these desperate defences

  • ‘If it is law, it will be found in our books. If it is not to be found there, it is not law.’

• Led Heuston to characterize the courts as the ‘lions under the throne’ of the British constitution

  • An independent judiciary: Act of Settlement 1701 - Judges appointed by crown; dismissible by Commons and Lords

The Rule of Law under orthodox or Diceyan perspective

• 1. No man (person) shall be lawfully made to suffer in body or goods

• 2. Except for a distinct breach of the law

• 3. Established before the ordinary courts of the land

• 4. No arbitrary power

• 5. 'Equality before the law' i.e. no special status for government officers per se

Separation of Powers

• 1) The Legislature: Law-making body

  • House of Commons, House of Lords, Royal Assent.

• 2) The Executive: Implements the law

  • The Crown, Governement and Cabinet.

• 3) The Judiciary: Interprets and enforces the law

  • Cannot JR parliament

Principles of Statutory interpretation

• Literal Rule - R v Judge of the City of London Court [1892] per Lord Esher

• Golden Rule - examined in the light of other parts of the Act

• Mischief Rule – what mischief was the provision meant to resolve

• Purposive Interpretation - Magor and St Mellons v Newport [1950]

Liversidge v Anderson (1942)

• Defence Regulations 1939 reg 18B

  • “If the Home Secretary has reasonable cause to believe any person to be of hostile origins or association..., he may make an order against that person directing that he be detained.”

  • Liversidge committed to prison, no reason given.

• The Majority held that

  • The Home Secretary could use reg. 18b to imprison anyone he thought was of hostile origins.

  • He did not need to offer the court any evidence to show that his belief was reasonable.

• Per Lord Wright

  • “All the word ‘reasonable’, then, means is that the minister must not lightly or arbitrarily invade the liberty of the subject.

• Lord Atkins Dissenting:

  • Lord Atkin thought if Parliament said 'reasonable cause to believe', it intended that there be some plausible evidence on which that view was based.

  • The only way in which could be given this interpretation is in Alice through the Looking Glass – Humpty Dumpty ‘when I use a word it means just what I chose, neither more nor less.’

  • Viscount Simon LC wrote to ask Aitkin to amend the strong terms of his dissenting judgement. He refused.

• Following Liversidge , Stable J wrote to Lord Aitkin to say the majority decision brought the judiciary into disrepute.

  • The judges were no longer ‘lions under the throne, but mice squeaking under a chair in the Home Office’.

• Henderson and Goodhart – support the majority in the decision

  • “Objectivity is a myth…an irrational concept of perfection in an imperfect world”

  • Criticise Atkin’s dissent as coming close to contempt of court.

• C Allen – Critiques the decision speaking of the ‘malicious prosecution’

  • Draws attention to the effects of the decision on the rule of law.

• Heuston sided with the majority, saw Aitkin’s ‘passionate, almost wild, rhetoric’

• The majority judgement was later critiqued in Rossminster and Ridge, but supported by Lord Denning in Hosenball.

• Lee - Courts in many of these other countries were readily invoking the majority decision in Liversidge to cloak their unwillingness or lack of judicial courage to provide effective judicial oversight of the exercise of preventive detention powers.

R v IRC, ex parte Rossminster

• Dennis Healey 1974: “We are going to squeeze the rich until the pips squeak….”

• Taxes Management Act 1970

  • Section 20C gave powers to inland revenue to request a warrant if there “is a reasonable ground for suspecting that an offence involving any kind of fraud”

• Rossminster challenged the legality of one such seizure

• Rossminster argued that a warrant can only be issued if they come to the judge specifying exactly what kind of offense had been committed.

  • This had not been done.

  • But the statute made no such restrictions: “involving any kind of fraud.”

• Denning clearly hated the search: “[T]here has been no search like it - and no seizure like it - in England, since that Saturday, April 30 1763”

  • “To enter a man's house by virtue of a nameless warrant, in order to procure evidence, is worse than the Spanish inquisition;

  • If literally construed it would be a new form of oppression.

  • “Rather than risk such abuse, it is, as I see it, the duty of the courts so to construe the statute as to see that it encroaches as little as possible upon the liberties of the people of England”

• Overruled (4-1) in House of Lords.

  • Lord Wilberforce equally doesn’t like the law or the role of the executive.

  • One of the first times we see reference to a right of privacy, but Parliament has a right to overrule this at any point.

  • Calls for Parliament to nonetheless take a fresh look at this legislation.

• Lord Scarman said: ‘The classic dissent of Lord Atkin ... is now accepted ... as correct

Bishop Hoadley - a sermon to the King in 1717;

• “Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver, to all intents and purposes, and not the person who first spoke or wrote them”

Retrospective Legistlation - Retrospective laws are also seen as incompatible with the rule of law.

• Burmah Oil v Lord Advocate [1965]

  • Oil installations were destroyed by British soldiers retreating in WW2 to prevent the Japanese from laying hands on them. Monarch has a common law power to destroys citizens property in war.

  • HoL held (3-2) that the crown was obliged to pay full compensation.

  • Government, worried it couldn’t foot such a bill passed the The War Damage Act [1965].

    • “No person shall be entitled at common law to receive from the Crown compensation in respect of damage to...property caused (whether before or after the passing of this Act...)”

• Under US law this is impossible: US Constitution the powers of Congress (Art 1 s.9(3)): No bill of attainder or ex post facto law...