#15515 - Rule Of Law - GDL Constitutional and Administrative Law

Con & Ad : Rule of Law (RoL)

Introduction to RoL

• Principle of RoL: that those exercising a governmental function should not be able to exercise power arbitrarily, but rather be subject to legal controls.

• Rule of Law definition, de Smith: ‘Powers exercised by politicians must have a legitimate foundation ... based on authority conferred by law. ‘

• Adherence to rule of law is necessary in ensuring that individual rights are protected from erosion or interference by those governing the state.

• Academic disagreement over actual definition of rule of law, and its worth

  • For some, idea that gov action has a legal foundation is nothing more than a procedural safeguard against exercise of arbitrary power.

  • For others, more substantive principle, requiring not only consistency with legal form but also with fundamental rights.

• Heritage of the principle of rule of law:

  • Aristotle (c350 BC): ‘It is better for the law to rule than one of the citizens ... so even the guardians of the laws are obeying the laws’.

  • John Adams (1780): ‘ ... a government of laws not of men’.

  • John Blackburn (1866): ‘It is contrary to the general rule of law, not only in this country, but in every other, to make a person judge in his own case ... ‘

  • Universal Declaration of Human Rights (1948): ‘It is essential, if a man is not compelled to have recourse as a last result to rebellion against tyranny and oppression, that human rights should be protected by the Rule of Law’.

• Many academics and judges have said the sovereignty of Parliament is over, rule of law is a better idea:

  • Lord Hope, in R (Jackson) v Attorney General, 2005: obiter, rule of law as the dominant force in the UK (others might have said sovereignty of Parliamentary is the dominance force). ‘The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based’ (Lord Hope).

• Recent years, rule of law arguably more significant & constitutionally important concept, Constitutional Reform Act 2005, s1/Part 1 called ‘The rule of law’:

  • S1: direct reference to rule of law as a ‘constitutional principle’.

  • S1(1): ‘the existing constitutional principle of the rule of law’.

  • Part 1: Its Emphasis on independence of the judiciary, which is crucial to rule of law.

  • Though no definition of what is meant by ‘rule of law’ in the Act. Left to judges to interpret what it means.

• Such a case: R (on the application of Corner House Research) v Director of the Serious Fraud Office [2008]:

  • Court considered decision by Director of Serious Fraud Office to halt investigation into bribery allegations regarding arms contracts with gov of Saudi Arabia, following an explicit threat made by Saudi representatives to the PM’s Chief of Staff.

  • Divisional Court held: the decision to halt the investigation represented a surrender to an external threat and ran directly contrary to the constitutional principle of the rule of law. It therefore quashed the Director’s decision.

  • Then went to HL: reversed this judgement, concluding that Director had been entitled to conclude that the public interest in pursuing an important investigation into alleged bribery was outweighed by the wider public interest in protecting national security.

• Lord Bingham, The Rule of Law, 2010 [[see more below]].

  • Attempted to define: ‘The core of the existing principle is that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publically administered in the courts’.

  • He acknowledged his formulation owed much to Dicey; but also captured John Locke’s truth, in Two Treatises of Gov (1690, Book 2, Ch XVIII) that ‘Wherever law ends, tyranny begins’.

  • 8 sub rules including:

    • Accessible, clear and predictable.

    • Apply equally

    • Protection for HR

    • Access to justice

  • This theory is a Mix of formal and substantive.

Formal VS substantive rule of law

• 2 broad schools of thought.

• The ‘formal’ view: for there to be gov under the law, laws must adhere to certain procedural requirements. Says nothing about the morality of the law—only that it must be capable of guiding the behaviour of its subjects so that an individual can be certain of their actions and position within society in any given circumstances.

  • To achieve this quality of certainty in law, law must be prospective and clear, and should be adjudicated upon by an independent judiciary, with access to courts made available to all citizens.

  • Joseph Raz—formalist conception of rule of law.

  • Also John Rawls, similar theory to Raz.

• The ‘substantive’ view:

  • Eg Leon Fuller.

  • Fuller argues: law can and must possess some form of ‘internal morality’ or it is not worthy of the title ‘legal system’.

  • Says that a regime which merely commanded authority could be described as a governmental system, but would not qualify as a ‘legal’’ system. A legal system must serve interests of the population and not simply those of the regime itself.

• For Formal CF substantive view, see IRC v Rossminster (1980):

  • CA applied ‘substantive’ view, law should be morally right and serve interests of the population;

  • cf HL applied ‘formal’ view, law was procedurally correct.

Rule of Law Theories

• Dicey 1885, theory of rule of law, Introduction to the Study of the Law of the Constitution (1885):

  • 1. Supremacy of Regular Law over arbitrary power.

  • ‘ It means... the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power ... and excludes the existence or arbitrariness, of prerogative, or even of wide discretionary authority on the part of the 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.’

  • [[see Entick v Carrington for a classic Diceyan application of this principle]].

  • 2. Equality before the law

  • By the rule of law we mean ‘not only that ... no man is above the law, but ... that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm ... ‘

  • 3. No Higher law other than the rights of individuals as determined through the courts

  • ‘ ... the general principles of the constitution ... [such as right to personal liberty, public meeting] are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the courts’—whereas, in many foreign constitutions, the rights of individuals results from the general principles of the constitution.

  • This third part of Dicey doesn’t quite work for us, because we have the higher law of EU law, and also arguably ECHR in HRA 1998. These are both ‘higher’ forms of law than judicial decisions

  • So two potentially ‘higher’ elements of law, which weren’t around in Dicey’s time: EU law; and human rights.

  • Taking issue with Dicey’s third point: Is the constitution the result of the Ordinary Law?

  • Dicey: ‘… the 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’

  • Dicey versus:

    • ECA 1972

    • HRA 1998

• Lord Bingham, The Rule of Law (2005)---mix of formal and substantive elements

  • He ascribes to a number of points made by Dicey, but develops the theory in a modern and substantive directive.

  • He describes 8 sub-rules within his conception of rule of law

    1. Law should be accessible, clear and predictable.

    2. Legal processes > discretion. Legal issues should ordinarily be resolved through legal processes and not through exercise of (administration) discretion.

    3. Law should apply equally to all.

    4. Protection of HR: Law should offer adequate protection for human rights.

    5. Should be access to justice in the courts without inordinate delay or expense.

    6. Public officials, including ministers, should exercise the powers they have been granted in good faith and within the limits of those powers.

    7. Legal and adjudicative processes should be fair.

    8. The state should comply with its obligations under international law.

  • Last point, re obligations under international law: was a subject of controversy when the Gov re-drafted the Ministerial Code in 2015 and excluded the previous reference, in para 1.2, to ‘the overarching duty on Ministers to comply with the law including international law and treaty obligations’.

• Joseph Raz:

  • Raz makes distinction between formal and substantive ROL. Rogue states all have courts, lawyers, judges, law enforcement structures etc. They would seem to abide by formal rule of law. Just because you have the process, structures and institutions, that doesn’t mean you have substantive ROL which is fair, and just.

  • Formal Rule of Law:

    • Courts

    • Officials

    • Structures

  • + BUT their existence may not guarantee substantive ROL.

  • = Substantive ROL = fairness, justice.

  • Lots of states try and claim legitimacy for what they do by pointing to their systems, but this doesn’t mean they have substantive ROL.

  • Raz goes on to say, if you do certain things, you have a good chance of leading to substantive RoL:

    • 1. The law should be: general (shouldn’t focus on groups); prospective (laws shouldn’t work backwards); open (to everyone); and clear. [these are like the rules enshrined in HRA 1998].

    • 2. Relatively stable. Should be able to predict.

    • 3. Guarantee judicial independence.

  • Procedural ROL ‘says nothing about fundamental rights about equality or justice’.

  • So we need the procedural to represent good law.

  • The formal and substantive should go hand in hand.

• Universal Declaration of Human Rights...