#14969 - Rule Of Law - Constitutional Law

RULE OF LAW

RoL is formally recognised in statute: s1 of Constitututional Reform Act 2005 somewhat cryptically provides that “This Act does not adversely affect… the existing constitutional principle of the rule of law”

Elusive constitutional principle that power should be exercised in a manner consistent with the law and that the law should show certain characteristics

• Elliott: RoL as an envelope containing bundle of more specific principles and fundamental values

Examples of claims where RoL has been invoked:

• RoL requires every person be protected from invasion by the authorities of his rights and liberties – Brown v Scott (2001)

• RoL requires an independent judiciary + that special jurisdictions be under the supervision of ordinary courts to ensure fairness and consistency – Cart v Upper Tribunal (2012)

• Claims associating RoL with liberal belief (e.g. dignity and freedom) – Taylor v Chief Constable (2004): CA stressed fundamental principle that a policeman must give clear reasons for arresting someone, Sedley LJ based this on the value of human dignity

• RoL as necessary foundation of democracy

Different versions of the RoL

1. Dicey’s version of the RoL

AV Dicey (1885) formulated a three-fold version of the RoL, which still has great influence today:

1. Predominance of law

No interference with individual rights without the backing of law – Ex parte Fewings (1995): Laws J referring to one of the “sinews” of the RoL said that for public bodies “any action to be taken must be justified by positive law”

No wide discretionary power of gov – exercise of discretion must be limited controlled – to some extent done by judicial review

Punishments should be meted out in ordinary courts: no longer the case today but belief preserved by JR

2. Equality before the law

Essential in interests of public confidence, aspect of Dicey’s version of RoL has stood the test of time

• Officials enjoy no special protection from legal liability – M v Home Office (1993): Minister cannot refuse to comply with court order on the basis that he is a servant of the Crown unlike Crown, a minister exercising his power on behalf of the Crown can be held in contempt of court

Qualifications: judges immune from personal liability in respect of actions in court, Parliament immune in relation to internal proceedings, MPs have certain immunities but not from ordinary criminal law.

3. Constitution is the “result” of the ordinary law

UK constitution, not being written, seen to be embedded in the very fabric of the law, dealing with concrete situations + backed by practical court’s remedies.

4. Relevance of Dicey’s analysis today

Early case of Entick v Carrington (1765) illustrates all three of Dicey’s aspects to the RoL: court held that Home Secretary had no power to enter and seize a citizen’s property without a specific warrant of the court

• General warrants giving officials wide discretion unlawful – any official must show legal authority for their action, if not can be sued like any other parties

modern case of ex parte Rossminster (1980): involved similar search in relation to tax offences

• Parliament had given a general power to tax inspectors to enter and search private premises – court was powerless to protect the citizen in light of this wide-ranging power conferred by statute

HRA might provide compromise solution: wide powers have to be “proportionate” in the public interest

2. “Core” RoL: bare principle of legality

Basic RoL = government by law in the form of general rules as opposed to the discretion of the ruler

• Hayek (1960): RoL means that gov in all actions is bound by rules fixed and announced beforehand

• Requires that rules are validly made

• Implies equality in sense that everyone who falls within given law must be treated the same under it

ex parte Witham (1997): under the authority of S 130 of Senior Courts Act 1981, Lord Chancellor made a delegated legislative provision, which repealed provisions excusing litigants receiving income support from paying court fees + allowed the Lord Chancellor to reduce or waive the fee in exceptional cases

• Laws J: access to the court was in effect a constitutional right recognised by CL, which could not be abrogated except by express words

• Gov Minister had exceeded the powers by Parliament, was acting without lawful authority

*Decision of ultra vires as direct application of the RoL

If no rules, powers will not be unlawful – Malone v MPC (1979): police could lawfully intercept telephone calls because no CL or statutory rihts to privacy under domestic law techniques were not unlawful

Core RoL is a requirement of the ECHR: many provisions (e.g. art 5 right to liberty/security and 9 on freedom of thought, conscience + religion) provides that state can limit a right only if its action is “prescribed by law”

Critique: no specification as to the content of those rules core RoL consistent with repressive regime

• General rules, even those made by a tyrant are better than gov by unpredictable whim of a tyrant

• Equality can be different laws for different groups of people

3. “Amplified” RoL: formal conception

Morally neutral but not neutral as to the characteristics of the system

• Requirement of predictability, planning, certainty and clarity of the law – primarily procedural or formal version of RoL little to say about the content of a law as opposed to how made and applied

• Fundamental requirement that there should be access to independent courts + fair trial – stressed by Lord Bingham in the A v Secretary of State for the Home Dept (2004)

Syrett (2011) pointed out different approaches to RoL led to judicial disagreement in Anufrijeva v Secretary of State for Home Dept (2003): a statute stated that entitlement of an asylum seeker to benefit terminated when the Home Office determined that asylum should be refused

• Majority HoL held that this did not apply until the asylum seeker had been informed of the decision – in that case several months later, so entitled to challenge the decision

  • Core principle of promulgation so that laws can be known in advance

• L Bingham, dissenting, held that court should follow plain words of the legislation

** L Bingham’s core RoL position majority follow an amplified approach – view that unless statute explicitly says otherwise it must be read so as to accommodate basic rights (principle of legality)

Critique: amplified RoL might be criticised as narrow in concentrating on procedure rather than substance it favours those who can enlist the support of the legal support – the well-to-do

• Proponents like Sunstein (1996): might respond that RoL is not meant to address all social problems but is merely one aspect of good government

4. Extended RoL: substantive version

1. Craig (1997) distinguished between “formal” and “substantive” version of the RoL:

Formal version centres on shape and application of the law, whether has been properly made, whether clear and fairly applied reflects the “core” and “amplified versions”

• Laly Hale in Cart v Upper Tribunal (2011): RoL requires that statute law be interpreted by an authoritative and independent judicial source + that law applied equally to who fall within it

• Formal version has nothing to say about content of the law – John Stuart Mill “justice of giving equal protection to the rights of all is maintained by those who support the most outrageous inequality in the rights themselves”

Substantive version: analysing content of the law, whether fair and just + reflects values of society

2. A substantive, purposive version of the RoL

Most ambitious version: law encapsulates overarching political values of the community – assumed to be liberal, such as freedom of expression and non-discrimination – Allan (2006)

• Based on Dworkin’s approach that law should impose justice + fairness and give rise to individual rights against encroachment of the state

Where laws are vague, widely accepted standards of “practical reasoning”: appeals to csq, moral values, widely shared feelings, etc:

• This is how CL might be reconciled with RoL: CL claims to conform to widely accepted community standards: “ordinary notions of what is fit and proper” – MacFarlane v Tayside Health Board

• Legalistic perspective: heavily rational, relying on linguistic reasoning turning on verbal definitions + categories at the expense of human feelings involved

Laws LJ in Al Rawi (2007): HRA has made the RoL a more substantive principle: requires public authorities to make decisions which are both reasonable and proportionate to a legitimate aim.

Allan (1985): constitutional principle of RoL serves to bridge the bap between legal doctrine of Parl sov and pol doctrine of sovereignty of the people

• Implies a requirement of interpreting statutes in conformity with general notions of fairness + justice

3. The principle of legality

Version of RoL which seeks to restrain “bad laws” by interpreting legislation + evaluating in light of CL values claims to support liberal democracy

Ex parte Pierson (1998): question was whether it was within the Home Secretary’s powers under the Criminal Justice Act 1991 to increase the tariff of a prisoner serving a mandatory life sentence

• The enabling provision had to be construed within the context of the RoL “principle of legality” requires Parliament to legislate in express terms if it intends to give gov power to violate the RoL

  • L Bingham in R(Daly): basic common law rights may be curtailed “only be clear and express words and then only to the extent reasonably necessary to justify the curtailment”

Applies to procedural matters – thus encompassing...