#3589 - The Rule Of Law - Constitutional Law

The Rule of Law

• Constitutional principle that power should be exercised in a manner consistent with the law and that the law should show certain characteristics.

• Theorists argue over what exactly the rule of law is, as well its importance constitutionally. Some identify it as a cornerstone of the constitution, while others doubt that, Sklar referring to it as ‘ruling class chatter’.

• Key elements of the rules of law:

  • No one is above the law (Denning: be you ever so high, the law is above you).

  • Action is justifiable only by reference to legal power, not who they are.

  • Laws should be transparent and certain; power should not be exercised in an arbitrary manner

  • Everyone is presumed innocent until proven guilty

  • The judiciary should be strong and independent, as well as the legal profession.

Conceptions of the rule of law:

• What the rule of law is made up of is contested:

  • Substantive conception – the actual content of the law is encompassed in the rule of law. ‘An unjust law is no law at all’. Based on arguments from human dignity so supports ideas like human rights etc.

  • Formalist conception – laws are clear, certain, publically accessible, not retrospective, independent courts etc. But the content of the law can be anything – unconcerned with morality: ‘like a sharp knife’.

  • Legality conception – all that is required to adhere to rule of law is that the law is passed in the procedurally correct way.

• The importance of the rule of law is also disputed:

  • Informs political debate but is of no legal relevance.

  • Interpretative principle – courts try to interpret laws in accordance with rule of law.

  • Validity principle – a law that does not adhere to the rule of law is invalid.

Rule of law theorists:

• Dicey – saw three elements to the rule of law:

  • There can be no legal punishment for any breach of law other than that presented before the ordinary courts of the land.

  • Equality before the law.

  • Rights are secured through the common law, not a constitutional code (civil liberties argument).

• Raz – ‘people should obey the law and be ruled by it’. Must be capable of guiding the behaviour of its subjects. The rule of law does not necessitate the need for ‘good laws’ (formalist).

• Allan – cannot distinguish between formal and substantive because formal conceptions are based on substantive foundations e.g. human dignity.

• Bingham – seems to support Allan. Democracy, human rights, rule of law, and good governance are inseparably interlinked. Lists 8 sub-rules that form ‘the rule’:

  • Accessible, intelligible, clear and predictable.

  • Questions of legal right/liability should be decided by courts, not an individual exercising discretion.

  • Laws must apply to everyone

  • Fundamental human rights must receive adequate protection (Bingham argues that Dicey intended this to be a part of the rule of law).

  • Civil redress should be an affordable commodity.

  • Ministers and public officers must exercise their powers reasoning, in good faith, and for the reasons for which they were conferred.

  • State adjudication procedure should be fair.

  • We must abide by obligations under international treaty, custom etc.

Rule of Law in the UK

• We recognise a substantive approach to the rule of law, reflected through HRA. We also require legality in law-making and procedural fairness.

• Rule of law is generally considered when making decisions, but failures to adhere to the rule of law are remediable through judicial review. Each ground (illegality, impropriety and unreasonableness) deals with different aspects of the rule of law.

• Problem is that it seems to be subject to parliamentary sovereignty. Much as courts might fight for the rule of law, they can’t do much about it if Parliament make is expressly clear that they are overruling it.

• Jowell suggests that parliamentary sovereignty and and the rule of law work hand in hand; the former is power-giving, while the latter is power-limiting, thus it provides a constitutional balance for the power of Parliament.

• In practice:

  • R (Witham) v Lord Chancellor – D raised the cost of going to the House of Lords and rescinds the right for fees to be reduced or waived. C was unemployed and could not access the courts. This was found to be a constitutional right and the Order of the LC was unlawful – acting ultra vires. D had to act within the boundaries of the law.

  • Liversidge v Anderson – Home Sec was allowed to intern people who he had ‘reasonable cause to believe’ had ‘hostile associations’. Question for court was whether ‘reasonable cause’ was objective. Court found it was not – Home Sec’s judgment was presumed reasonable. Famous for Atkin’s dissent: “'When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean, neither more nor less'. 'The question is,' said Alice, 'whether you...