Rule of Law in the United Kingdom's Constitution

The Rule of Law is a fundamental doctrine encompassing the UK constitution; it exists arduous to define due to its significant nature of acquiring differing meanings to various groups and instiutions. Professor Jowell describes it as ‘a resilient and effective force behind the evolution of the United Kingdom’s constitution’. [1]

Sir Albert Vann Dicey is perhaps the largest contributor to the comprehension of the rule of rule as laid out in his work, ‘the Introduction to the Study of the Law of the Constitution’. He comprehended that the rule of law is ‘one of the most marked peculiarities of English life [2] ’, and described it as existing with 3 elements: Firstly he said “no man was punishable except for a distinct breach of the law established in an ordinary manner, before the ordinary courts of the land”, this played on the premise that for existence of the rule of law, no executive official can operate on discretionary powers, and that such an execution would be illegal under all circumstances. Secondly, Dicey indicated that no man could be above the law. This not only ensures equality before the law, but stated that every state official too would be subject to the rule of law. The concluding aspect of this Diceyan approach was that the significant characteristics of the UK constitution were ‘judge made’ , this led on to the suggestion that the UK does not require a written constitution as the judiciary is all we need to ensure that every personal liberty is followed and protected as such.

However Dicey’s 3 part theory did not go without heavy criticism. One critic, professor Jennings highlighted may discretionary powers that were held and indeed used during Dicey’s time of writing his theory. Criticisms has also gone into Dicey’s second element of the law applying to all equally, as it was found Dicey would make exceptions to returning soldiers and clergymen of the church. Taking on a more modern stance a child is doli incapax until the age of 10 (incapable of committing a crime). MP’s cannot be sued for defamation, foreign diplomats entering the UK are immune to the UK criminal law, and judges cannot be sued for the way in which they decide upon a case. These scenarios all highlight areas where the law applies differently to different groups of people, and Dicey has failed to take this on board.

An effective way of giving meaning to the rule of law is applying to it a modern real life example. This is illustrated by the commonwealth’s criticism of the way in which Robert Mugabe refused to enforce court orders to eject war veterans from white owned farms, as the commonwealth held his refusal denied the rule of law. When the angle of politics is aimed at the rule of law, it is highlighted that it is used ‘as a stick with which to beat other regimes’ [3] .

Another meaning of the rule of law is published by that of TRS Allan, who did not try to apply one definition to the meaning, but described the doctrine as ‘a corpus of basic principles and values, which together lend some stability and coherence to the legal order’. [4]

A jurist who posed much thought to the topic was that of Professor Craig, who attempted to provide light into the meaning by classifying the rule of law into 2. He said that there could exist both formal and substantive meanings of the rule of law. He set out that formal was associated with the proper administration within authority of the law, which would not seek to evaluate whether the outcome of such application was either good or bad. Substantive took the doctrine further by allowing evaluation on how good or bad the laws were by observing how they complied with certain rights.

Professor Raz touched on a controversial issue linked with the rule of law. He suggested that the doctrine demands neither democracy nor equality, and not even justice. Meaning that a non-democratic system based on racial segregation and the promotion of sexual inequality can conform to the model doctrine possibly even better than western democracies. This suggestion was heavily criticised by Lord Bingham, who highlighted that perhaps one of the most underpinned elements of the rule of the law was the important relationship with citizen and state, and to suggest that the rule of law could exist where freedom was restricted as such ‘infringes the underpinned concept behind the rule of law of individual and state whereby both parties sacrifice a measure of the freedom and power which they would otherwise enjoy’. [5]

Raz built up his theory showing certain similarities to that of Allan, suggesting that the doctrine is better understood form the form of a “corpus of basic principles” [6] , he developed 8 criteria: Firstly laws should be prospective, open and clear leading onto the fact that laws must not be retrospective as the effects can be rendered grossly unlawful. This is illustrated from a dictum in the case of Philips v Eyre [7] made by Lord Justice Willes that: “…introduced by the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law”. The second criterion is that laws should be relatively stable, followed by the requirement of the enacting of particular laws to be guided by open, stable and clear rules. Fourthly, and most importantly for this essay the independence of the judiciary must be guaranteed. This aspect included the method of appointment, conditions of service and security of tenure in the sense that judicial intervention is essential for the preservation of the rule of law. [8] Next, the theories of natural justice must be observed, followed by the requirement for courts to have review powers. Lastly the courts should be easily accessible and crime preventing agencies such as the police, such not be able to use their power to pervert the law.

To conclude the Rule of Law exists as a layer of protection between citizen and state, it dictates that the power of law should not be used arbitrarily. It appears to act as an intangible protective coating which mirrors the morality and consensus of society. But emerging as less clear cut when applied in Britain, mainly due to the nature of our constitution.

House of Lords

The Constitutional Reform Act 2005 sought to “redraw the relationship between the judiciary and the other branches of government and put it on a modern footing” [9] , with the reaching of the act to be wide and seeking to achieve various goals. However this essay shall categorise them into 2 main sections. Firstly the establishment of a Supreme Court which assumes the Appellate Committee of the House of Lords, together with that of the Privy Council (involving NI assembly, Welsh assembly and Scottish Parliament) [10] and thus removing Law Lords from sitting in the legislative chamber of the House of Lords. Secondly it seeks to redefine the office of the Lord Chancellor firstly by position, in the sense that the Lord Chief justice becomes head of the judiciary and secondly by role, in the establishment of a Judicial Appointments Commission, which limits the part of the chancellor to ‘one of accepting or, exceptionally, rejecting its recommendations, further confines the lord chancellor’s duties to the executive or political functions’ [11] .

Steyn is saying in the reported quote that Britain is unique where it seeks to create a Supreme Court and remove the mixed interests of the office of the Lord Chancellor due to it appearing compromised in the eyes of the British electorate. In no way is he denying the importance of the separation of powers, he is however contrasting Britain to other democracies in the world and distinguishing that they would never go as far as we in guaranteeing the separation of powers to such a great extent. In his report ‘the case for a supreme court’ [12] he says that in relying on the constitutional position of impartiality on the judiciary’s part and “in insulating the judicial function from the legislative and executive functions” the remaining elements being the rule of law and principles of judicial independence. That prototype of the separation of powers “is never absolute”. [13]

This report will now address the quote of Lord Steyn following the enacting of the Constitutional Reform Act in respect to the House of Lords. The House of Lords is the upper house in which before the act was passed served 2 functions. As a chamber of Parliament through its use in the enacting of legislation. However since the constitutional crisis of the Parliament Act (1911), the constitutional superiority of the Commons over the Lords has been recognised. [14] Secondly as a Supreme Court, it is in this role that the judicial function becomes apparent as the final court of appeal.

Lord Steyn argues that nowhere outside Britain would the position of the separation of powers be weakened just because the Supreme Court exists as part of the House of Lords. I believe what he is getting at is that, the British electorate see more pressing matters to be at the height of the separation of powers than the movement of the Supreme Court. Although the rule of law and separation of powers involve themselves as vital principles underlining the British constitution, there is a need to establish the more practical measures of the Supreme Court. It cost an estimated £59Mn to build and will have running costs exceeding £13mn

To conclude I disagree with the statement of Lord Steyn. It is my belief that Britain was long overdue to receive a supreme court. Many people argue that it is expensive and the current system works. But I find it disorganised and illogical to have the House of Lords performing two functions, even if there are separate bodies within the house. A counter assertion would be such that the Lord’s legislative capacity had been curtailed somewhat after the Parliament Acts (1911/1949) in the ability for the Lords to be taken out of certain bills, such as the fox hunting bill. But this is incorrect. It is a common misconception that the House of Lords can be commonly vetoed. It only happens under extremely rare circumstances, and thus should bare as no excuse for determining that the Lords was able to handle both matters impartially.

Office of the Lord Chancellor

The role and defined position of the office of the Lord Chancellor became a big part of the Constitutional Reform Act (2005). As Britain incorporated the Human Rights Act in October 1998, it was alerted that the current position of the Lord Chancellor needed to be rethought. It set the notion that the Lord Chancellor did not comply with the image of the separation of powers. The Lord Chancellor had a political influence in the executive as a minister, legislature as speaker of the House of Lords and was head of the judiciary. The Constitutional Reform Act (2005) renamed the position to ‘the Secretary of State for Constitutional Affairs’ and decided upon a selection process involving selection by the Crown on the recommendation of the Lord Chief Justice. A significant change to the requirements is that the above title does not require the individual to be either a judge or a law lord.

The Lord Chancellor believed that his role should have lost none of its roles or functions. Looking back at comment from Lord Wolf saying that: [15]

“Although it needed some transparencies there were some advantages of having the Lord Chancellor in the executive. He stood up for the interests of the judges. Who is going to stand up for the judiciary?”

However opposing views offer the suggestion that ‘there has never been the slightest hint, however, of Judges being under any pressure, directly or indirectly, to incline in the Government’s favour because their “boss” is a senior government minister.’ [16] However, if the government were to put pressure on the judiciary then how well would the judiciary stay impartial, and who would regulate such acts threatening impartiality? For example in 2001 when David Blunkett was Home Secretary, he laid pressure on the judiciary when he told them not to use Human Rights legislation to overrule the House of Commons [17] , if a similar situation were to happen then who would regulate this and ensure impartiality to the judiciary.

Professor Andrew Le Sueur, said the momentum to create the court “had little to do with constitutional reform aspirations per se and everything to do with continuing concerns about the future shape and management of two government departments — the Home Office (led at the time by David Blunkett, MP) and the Lord Chancellor’s Department (led by Lord Irvine of Lairg)” [18] . This is possible evidence that the Supreme Court does not really event on the rule of law, just brings the past to the attention of the electorate. After all, when the House of Lords performed judicial functions, they were outside of pubic scrutiny, now on the other hand, the public watch the separate cases, watch the revenue go out and even access a website.

I believe that Lord Steyn is correct to a certain degree, while true that judicial independence is essential, it cannot be said how other democracies (no matter how weak) would interpret such a situation, if it has not been implemented. After all, many aspects of the UK’s democracy appear to be different compared to any other. We have a constitutional monarchy and we have Parliamentary supremacy, so the truth of the matter is, the theory behind our judicial decisions must appear to be impartial. This is where I tend to agree with Lord Steyn, but more in particular Lord Woolf. The Lord Chancellor has been head of the judiciary for many years, and the system has worked. There was no reason to suggest that the British electorate had felt the judiciary and application of law was compromised.