The Government and the Principle of Legality

The requirement that government be conducted according to the law (the principle of legality) is a necessary condition of the rule of law; but insistence on legality alone does not ensure that the state’s powers are consistent with values such as liberty and due process.”

Bradley and Ewing Constitutional and Administrative Law (15th Edition) p95

Consider the above statement, discuss what is meant by the rule of law, and explain its importance in the contemporary United Kingdom constitution. Illustrate your answer with case law examples.

Currently our constitution is not a single written document; it is made from a system of laws, customs and conventions which define our state. In contemporary society our constitution which is dispersed in a variety of written and unwritten sources, still has three key principles; Legislative supremacy of Parliament, the Rule of Law and the Separation of Powers. The fact that the government must abide by the principle of legality is a vital condition of the rule of law, but alone this is not enough to ensure that fundamental human rights are protected.

The principle of legality states that the law should be clear, ascertainable and non-retrospective. “No one shall be held guilty of any criminal offence, which did not constitute a criminal offence…at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time” [1] This is set out in Article 7 of the European Convention on Human Rights (ECHR), it is not only important for it to be clear for individuals as to where the law stands to protect them, it is also important for there to be legal authority and/or action for the acts of government. “The Principle of Legality requires that the organs of the state operate through law” [2] With a majority in Parliament it is very possible for a Government to grant excessive powers to the Executive. This was demonstrated in A v Secretary of State for the Home Department [3] , whereby indefinite detention of suspected terrorists was granted and then later revoked by the courts, and also being found to be in breach of Article 4 and 5 of the ECHR. [4] Bingham argued that there must not be excessive discretion given to the state, supporting Article 7 of ECHR, stating that the powers given to the state are defined in law and must not be exceeded. This element of the constitution along with the principle of legality allows individuals to use the constitutional principles to challenge state authority. Ahmed and Others v HM Treasury [5] demonstrated how it is possible for a government to use such broad powers with such little evidence, and the Supreme Court held that the Treasury extended its powers unnecessarily.

The theory of Principle of Legality means that the law is clear, ascertainable and non-retrospective, but in practice this is not always possible. Debbie Purdy challenged the courts on this fact in 2009, R (on the application of Purdy) v DPP [6] , seeking clear guidance as to whether her husband would be punished if he helped her to attend euthanasia clinic, Dignitas in Switzerland. The courts decided that the law must also be accessible, intelligible and predictable, and held that the right to respect private life [7] also related to the way in which she chose to die, as well as how she decided to live her life. This case provides a strong argument that the principle of legality does ensure the state upholds fundamental human rights. Lord Diplock agrees that individuals should be able to have foresight of their actions. “The acceptance of the rule of law as a constitutional principle requires that a citizen, before committing himself to any course of action, should be able to know what the legal consequences are that flow from it.” [8] The principle of legality and the rule of law are intertwined as seen in R v Chaytor and Others [9] . This case relating to MPs expenses displays effectively one of Albert Venn Dicey’s key principles of the rule of law; that no one should be above the law. The case referred to the principle of parliamentary privilege and it was decided that evaluating the extent of privilege is ultimately a matter for the court. The defendants tried rely on Article 9 of the Bill of Rights [10] in which freedom of speech is guaranteed, however, the courts held that this exclusive jurisdiction did not extend to fraudulent claims made by MPs. This historical clause, introduced at the time of King Charles, was to enable MPs to discuss what they wished and protect freedom of speech, not to protect MPs from fraudulent behaviour.

When looking at the principle of legality, one of the main points is that law should not be retrospective. This is also true in relation to the rule of law, as retrospective law are seen as to be incompatible. In Burmah Oil Co Ltd v Lord Advocate [11] , a claim was made against the Crown for damage done during war time. However, Parliament later passed the War Damages Act 1965 with retrospective effect. This would disallow any claims for compensation and be in breach of the rule of law.

Albert Venn Dicey’s Rule of Law is constituted of three main principles;

No man is punishable…except for a distinct breach of the law established in the ordinary legal manner before the ordinary court

No man is above the law.

General principles of the constitution and fundamental rights are the result of judicial decisions…brought before the courts.

Entick v Carrington is a landmark case for showing Dicey’s principle in practice. The officers entering the house had no legality to do so, as the order had been given by people without such power. This not only breaks the rule of law but also raised issues relating to the separation of powers. In Dicey’s second principle he states that no men should be above the law, as previously explained in R v Chaytor and Others, all members of society should be subjected to the law. When previously looking at the principle of legality it was apparent that it is not always clear and consistent. It can also be argued that the Rule of Law implications are not always clean cut [12] In 2008 the House of Lords disagreed with the Divisional Court in R (Corner House Research) v Director of SFO [13] holding that the Directors decision to drop an investigation into charges of bribery against Saudi Arabia. Arguably the Rule of Law could be seen to be too lenient and too subjective, allowing judges to choose when to implement the principle, therefore making it far less of a ‘rule’ but more towards ‘guidance’.

There are critics of Dicey and these are split into the two varying schools of thought in the area; one which believe in the formal rule of law, and those who believe in substantive rule of law. One of the leading academics to criticise Dicey by using the formal model, is Joseph Raz. The formal rule of law view is that for Government to be under the law, the laws must adhere to particular procedural requirements. This view does not take into account any moral issues relating to the law, Raz is a leading advocate of this system and believes that in order to achieve certainty laws should be prospective, clear, adjudged by an independent judiciary. He argues that “A non-democratic legal system, on racial segregation, and racial persecution, may in principle, conform to the requirements of the rule of law, better than any of the legal …it will be an immeasurably worse legal system, but will excel in one respect: in its conformity to the rule of law…” [14] In essence Raz believes that if you have a dictator or live in a regime, fundamental human rights will not be respected, but that this is not a problem in relation to the rule of law, as even with the abuse of human rights conformity to the principle is still possible. A dictator as seen in Pinochet’s regime of Chile, can control law making and with that create their own laws with racial segregation and persecution, therefore allowing interference with fundamental human rights. This model conforms to the formal view of the rule of law, with lack of regard to morality but strength in certain and clear laws.

On the other hand, Fuller’s analysis of the rule of law takes a far more substantive view. He believes that to be a working legal system, there must be some form of internal morality present. Thus, the regime described by Raz which just commands authority in its conformity to the rule of law, is a Governmental system but not a legal system. According to this substantive view, the legal system must function for the interests of the population and not just those in the regime.

The fundamental human rights include values such as liberty and due process. From what has been discussed throughout this essay, it is clear that the principle of legality and the rule of law do not go far enough to cover fundamental human rights. The powers of the state are not consistent, and the insistence on the rule of law does not allow for uniformity and clarity. Both of which are not only important, but vital, in ensuring that the fundamental human rights of individuals are protected in contemporary UK constitution.