Fundamental Constitutional Principles of Rule of Law

Although the term the rule of law is to be found in abundance throughout legal and British constitutional literature there is no legislative definition of what that term actually means. In this essay I will attempt to show what the broad perceptions of the rule of law are and whether or not it exists to protect the populace from abuses of state power, I will discuss some of the generally recognised opinions as to its definition and function and also demonstrate occasions where the rule of law, according to those definitions, has been applied and the result of that application.

It is important to note from the beginning that the rule of law is seen as being intertwined with the separation of powers doctrine and as such, one of the keystones of the unwritten constitution because of this it has many legal and political connotations that we may not be able to develop fully in this short essay. Lord Steyn would seem to agree with this interpretation when he said;

‘For my part two core meanings of our rule of law are essential to an understanding of our public law. The first is not a legal concept. The rule of law is a term of political philosophy or institutional morality. It conveys the kind of idea of government not under man but under laws. It eschews the instrumentalist conception of law that enables an oppressive regime to obtain its aims by the use of law, as happened in South Africa in the apartheid era. It addresses the moral dimension of public power…

In its second sense the rule of law is a general principle of constitutional law. Its central focus is to constrain the abuse of official power. It protects a citizen’s right to legal certainty in respect of interference with his liberties. It guarantees access to justice. It ensures procedural fairness over much of the range of administrative decision-making by officials’1.

Loveland puts it much more simply when he says ‘the rule of law is concerned with what government can do-and how government can do it’2. Or Alder when he introduced his chapter on the rule of law by saying that

‘In its most basic sense the rule of law means that all government powers should be subject to general rules. However the idea of the rule of law has been given a wide range of meanings although many of them amount to little more than saying that the law should be fair and just’3.

While Mcleod stated that he had identified two views of the rule of law. The formal view which merely requires that the appropriate legal formalities are observed to provide a set of identifiable rules and government which operates within the law and the other view, known as the substantive view which went a bit further in that it required the law to possess at least some substantive qualities4

Allen and Thompson go into much more detail in their book, Cases and Materials on Constitutional and Administrative Law, but for the purposes of this essay it is enough to attribute their view as stating that the rule of law is one of the fundamental doctrines of the British constitution and whereas ‘constitutions in general are concerned with the allocation of power and the control of its exercise, the rule of law is concerned with the latte”5. Section 1 of the Constitutional Reform Act 2005 states that nothing within the Act adversely affects, ‘the existing constitutional principle of the rule of law’ although it does not define what that principle is. Lord Bingham suggests that a definition could not be given because of the ‘extreme difficulty of formulating a succinct and accurate definition suitable for inclusion in a statute’6 He goes on to say by way of a definition that

‘All persons and authorities within the state, whether public or private, should be bound by and entitled to benefit of laws publically and prospectively promulgated and publically administrated in the courts’7.

We must also consider Dicey who, while his views attracted much criticism, still cannot be ignored, basically on account of the influence he has had on the development of administrative law. In his book, of which a large part was given to the rule of law, he attributes three views to the rule of law, absolute supremacy of ‘regular’ law, equality before the law and that the constitution is the result of the ordinary law. On the view of equality before the law he stated;

‘It means… equality before the law, or the equal subjection of all classes to the ordinary law of the land administrated by the ordinary law courts; the ‘rule of law’ in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals’8

As Loveland points out in his book Dicey’s view of the rule of law was heavily dependant on the separation of powers doctrine as Dicey saw it, which was, Parliament as the first branch of government responsible for the legislative function. The second branch as the executive with the responsibility of executing the laws (Dicey seems to have had a deep suspicion of the executive assuming as he did that they were likely to do things the legislature had not authorised) and the third arm which is the judiciary or the courts who provide the citizen with an avenue for redress if the executive has behaved in a manner contrary to the laws enacted by the legislature. Loveland also stresses that;

‘according to the orthodox British understandings of the principles of the rule of law and the separation of powers, the executive branch of government has no autonomous power to make law through legislation. The power to make legislation rests exclusively with Parliament’.

It is important to note, as Loveland points out, that Dicey feared democracy and felt that the extension of voting rights to all was uncalled for. He thought it necessary that the people be given protection against arbitrary use of state power but thought this best achieved through the ordinary courts as opposed to the system they employed in France at that time, which in Dicey’s view, favoured the officials. He was vehemently opposed to government intervention in social and economic affairs. That this interference would create a welfare state which would damage the rule of law and also that he was a product of an undemocratic society compared to what we have today9.

In contrast to Dicey’s opinions, Jones argued in his 1958 article that he accepted that the ultimate purpose of the rule of law (which had in his opinion benefited from the welfare state) was to protect people against state power holders but he believed that since the onset of the welfare state that Dicey so abhorred, an adjudicative ideal was needed involving the granting of wide discretionary powers on administrative bodies to enable them to deal with a wide variety of situations, without granting such bodies arbitrary powers. He did accept the need for court regulation but said that because Parliament sought to protect the wide societal interest, slight individual disadvantage may have to be accepted10.

This very issue of possible abuse by state power under the concept of the rule of law was directly addressed by Joseph Raz when he stated in his article entitled ‘The Rule of Law and its Virtue’ that;

‘The rule of law is a political ideal which a legal system may lack or may possess to a greater or lesser degree. That much is common ground. It is also to be insisted that the rule of law is just one of the virtues which a legal system may possess and by which it is to be judged. It is not to be confused with democracy, justice, equality (before the law or otherwise), human rights of any kind or respect for persons or for the dignity of man. A non-democratic legal system, based on the denial of human rights, on extensive poverty, on racial segregation, sexual inequalities and religious persecution may, in principle, conform to the requirements of the rule of law better than any of the legal systems of the more enlightened western democracies. This does not mean it will be better than those western democracies. It will be an immeasurably worse legal system, but it will excel in one respect: in its conformity to the rule of law’11.

Whereas Bradley and Ewing strike something of a balance between the leading views on the rule of law in their book when they say on page 101;

‘If the law is not to be merely a means of achieving whatever ends a particular government may favour, the rule of law must go beyond the principle of legality. The experience and values of the legal system are relevant not only to the question, ‘What legal authority does the government have for its acts?’ but also to the question ‘What legal powers ought the government to have?’12.

In stark contrast to all these views was the suggestion by Judith Shklar that the expression was meaningless and in 1987 on page 1 she stated;

‘may well have become just another one of those self-congratulatory rhetorical devices that grace the public utterances of Anglo-American politicians. No intellectual effort need therefore be wasted on this bit of ruling class chatter’13.

Most of these authorities would seem to agree in a broad sense as to what the requirements of the rule of law implies, that is, as a basis for the control of de facto arbitrary powers and as a defence of fundamental constitutional principles. Therefore as I have been asked to evaluate the possibility that the rule of law does in fact act as a defence against state abuse of power we should look at instances where the rule of law has been applied. In Entick v Carrington (1765), a case which involved an accusation of seditious liable against Entick and the issue of a warrant by the Secretary of state for Enticks apprehension. The king’s messengers broke into Enticks House and seized his papers which allowed Entick to bring a successful action under the tort of trespass as the warrant issued did not legally provide permission to break and enter his house or goods14.The judgement in this case would seem to corroborate Dicey’s views of the rule of law. A Government within and under the law as was shown when the state was not allowed to abuse its power in the form of a warrant which had no legal foundation. Equality under the law as the state was held to account under the ordinary law of trespass in the ordinary courts and a court based constitution because the ordinary courts provided a practical remedy against the state in the law of trespass15.

Contrast this to the judgement in R v secretary of Home Affairs, ex parte Hosenball [1977] where the Court of Appeal held that there was nothing to suggest that the Home Secretary had acted wrongly in this case. Mr. Hosenball was an American Journalist who was issued with a deportation order and told he could not appeal this decision, but could make representations before a panel. Also he had not been informed of the reasons behind this order only that it was a matter of national security. He argued that this was contrary to natural justice but Lord Denning MR observed that where

‘there is a conflict of interest between national security on the one hand and the freedom of the individual on the other. The balance between these two is not for a court of law. It is for the Home Secretary’16.

In the case illustrated above it would appear that there was little protection for the individual against state power however in the next case, R v Horseferry Road Magistrates’ Court, ex parte Bennett [1944], a New Zealand citizen who claimed that he was kidnapped in South Africa and brought to England where he was subsequently arrested on criminal charges had his request to adjourn the committal of his case to the Crown Court refused. When Bennett sought judicial review of the decision the High Court refused his application. The House of Lords held that the courts should take into account the circumstances that led to the defendant’s appearance before the court, and refuse to try him because he had been brought back to the United Kingdom without regard for the available extradition process. Lord Griffiths stated that;

‘The judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law’17

However in Liversidge v Anderson [1942] excessive deference was shown to the executive, although Lord Akin dissented, when it was held that under emergency legislation,(in the context of the second word war) a court could not inquire of a minister to give particulars on the grounds of which he had had reasonable cause to believe the detainee to be of hostile associations18. The controversial decision in this case was rejected in subsequent case law: see Lords Diplock and Scarman in Inland revenue Commissioners and Another v Rossminster Ltd and others [1980] where a warrant was served to search Rossminster’s premises but because Rossminster Ltd was not informed of the offences suspected or the persons suspected of committing them, even though the warrants followed the wording specified in section 20c of the Taxes Management Act 1970, The Court of Appeal granted, inter alia, an order of certiorari to quash the warrants19.

Finally I shall examine the more recent case of A and Others v Secretary of state for the Home Department [2005] (Belmarsh Detainees). Section 23 of the Anti-Terrorism, Crime and Security Act 2001 authorised the Home Secretary to detain non-UK nationals suspected of terrorism who, for practical or legal reasons, could not be deported. Although the UK had entered a derogation under Article 5 of the ECHR, Lord Bingham, while accepting that there was a public emergency sufficient to warrant the derogation, stated that detention without trail was not a proportionate response mainly because part IV of the 2001 Act only applied to deportable aliens but ignored British terrorists. Because of this a declaration of incompatibility with section 5 and 14 of the ECHR was issued20.

In conclusion, since the enactment of the Human Rights Act 1998 and the complications that it has brought for the courts, who cannot disapply a statue which is contrary to the rights protection provided under that same Act, only declare it incompatible, tensions between the judiciary and the executive have increased. It would seem from the cases examined that when the judiciary has taken an indulgent view towards the use of government discretion it has been in compliance with the separation of powers doctrine. As lord Woolf puts it on page one of his article;

‘I have no doubt that there is and has been, particularly over the last five years, tension between the judiciary and the executive, and that the tension has from time to time increased as a result of the

decisions of judges on application for judicial review. I, however, do not regard this as a matter of concern. It is no more than an indication that judicial review has been working well during a period

when the other restraints on the executive were not as great as ideally they should be’,

Perhaps due to further developments in our legislature such as the Constitutional Reform Act 2005 which provides for further separation of powers, a Supreme Court and judicial independence those tensions may ease but in answer to the question asked at the beginning of this essay perhaps on page two Lord Woolf has the answer;

‘There are, however, principles of the highest constitutional importance in play in this area. The sovereignty of Parliament is but an important aspect of the rule of law. There are other principles which are part of the rule of law, for example, that the public are entitled to have resort to the courts; that the courts are for the resolution of their disputes; that it is the courts’ responsibility to protect the public against the unlawful activities of others including the executive; and that it is the responsibility of the courts to determine the proper interpretation of the law’21.

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