The rule of law
The idea of the rule of law can be traced back to at least the time of Aristotle who observed that given the choice between a king who ruled by discretion and a king who ruled by law, the later was clearly superior to the former. In more recent times, it is Albert V. Dicey who is credited with providing the logical foundation upon which the modern notion of the rule of law is based. Dicey did not invent the idea of the rule of law but he popularized it in the late nineteenth century. His book, Introduction to the Study of the Law of the Constitution (1885) can be seen as a strong defence of the English constitution when compared with the constitution of other countries, particularly those with written constitution. De Smith states that, ‘His ideas… were very influential for two generations; today they no longer warrant detailed analysis' (Constitutional and Administrative Law, 1998). It is true that Dicey's ideas went out of fashion for a time, but they have now come back into favour, particularly with senior members of the judiciary. Indeed it is now specifically mentioned in sections of the Constitutional Reform Act 2005.
The rule of law generally refers to two elements; firstly, the recognition that the use of governmental powers should be kept in check to prevent infringement upon civil liberties and secondly, the recognition that law and order should be maintained at all times to ensure a stable upon which the government's work may be done. Since United Kingdom has no written constitution or a clear separation of powers, it has a length history of constitutional development during which it can be argued that a balance has been reached between these two elements. Dicey in his book1 defended United Kingdom's system of an unwritten constitution2 and argued that this was a positive gain. Dicey summarized the rule of law under three main principles.
His primary principle concerned the rule of law and discretionary powers. No man could be punished or lawfully interfered by the authorities except for breaches of law. In other words, all government actions must be authorised by the law or government must act within its legal powers. The classic example of these ideas was in the judgment of Entick v Carrington (1765) where it shows the limitation to state power. It was held that there was no law supporting the issuance of warrant and invasion of Entick's house. The warrant was, therefore declared illegal and void. Dicey placed emphasis on this aspect of rule of law. He argued that nobody should be punished, except for a specific breach of law; and that every person irrespective of rank be subject to the law. In R v Horseferry Road Magistrates' Court, ex parte Bennett (1994), it was held that the authorities abused their power and this resulted in the entire prosecution being illegal. Lord Griffiths said, “… the judiciary accept 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”. The abovementioned cases clearly stated that the executive cannot lawfully assume powers which are not within the armpits of the common or statutory laws.
Dicey's second principle has the resounding title of ‘equality before the law'. Which means; no man is above the law and everyone, regardless of rank, is subject to the ordinary laws of the land. This reflect the famous quote by Thomas Fuller; “Be you ever so high, the law is above you”. This held that the government and its officials should not have any special exemptions or protections from the law. Dicey claimed that “every official … is under the same responsibility for every act done without legal justification as any citizen”. In M v Home Office (1994) 1 AC 377 HL, it was held that the executive was not above the law and that the Secretary of State was not entitled to claim Crown immunity. Dicey also did not like the French system where government activities were dealt with by separate administrative courts. He considered this to be too partial to the government and inferior to ordinary courts of law.
The final principle concerns individual rights. There is no need for a bill of rights because the general principle of the constitution is the result of judicial decisions determining the rights of the private person. The courts protect them in their decisions by developing the common law in a way that respects individual liberty. Parliament legislates on particular problems. In contrast, Bills of Rights are documents which promise all sorts of rights. These promises are so general and capable of so many meanings that they are meaningless. Again the Bill of Rights might not be respected by the government and might be unenforceable. This reveals Dicey's belief that the common law affords greater protection to the citizens than a written constitution.
In particular, individual and civil liberties are to be determined and protected by the courts in accordance with the common law in the United Kingdom and are not derived from any one particular instrument. It is also important to note that the rule of law does not refer to any fundamental or superior law. The law referred to is the law as enacted by Parliament in the form of legislation and as applied by the courts in the form of the common law.
The importance of the rule of law in judicial review of administrative action designed to keep those persons and bodies with delegated powers within the scope of the power conferred upon them by parliament and prerogative. Ultimately judicial review acts as a check on the executive and promotes the rule of law. All of these grounds have been rationalized by the House of Lords into three principal categories in the case of GCHQ (1985) as irrationality, illegality and procedural impropriety. One limitation of judicial review, however, is that the powers of the court can only be exercised over a matter which it is competent to determine i.e. on a justiciable issue.
A clearer understanding of the rule of law can be seen when Government (the executive) cannot exercise power which is not authorised by the law, effectively constraining government power. In the case of Entick v Carrington (1765), a warrant to search and seize private papers for alleged seditious writing was held to be illegal. According to Lord Bridge of Harwich he said that; “There is, I think, no principle more basic to any proper system of law than the maintenance of the rule of law itself”, in R v Horseferry Road Magistrates' Court, ex parte Bennett (1994) where the House of Lords decided a trial could not go ahead where someone was improperly extradited to the UK to face charges. Lord Griffiths said in the same case “if the court is to have the power to interfere with the prosecution in the present circumstances it must be because 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”. Whereas in M v Home Office (1993) the House of Lords found that the court can grant an injunction against an officer of the Crown. In the case of Laker Airways Ltd v Department of Trade (1977), the doctrines of ultra vires and natural justice are also examples for judicial control of authorities.
On the other hand, if the Government does not like the result it can usually reverse it by legislation. There are many examples of the government, through Parliament enforcing its will when the courts have ruled against them. These include, Burmah Oil v Lord Advocate (1964) HL, where parliament passed the War Damage Act 1965 enacted to prevent others obtaining compensation. In Congreve v Home Office (1976) CA, the Home Secretary tried to prevent purchase of TV licences to beat the rise in cost of the licences. After Council of Civil Service Unions v Minister for the Civil Service (1984) HL the government banned trade union membership at a listening station. Despite a court injunction the Home Office deported M, claiming a misunderstanding in the case of M v Home Office (1993) HL. In R v Home Secretary ex p Fire Brigades Union (1995) HL, the Home Secretary was held to be acting ultra vires when attempting to introduce a new tariff for compensation under the Criminal Injuries Compensation Scheme under the royal prerogative rather then under the statute, the Criminal Justice Act 1988. All the abovementioned cases illustrate how the rule of law operates so as to ensure that officials are not able to wield powers not granted to them by law.
Nowadays, there is mechanism for applying the rules. The rules apply to all persons, no one should be above the law and all people should be treated equally. As said by Lord Denning, “Be you ever so high, the law is above you” memorably in Gouriet v Union of Post Office Workers and Others (1977) CA. The law should be applied without fear or favour, malice of ill will, or prejudice, bias or fear from others, particularly the powerful. This means there must be an independent and impartial judiciary.
Apart from the above, the vagueness of the concept of the rule of law is to be a practical relevance to an evaluation of the actions of the government. TRS Allan explained that Joseph Raz's own explanation of the rule of law is that the law should be framed and administered in such a manner that it is capable of guiding the behaviour of its subjects. It is possible to see the rule of law as being too vague, a concept which to be of practical use because modern government can hardly operate without discretionary power under Section 24 of Police & Criminal Evidence Act 1984. In the Act itself, there are safeguards i.e. Sections 78(1), 76(1) and 76(2), 82(3) and the Codes of Practice and the courts supervisory role to reduce the potential for abuse (Entick v Carrington (1765)). Despite that, the compulsory acquisition of land by the government is necessary for the development of the United Kingdom. In circumstances where such a power is exercised, compensation is always given. The courts also supervise the exercise of this power under administrative law. Even powers or immunities given to allow the proper performance of functions effectively: judges' immunities and the immunities of government officials, diplomats, the Queen in her personal capacity and also the additional powers given to the police to perform their functions. Immunities given are an exception to the general rule and everyone is subject to the ordinary courts and it is necessary to ensure the proper administration of justice.
Rule of law's main criticism is that, it fails to deal with the supremacy of the Parliament. If Parliament legislates in a way that is contrary to the rule of law, it is still the law and there is noting that the courts can do about it. Statutes can annul inconvenient court decisions. For example, the War Damage Act 1965 reversed Burmah Oil v Lord Advocate (1965) AC 75, where the House of Lords ordered the government to pay compensation to Burmah Oil for the wartime destruction of its oil installations. Statutes also can grant government officials some immunities from legal action under the Crown Proceedings Act 1947. Some Acts of Parliament grant the government wide and uncontrolled discretionary powers under the Deregulation and Contracting Out Act 1994. Dicey claimed that Parliament would protect our liberties and restrain the government. Perhaps that was true in 1885, but nowadays the government of the day controls Parliament through its majority and can nearly always get its own way.
The main aspect from Dicey's rule of law was that the government must clearly defined legal powers to authorise its actions. Under the unwritten constitution it is in fact difficult to be precise about the legal powers that the government possesses. Although prerogative powers still exist, it can be difficult to identify those powers accurately. Example in the case of R v Home Secretary ex parte Northumbria Police Authority (1988) 1 All ER 556 the court accepted the existence of prerogative power, to maintain peace in the realm, which had not previously been identified. Again much of the constitution is convention, not law for example, the powers of the Prime Minister. As they are not law, the courts cannot control these powers. Indeed there must be some doubts about whether the courts are always keen to ensure that the government keeps within its legal powers. In the case of Malone v Metropolitan Police Commissioner (1979) Ch 344, Malone's telephone had been tapped by the police. He claimed that there was no law that authorised telephone tapping. These facts have strong similarities to the classic rule of law case, Entick v Carrington (1765). However, in Malone the judge came to the opposite conclusion where it was held no law forbade telephone tapping by the police, therefore it must be legal.
Despite of the above, the rule of law still has its defenders; T.R.S. Allan (1985) Cambridge Law Journal 111 stressed that Parliament still has a controlling effect on the government, particularly as it is elected by the people. The government does not always get its way in Parliament and although can be persuaded to change the law in a way favourable to the government, until that has happened the government must obey the existing law. Judges will ensure that they do. Judges also can minimize the effect of ‘unjust' laws by using techniques of statutory interpretation.
Overall, the rule of law is considered to be one of the fundamental doctrines of the constitution of the United Kingdom. Constitutions are concerned with the allocation of power and the control of its exercise. “Government of laws and not of men” this was said by Aristotle way back in Ancient Greece. Every government and legal system in history has involved both rules and discretion and elimination of all discretionary power is both impossible and undesirable. The rule of law means, in one sense, government by the law but obviously government is by people as well as by law. As soon as the governing people are added in, government cannot be by law alone. However the situation is not impossible because the making of particular laws should be guided by open and relatively stable general laws. The rule of law thus stands in the peculiar state of being the pre eminent legitimating political ideal in the world today, without agreement upon precisely what it means. However an appropriate quote would now be; “The rule of law is a political ideal which a legal system may lack or possess to a greater or lesser degree”. If the rule of law is to have any meaning in a democratic society, it must mean at least that those who enforce the law abide by the law; there must be no room for an “ends justifies the means” mentality.