The Rule of Law Lecture

Introduction

The ‘rule of law’ is widely accepted to be a critical part of an effective constitution; its principal function is to constrain government action. It is a topic that has been subject to a significant amount of academic debate, so this module aims to summarise a number of the main academic arguments on the subject. There is significant disagreement initially on how to define the rule of law. While some scholars have suggested that it should be ‘content-free,’ dealing only with the form of law and procedural matters, others have suggested that it should be ‘content-rich’ and should contain substantive elements requiring laws to comply with fundamental rights.

The rule of law has been referred to as a ‘wrapper’ that is placed around a bundle of constitutional principles. At one extreme, the rule of law is merely a rhetorical device or a political philosophy and its content is unimportant (the content-free view). At the other extreme, the rule of law determines the validity of law and so laws that conflict with its principles are invalid (the content-rich view). In the UK, the rule of law functions in two ways: firstly, that courts should interpret legislation in a way that gives effect to the rule of law; secondly, that the rule of law determines the validity of government action and some legislation. This is how the rule of law functions, but opinions vary on what the concept known as the rule of law means.

A. The history of the rule of law

In the late Roman period, the view was established that royalty was above the law and subject only to the law of God and not to other men. The path to the institutionalisation of the rule of law advanced and then at times was weakened. The Magna Carta 1215 enshrined the principle that the King was not above the law. Barons demanded that King John accept the Charter after a period of domestic unrest due to the King’s focus on foreign war and his raising of taxes to finance the war with France. The final version of the Magna Carta provides that:

• No bailiff should prosecute without producing witnesses in evidence;
• Lawful imprisonment or exile requires judgement by one’s peers in accordance with the law of the land;
• Right or justice cannot be denied or delayed;
• Knowledge of the law must exist before it can be enforced;
• Restorative justice should exist where one’s land or liberties are removed without a legal sentence of one’s peers;
• Unjust and illegal fines that the King had imposed should be repaid;
• No one is above the law, including the clergy or laity, as far as it pertains to them.

In Prohibitions del Roy (1607, published 1656) (1572–1616) 12 Co Rep 63, Sir Edward Coke asserted that the King could not act as a judge using his own reason to reach decisions; instead, cases should be decided by judges who applied the law to the facts.

The Petition of Right 1628 was a petition from the Barons to the King to remind him of the principles of the rule of law established in the Magna Carta. The Petition of Right extended the rule of law and due process to encompass some implied terms of the Magna Carta. The principles encompassed within the Petition of Right include:

• No freeman should be imprisoned or removed of his liberties without appropriate judgement by his peers, within the due process of law;
• No man should be ejected from his land, imprisoned, or disinherited without being brought to answer by due process of law;
• Despite these principles, many people had been brought before the King and imprisoned without being brought before the justices; these individuals were just detained at the King’s command and returned several times to prison without being charged;
• No individual should be sentenced to death without being judged according to the principles of the Magna Carta and the law of the land. The King had imposed martial law and put individuals to death without due process.

The right of habeas corpus is an essential feature of the rule of law. It is not explicitly mentioned in the Magna Carta but was the subject of much future legislation. It matured in legal terms in the Petition of Right. It requires a detainee to be brought before the court so that the legality of their detention can be determined; if the detention is not lawful, the prisoner must be released.

The Habeas Corpus Act 1679 specifically legislated for the fact that a detainee was entitled to be brought before a court to subject his or her detention to judicial and hence legal scrutiny.

The Bill of Rights 1689 stated that law could not be made, repealed or suspended without the will of Parliament. The Crown could not manipulate the court system, and subjects were now able to bring an action against the Monarch. The Monarch and courts could not subvert the requirements of habeas corpus. The Bill also sets out the basic and fundamental principles that determine the operation of the rule of law.

The scope of the rule of law remained vaguely defined during this period. Although procedures were delineated, questions remained. Writings of theorists and scholars from the late 19th century onwards have gone some way to elaborating upon the details of its definition.

B. Defining the rule of law

Throughout the 20th and 21st centuries, the rule of law has become a term of widespread academic debate, court judgments and parliamentary debates. It is referred to in s.1 of the Constitutional Reform Act 2005 (which provides that the Act “does not adversely affect…the existing constitutional principle of the rule of law”), and in the preamble to the European Convention on Human Rights 1950. It is also referred to in the preamble to the Treaty on European Union, although following the UK’s withdrawal from the EU on 31 January 2020, the TEU no longer has direct legal effect in the UK; it remains relevant, however, as an example of international recognition of the rule of law concept.

Lord Bingham, ‘The Rule of Law’ (2007) 66 CLJ 67, 69, argued that:

‘The core of the existing principle is…that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts.’

Lord Bingham subsequently defined eight sub-rules:

1. Law should be accessible, clear and predictable;
2. Questions of legal right and liability should be decided by application of the law;
3. The law of the land should apply equally to all, except when objective difference requires differentiation;
4. Public officials should exercise their powers in good faith, and not exceed their powers;
5. The law must protect fundamental rights;
6. A method should be provided, at reasonable cost, to resolve civil disputes;
7. Adjudicative procedures provided by the state should be fair;
8. The rule of law requires the state to comply with its obligations in international law.

Lord Bingham’s principles informed the Venice Commission (the European Commission for Democracy Through Law), which adopted its Rule of Law Checklist in 2016 (Study No 711/2013, CDL-AD(2016)007), drawing on these and other formulations.

C. Content-free or content-rich?

There remain a number of important questions regarding the ‘rule of law,’ one important one being whether it should be content-free or content-rich.

Joseph Raz, ‘The Rule of Law and its Virtue’ (1977) 93 Law Quarterly Review 195, 210–11, argues for the former view. He argues that the rule of law should only be about the form and procedures by which law is created. There is no content for the rules prescribed within this view. Raz offered a number of principles for the rule of law:

• All laws should be prospective, open and clear;
• Laws should not be subject to constant change;
• General and clear rules should be applied to the creation of laws;
• The judiciary should be independent;
• Decision-making by public officials should follow principles of procedural fairness;
• The courts should have review powers over decisions;
• Courts should be easily accessible;
• Crime prevention agencies should not have discretion to pervert the law.

Raz argues that the rule of law is a negative concept, which is merely designed to minimise the harm to freedom and dignity which the law may create in the pursuance of its goals. The rule of law is meant to enable the law to promote social good. A content-free concept of the rule of law thus does not specify what the substantive rules should be, just that the process of the creation of law should be carried out with procedural fairness. Law can be discriminatory, but if it is created following normal Parliamentary procedures, then it is following the ‘rule of law’ according to Raz’s concept.

A content-free rule of law takes no account of social inequalities. As stated by Anatole France in his bon mot: ‘The law, in its majestic equality, forbids the rich and poor alike to sleep under bridges, to beg in the streets, and to steal bread.’ When the rule of law is applied in this content-free manner, it creates procedural fairness, while the law still functions to preserve inequalities. France implies that laws can be applied to everyone, but in reality they are only applied to the poor, as only the poor will need to steal food, sleep under bridges or beg in the street.

Paul Craig, in ‘The Rule of Law’ in Relations between the Executive, the Judiciary and Parliament, House of Lords Constitution Committee, 6th Report 2006–07, HL 151, p.101, explains the rationale for the ‘content-free’ rule of law. Craig argues that the rule of law should have a function that is independent of the necessity for law to incorporate ‘good laws.’ There is already a wealth of literature covering the discussion of the rights which should subsist within a just society; these should remain independent from the concept of the rule of law. Arguments about a just society or the preservation of individual rights are certainly worthy; however, these should be made independently of arguments regarding the rule of law.

Ronald Dworkin, ‘Political Judges and the Rule of Law’ in A Matter of Principle (OUP, 1985), pp.1–12, supports the alternate view, challenging the content-free idea of the rule of law. Dworkin refers to the ‘rule book’ conception of the rule of law, in which substantive justice is an independent ideal and is in no sense part of the ideal of the rule of law. He distinguishes this from the ‘rights’ conception of the rule of law. It assumes that citizens have moral rights and duties with respect to one another and political rights with respect to the state as a whole. This concept of the rule of law does not distinguish between the rule of law and substantive justice; instead, it requires, as part of the rule of law, that rules within the rulebook encompass and enforce moral rights. This rights conception is more complex than the ‘rulebook’ conception. Compliance with the rulebook on its own is clearly not sufficient for justice, although a breach of the rulebook theory of the rule of law is likely to lead to injustice. However, a society that accords with the rights conception of the rule of law is likely to be a just society.

D. Dicey and the rule of law

A.V. Dicey, Introduction to the Study of the Law of the Constitution (1885; 10th edn, Macmillan & Co, 1959) pp.187–95. Dicey, writing about the rule of law in the 19th century, still has significance in today’s debates. For Dicey, the rule of law was a particularly British achievement, marking out the United Kingdom as superior to other countries. For Dicey, the supremacy of the rule of law has three distinct though related conceptions:

• No individual can be punished except through the process of law and the courts.
• No one is above the law; this includes the Prime Minister, who is subject to the ordinary law in the same way that other citizens are.
• The constitution is pervaded by the rule of law, since general principles of the constitution are the results of judicial decisions which determine the rights of private citizens.

Sir Ivor Jennings (1903–1965) was a Fabian socialist who approved of government regulation of business and social security provision, and disagreed with Dicey’s hostility to the interventionist state. In The Law and the Constitution (1933), Jennings criticised Dicey’s work, arguing that it failed to deal with the powers of government. In his view, Dicey was more concerned with constitutional relations between Great Britain and Ireland than with relations between poverty, disease and increased industrialisation. Dicey’s focus was only upon tort law and not public law; Jennings questioned Dicey’s narrow focus of the meaning of the rule of law, due to its concentration on the fact that public officials can be sued by people aggrieved by a tortious act or omission in the course of their duty. Jennings argued that ‘this is a small point upon which to base a doctrine called by the magnificent name of "rule of law"’ (The Law and the Constitution (5th edn, 1959), p.312).

Despite his critics, Dicey’s three propositions are still highly influential and referred to by judges in the 21st century.

• In R v Rimmington [2006] 1 AC 459; [2006] 2 All ER 257, Lord Bingham stated that conduct which is forbidden by law should clearly be indicated as such and that no one should be punished for something that was not a criminal offence when the act was committed.
• In Sharma v Brown-Antoine [2006] UKPC 57; [2007] 1 WLR 780 (TT), Lord Bingham and Lord Walker, sitting in the Privy Council, stated that no individual should be immune to the criminal law, which should apply to all individuals alike. High office cannot excuse conduct that would lead to prosecution, based on the principles of supremacy of law, equal subjection to the law and the common law relationship between the government and the citizen.

E. Is the rule of law a useful concept?

John Griffith (1918–2010), ‘The Political Constitution’ (1979) 42 Modern Law Review 1, 15: individual rules of law may be good or bad, but ‘the law’ is undeniably good and should be upheld to prevent chaos. The rule of law has been misused to justify upholding the status quo. It is used to criticise those who state they are against the Monarchy or a particular Law Lord. The rule of law has a correct function in ensuring that public authorities do not exceed their powers and that criminal offences are dealt with in a fair and just manner; but the concept has also been misused to preserve legal and political institutions which are no longer relevant.

Martin Loughlin, ‘The Rule of Law in European Jurisprudence,’ Study 512/2009 (Venice Commission 2009). Since law is acknowledged to be a human creation, it cannot be placed above human intention. Laws themselves do not rule, since ruling requires action and laws cannot act. He argues that although a coherent formulation of the general concept of the rule of law can be devised, this formulation is entirely unworkable in practice. As a result, the rule of law must not be considered as amounting to a foundational concept of public law. Its main strength is as an aspiration, but it must be recognised that its direction remains an essentially political task.

Each country has its own institutions which protect the rule of law; in the UK, this is done by the three branches of government: the judiciary, Parliament and the government.

F. Judicial interpretation of the rule of law

Historically, constitutional lawyers have extolled the virtues of the UK’s adherence to the rule of law. In countries with codified constitutions, judicial responsibility for the rule of law lies in their power to interpret and apply the terms of the constitution. In the UK, without a codified constitution, the judges apply the common law to protect the rule of law.

The courts have interpreted the rule of law through a selection of cases that have examined the legality, the irrationality or the procedural impropriety of the actions of the executive or public bodies, or whether their actions conform to the Human Rights Act 1998. The main principles of the rule of law, along with judicial interpretation, are considered here.

i. No one must be punished by the state except for a breach of the law

Punishment without trial has been brought back into focus due to anti-terrorism legislation, including s.21 of the Anti-Terrorism, Crime and Security Act 2001 (ATCSA 2001), which permitted the indefinite detention without charge of foreign nationals suspected of involvement in terrorism. The detention provisions of the ATCSA 2001 were subsequently repealed by the Prevention of Terrorism Act 2005, which introduced control orders, themselves later replaced by Terrorism Prevention and Investigation Measures (TPIMs) under the Terrorism Prevention and Investigation Measures Act 2011.

In A and others v Secretary of State for the Home Department [2004] UKHL 56, the appellants were detained without trial on grounds that they were suspected of involvement in terrorist activity and were alleged to be a danger to the public. The appellants claimed that if they were returned to their home countries, they would be killed and could not be deported. The Home Secretary certified that the detainees could be held indefinitely without trial.

Lord Bingham of Cornhill, in the House of Lords: the appellants were all foreign non-UK nationals. None had been subject to criminal charge. The right to liberty exists within Article 5(3) of the European Convention on Human Rights (ECHR). The UK had sought to derogate from the ECHR under Article 15, claiming that a ‘state of emergency’ existed in the light of the terrorist attacks of September 11, 2001. The House of Lords found that indefinite detention without trial was always illegal; its justification had to be utterly exceptional. Since the legislation was discriminatory against non-nationals, it was not justifiable. The case remains one of the most important modern statements of the rule of law by the UK’s highest court.

ii. Government under law: equality before the law

In M v Home Office and another [1994] 1 AC 377 HL, M was a citizen of Zaire (now the Democratic Republic of the Congo). He sought political asylum in the UK; his claim was rejected, as was his claim for judicial review of the decision. He was informed he would be deported, but disputes between the Secretary of State and the Home Office led to his deportation being ordered, then postponed, then reordered, with neither side appearing to be aware of their own legal powers. The Home Secretary was eventually held to be in contempt of court. The principle that the executive is subject to full judicial oversight was upheld in this case.

In R v Mullen [2000] QB 520, CA, the appellant had been unlawfully deported to the UK to face criminal charges. Mullen claimed he had been forcibly brought to the UK rather than extradited according to the law. The case reached the Court of Appeal to decide whether his unlawful extradition rendered his final conviction for conspiracy to cause explosions unsafe. The CA held that in order to uphold the rule of law and the administration of justice, his conviction must be quashed. The case confirms that whatever the crime the appellant was accused of, it does not justify the state acting outside the law.

More recently, the principle that government must act under law has been powerfully affirmed by the Supreme Court. In R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, the Supreme Court held that the government could not use prerogative powers alone to trigger Article 50 TEU and begin the process of withdrawing the UK from the European Union; an Act of Parliament was required. The case reaffirmed that the executive cannot alter domestic law or remove rights conferred by Parliament without Parliamentary authority.

In R (Miller) v The Prime Minister [2019] UKSC 41, the Supreme Court held that the Prime Minister’s advice to the Queen to prorogue Parliament for five weeks was unlawful, null and of no effect. The Court held that the prorogation had the effect of frustrating Parliament’s ability to carry out its constitutional functions without reasonable justification. This was a landmark application of the rule of law to executive action.

iii. Individuals’ rights are protected through the ordinary law and the ordinary court system

The process of judicial review allows an individual to challenge a decision of the executive through the courts.

The importance of access to courts as an element of the rule of law was powerfully stated by the Supreme Court in R (UNISON) v Lord Chancellor [2017] UKSC 51. The Supreme Court held that the Lord Chancellor’s introduction of fees for bringing claims in employment tribunals was unlawful because the fees effectively prevented access to justice. Lord Reed gave an extensive analysis of the constitutional right of access to the courts as a fundamental component of the rule of law, holding that the right is inherent in the rule of law and can only be curtailed by clear statutory authority. The fees were quashed.

In R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22, the Supreme Court considered whether an ouster clause in the Regulation of Investigatory Powers Act 2000 could exclude judicial review of the Investigatory Powers Tribunal’s decisions. The majority held that it could not, applying the rule of law principle that the courts must have the final word on the legality of government action. Lord Carnwath stated that the rule of law requires that individuals should have access to an independent forum for the determination of their rights.

iv. Legal certainty and non-retrospectivity

The rule against the retrospectivity of criminal law was upheld in the joint cases of R v Rimmington; R v Goldstein [2006] 1 AC 459; [2006] 2 All ER 257, HL. In this case, it was the legal certainty of the common law that was in question. The appellants submitted that the crime of causing public nuisance, which is governed by common law and not statute, is too uncertain and lacks predictability. The court found that within the common law the doctrine of judicial precedent is an indispensable foundation upon which to uphold legal certainty. The requirement was for sufficient rather than absolute certainty, which the House of Lords upheld was provided by the case-by-case basis of judicial precedent.

v. Fair hearing by an independent judiciary

In Matthews v Ministry of Defence [2003] 1 AC 1163; [2003] 1 All ER 689, HL, a former member of the Navy claimed personal injury as a result of exposure to asbestos during his time as a member of the armed forces between 1955 and 1968. The MoD claimed it was not liable due to s.10(1) of the Crown Proceedings Act 1947, which gave immunity to the Crown in respect of claims by members of the armed forces for injuries attributable to service. This provision was repealed by the Crown Proceedings (Armed Forces) Act 1987. The House of Lords held that s.10(1) of the 1947 Act did not offend against the right to a fair trial under Article 6 ECHR, because it did not bar the courts from considering the case; the Crown was permitted to limit liability for its tortious acts.

In R (on the application of Anderson) v Secretary of State for the Home Department [2002] UKHL 46; [2002] 4 All ER 1089, HL, A was convicted of murder and given a mandatory life sentence, which permits the prisoner to be considered for release on licence. At that time, the Home Secretary held the power to set the tariff (the minimum term to be served before the prisoner could be considered for release). Lord Steyn held that “the power of the Home Secretary in England and Wales to decide on the tariff to be served by mandatory life sentence prisoners is a striking anomaly in our legal system” [para 51]. He ruled that an accused may be tried and convicted only by the courts, on the basis of the rule of law since 1688. The tariff had been left in the hands of the Home Secretary, but this was subject to review by the courts as to whether the executive had breached Article 6 in setting the tariff. Following this case, the power to set minimum terms for mandatory life sentences was transferred from the Home Secretary to the judiciary by s.269 of the Criminal Justice Act 2003.

vi. The rule of law and substantive judgments

Traditionally, judicial review has been restricted to the legality, rationality and procedural propriety of the executive’s action or omission rather than the review of the content of its decision. The following case considers whether judicial review should extend to reviewing the substance of the executive’s decision in matters related to human rights.

In R (on the application of Al Rawi and others) v Secretary of State for Foreign and Commonwealth Affairs and another [2006] EWCA Civ 1279, the CA held that the role of the courts has expanded in human rights cases to consider the proportionality of the decision, as well as its strict compliance with the law. This was a consequence of the Human Rights Act 1998.

G. The UK legal system and the rule of law

Arbitrary and wide discretionary powers

Statutory provisions often afford public bodies the discretion to act in ways they consider to be reasonable. This discretion can be wide and arbitrary, which provides a threat to the rule of law. This occurs frequently in relation to issues of national security and immigration involving suspected terrorists. The following statutory powers are relevant here:

• Section 3(5)(a) of the Immigration Act 1971 provides that an individual may be deported if the Secretary of State deems their deportation conducive to the public good.
• Section 21(1) of the Anti-Terrorism, Crime and Security Act 2001 (now repealed) permitted the Secretary of State to detain foreign terror suspects if they believed the person’s presence was a threat to national security.

In SSHD v Rehman [2003] 1 AC 153, the provisions of the Immigration Act 1971 as amended by the British Nationality Act 1981 were considered. The House of Lords considered whether it was necessary to engage in, promote, or encourage violent activity targeted at the United Kingdom, and whether a high degree of probability that the applicant was a threat to national security was necessary before he or she could be deported. The House of Lords held:

• The Secretary of State had discretion to determine what was conducive to the public good;
• The Secretary of State could take an overall view;
• Actions against other states which threaten the national security of the United Kingdom can also be taken into account;
• The standard of proof of specific facts is based on the ordinary civil balance of probability.

In R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60, the Serious Fraud Office was investigating allegations that British Aerospace (now BAE Systems) paid enormous bribes to Saudi Arabian officials while negotiating aircraft sales. The Saudis threatened to stop cooperating with Britain in anti-terrorism measures if the investigation was not halted and to withdraw from the deal. The Divisional Court held that the SFO’s decision to stop the investigation was based upon threats and incompatible with the rule of law. The House of Lords, however, allowed the SFO a very broad discretion to consider the possibility of the threat to British lives and national security if Saudi Arabia failed to continue its intelligence sharing in relation to the ‘war on terror,’ and this was a relevant consideration in the exercise of his discretion.

Privileges, immunities and the rule of law

Equality before the law is potentially undermined by special powers, privileges and immunities from ordinary law that Parliament has granted.

• Article 9 of the Bill of Rights 1689 affords MPs absolute immunity from actions in the tort of defamation arising out of anything said or done in the course of parliamentary debate or proceedings.
• The International Organisations Act 1968 (as amended) provides immunities and privileges to a number of international organisations and bodies, as well as certain categories of individuals connected to them.
• The Trade Union and Labour Relations (Consolidation) Act 1992 confers a number of immunities upon trade unions.
• The Diplomatic Privileges Act 1964 brings the 1961 Vienna Convention on Diplomatic Relations into domestic UK law and confers immunity from prosecution upon diplomatic staff and their families.

The judicial extension of the criminal law

Dicey argued that ‘a man may with us be punished for a breach of law, but he can be punished for nothing else’; hence the courts should not be able to extend criminal offences laid down by Parliament.

In Shaw v DPP [1962] AC 220, Shaw published a directory which contained the names and addresses of female sex workers. He was charged with conspiracy to corrupt public morals; conspiring with advertisers. After being convicted, he appealed on the grounds that there was no such offence as ‘conspiracy to corrupt public morals.’ The House of Lords held (Lord Simonds for the majority) that there was a residual judicial power to enforce the supreme and fundamental purpose of law, which in this case included the protection of safety, order and moral welfare of the state against novel and unexpected attacks. Lord Reid, in dissent, argued it was contrary to the rule of law for the judiciary to extend criminal offences on public policy grounds.

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