The Rule of Law 5.0
Introduction
The rule of law is the principle that those exercising a governmental function should not be able to exercise power arbitrarily, but rather be subject to legal controls. '... powers exercised by politicians must have a legitimate foundation ... based on authority conferred by law.' Professor De Smith 1959 Adherence to the rule of law is necessary in ensuring that individual rights are protected from erosion or interference by those governing the state. However, scholars and commentators are divided over the actual definition of the rule of law and, indeed, over its worth. For some, the idea that government action has a legal foundation provides nothing more than a procedural safeguard against the exercise of arbitrary power. For others, the content of the principle is much more substantive, requiring not only consistency with legal form, but also with fundamental rights. The principle of the rule of law has a long heritage. Advocated by Aristotle in ancient Greece as a protection against tyranny, it found its way through medieval theologians, such as Sir Thomas Aquinas, into the core of modern liberal thought. It remains a fundamental principle of all modern liberal and democratic societies. 'It is better for the law to rule than one of the citizens ... so even the guardians of the laws are obeying the laws.' Aristotle (translated by Warrington) c. 350BC '... a government of laws not of men. ' John Adams, Constitution of the Commonwealth of Massachusetts (1780) 'It is contrary to the general rule of law, not only in this country, but in every other, to make a person judge in his own case ...' Justice Blackburn (later first Lord of Appeal in Ordinary) 1866 'It is essential, if a man is not to be compelled to have recourse, as a last result, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law. ' The Universal Declaration of Human Rights 1948 In the UK, the rule of law has arguably become a more significant and constitutionally important concept in recent years, as illustrated by direct reference to it as a 'constitutional principle' in section 1 of the Constitutional Reform Act 2005. Interestingly, there is no definition of what is meant by the 'rule of law' in the Act. Instead, the drafters left it to the judges to interpret what the term means in the context of a case. Such a case was heard in the courts in 2008. In R (on the application of Corner House Research) v Director of the Serious Fraud Office [2008] EWHC 714, the court considered the decision by the Director of the Serious Fraud Office to halt investigation into bribery allegations regarding arms contracts with the government of Saudi Arabia, following an explicit threat made by Saudi representatives to the Prime Minister's Chief of Staff. The Divisional Court concluded that the decision to halt the investigation represented a surrender to an external threat and ran directly contrary to the constitutional principle of the rule of law. It therefore quashed the Director's decision. The law lords (see [2008] UKHL 60) subsequently reversed this judgment, however, concluding that the Director had been entitled to conclude that the public interest in pursuing an important investigation into alleged bribery was outweighed by the wider public interest in protecting national security. Lord Bingham, in his book The Rule of Law (Allen Lane 2010), attempted to define the concept: '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 made, taking effect (generally) in the future and publically administered in the courts.' He acknowledged that his formulation owed much to Dicey (see section 5.1) but that it also captured the fundamental truth propounded by the philosopher John Locke in Two Treatises of Government (1690, Book 2, Ch XVIII) that: 'Wherever law ends, tyranny begins.' Bingham's definition, although generally welcomed, has not been universally acknowledged, and there is still considerable judicial and academic debate about what is meant by the rule of law.
John Adams, Constitution of the Commonwealth of Massachusetts (1780)
'... a government of laws not of men. '
Justice Blackburn (later first Lord of Appeal in Ordinary) 1866
'It is contrary to the general rule of law, not only in this country, but in every other, to make a person judge in his own case ...'
Control over Discretionary Power
Dicey warned strongly against the granting of discretionary power to the executive, as he believed it would lead to an arbitrary form of government. In modern times, however, many statutes do confer wide discretionary power on the central executive and other public bodies. If the rule of law is equated with adherence to the requirements of formal legality, as demonstrated in Entick v Carrington, the existence of a statutory authority will be deemed to be sufficient to justify governmental action. However, there are instances where the exercise of such statutory power has been seen to be incompatible with the rule of law if the nature of the power conferred is insufficiently limited. See, for instance, Lord Denning's approach in the case of Inland Revenue Commissioners (Appellants) v Rossminster Ltd (Respondents) [1980] AC 952. This represents an example of an alternative approach adopted by some judges, namely to use the rule of law as a principle of interpretation. If this approach is followed, the rule of law takes on a more substantive quality. See also R v Somerset County Council, ex parte Fewings. Does the growth of discretionary power held by the modern state render Dicey's conception of the rule of law redundant? You should consider both theoretical and practical arguments. During emergencies, particularly during wartime, the courts have often been more reluctant to interfere with the exercise of discretionary power. This is whether the power arises from statute or is pursuant to the exercise of the royal prerogative (see Chapter 7). In Liversidge v Anderson [1942] AC 206, the Home Secretary was empowered under Reg.18B of the Defence Regulations (issued under the Emergency Powers (Defence) Act 1939) to imprison any person if he had 'reasonable cause to believe' such a person had hostile intentions. Liversidge was detained without trial under this regulation and sued the Home Secretary for false imprisonment, claiming that 'reasonable cause to believe' imputed an objective factual standard. The majority of the House of Lords disagreed, and accepted the Home Secretary's interpretation of the regulation. They held that there was no objective requirement, enabling him to take this action, as long as his belief was an honest one. Thus the courts could not inquire into the grounds for the detention, unless there was evidence to suggest that the Home Secretary had not acted in good faith. In the minority was Lord Atkin. Famously accusing the majority of being 'more executive minded than the executive', he concluded that, had Parliament wished to give the Home Secretary unlimited discretion, it would not have qualified the grant of power with the word 'reasonable'. In his view, the word purported the existence of facts or a state of facts; therefore the Home Secretary needed to show some evidence for his justification. While much criticised at the time, Lord Atkin's approach is much closer to current judicial orthodoxy. Even so, the courts have generally remained more cautious in interfering with the grant of wide discretionary powers in times of war or when national security is in issue. This is often described as an example of 'judicial deference'. Some further examples of judicial deference include the following. R v Secretary of State for Home Affairs, ex parte Hosenball [1977] 3 All ER 452 The Court of Appeal was unwilling to order reasons to be given to justify the deportation of an American journalist by the Home Secretary. Hosenball claimed that the decision to deport him had breached the rules of natural justice because the Home Secretary had not disclosed the grounds on which he considered him to be a security risk. R v Secretary of State for the Home Department, ex parte Cheblak [1991] 2 All ER 319 In 1991, during the Gulf War, the Court of Appeal accepted the Home Secretary's determination that Cheblak's presence in the UK was not 'conducive to the public good', and refused to order Cheblak's release from detention pending his deportation. The Home Secretary was not required to specify the precise nature of the threat allegedly posed by Cheblak. However, more recent cases suggest that the courts, in examining the choices made by the executive and legislature in response to emergency situations, will not necessarily continue to be so deferential. This trend is particularly reflected in the approach taken by the courts in scrutinising the measures taken by governments since 2001 to combat the threat of terrorist activity, including the 'control order' regime introduced after 2005. The courts have played a very significant role in assessing the legality of such administrative controls over individuals' rights to liberty and fair legal process, utilising powers given under the Human Rights Act 1998. At this stage, it is worth looking briefly at some examples of cases decided in relation to the ECHR, arts 5 and 6, which you will find in Chapter 10.4.3. The degree to which judicial culture has moved away from the more deferential past is illustrated by the tension that has arisen between the government and the judiciary (and to some extent within the judiciary) over the courts' scrutiny of issues of a more political and diplomatic nature. A further illuminating example of this can be seen in Rahmatullah v Secretary of State for Foreign and Commonwealth Affairs, [2012] UKSC 48 in which the Supreme Court upheld the issue of a writ of habeas corpus on the UK government, requiring it to seek to procure the release of the claimant who had been held by US forces in the Bagram Airbase since 2004. See too the case of Ahmed v HM Treasury [2010] UKSC 2. Cases such as these and particularly that of Binyam Mohamed (above) have inspired further highly controversial changes in court procedure in the form of the Justice and Security Act 2013. This Act made some very significant changes in civil cases involving sensitive national security issues by extending the use of "Closed Material Procedure" which may allow the government to prevent evidence being relied upon from being disclosed to the opponent party. This arguably has very serious implications for key rule of law principles relating to the control of discretionary power, the importance of equality of arms before the law, and the need for open and transparent justice. In this general context a further highly contentious recent issue has been brought about by the passing of the Legal Aid, Sentencing and Punishment of Offenders ('LASPO') Act 2012. This was partly designed to introduce significant reductions in the scope of civil legal aid, including that for judicial review. It has been described by opponents, including the President of the Supreme Court, Lord Neuberger (in a highly critical televised BBC interview in March 2013), as a means of reducing access to justice and effectively strengthening the power of the state in relation to the individual.
The Sunday Times v UK (1979)
European Court of Human Rights discussed certain qualities that must be fulfilled for law to meet this criteria. In the context of human rights law and the European Convention, this concept is often referred to as being 'prescribed by law'. (See for example article 5(1) of the European Convention on Human Rights, ('ECHR')).
Burmah Oil Co Ltd v Lord Advocate, [1965]
House of Lords upheld a claim for compensation against the Crown in respect of damage done by British forces during wartime. To nullify the effect of this decision, the War Damage Act 1965 was passed, with retrospective effect, to deny entitlement to compensation.
Kelly v Faulkner [1973]
Northern Ireland Court of Appeal refused to accept that British soldiers dealing with the emergency should be exempt from the normal legal requirements for the execution of a valid arrest just because of the difficult security situation.
Legal justification for state action
One of the key aspects of the rule of law is the supremacy of regular law over arbitrary power. This is based on the idea that those exercising power should have some legal justification for their actions and exercise their powers within the terms provided for by Parliament. Entick v Carrington (1765) 19 St Tr 1029 clearly illustrates this point. (This case must be read for the tutorial.) In Kelly v Faulkner [1973] NI 31, the Northern Ireland Court of Appeal refused to accept that British soldiers dealing with the emergency should be exempt from the normal legal requirements for the execution of a valid arrest just because of the difficult security situation. See also Malone v UK (1985) 7 EHRR 14. This is the Strasbourg appeal from the English case of Malone v Metropolitan Police Commissioner, referred to in Chapter 4. When government is answerable under the law, the courts are empowered to make the authoritative determination of what the law is. In M v Home Office [1993] 3 WLR 433, the House of Lords had to determine whether the Crown (in this case the Home Secretary) had to obey a court order. Cases such as these, where the courts have carefully and deliberately examined government action and upheld the rule of law, clearly illustrate its aims and importance.
Professor De Smith 1959
'... powers exercised by politicians must have a legitimate foundation ... based on authority conferred by law.'
Aristotle (translated by Warrington) c. 350BC
'It is better for the law to rule than one of the citizens ... so even the guardians of the laws are obeying the laws.'
The Universal Declaration of Human Rights 1948
'It is essential, if a man is not to be compelled to have recourse, as a last result, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law. '
Lord Bingham, in his book The Rule of Law (Allen Lane 2010), attempted to define the rule of law
'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 made, taking effect (generally) in the future and publically administered in the courts.' He acknowledged that his formulation owed much to Dicey (see section 5.1) but that it also captured the fundamental truth propounded by the philosopher John Locke in Two Treatises of Government (1690, Book 2, Ch XVIII) that: 'Wherever law ends, tyranny begins.' Bingham's definition, although generally welcomed, has not been universally acknowledged, and there is still considerable judicial and academic debate about what is meant by the rule of law.
Is the Constitution the Result of the Ordinary Law of the Land?
As already discussed, the UK has an uncodified constitution. In other words, the rights and duties of citizens are not expressly and formally codified in one document. For Dicey, an essential component of the rule of law, contained in the third limb of his theory, was that the rights and duties of the citizen were primarily to be found in the common law as a result of cases brought before the courts. Dicey exemplified the classical British view of rights. They were defined negatively, as 'residual rights'. That is to say, individuals were free to do anything that was not prohibited. Today fundamental rights and the principle of the rule of law cannot be considered without looking at the effect of the Human Rights Act 1998 (HRA 1998), a point stressed very strongly by Lord Bingham with his far more 'substantive' conception of the rule of law. The HRA 1998 incorporates the ECHR into the domestic law of the United Kingdom, but falls short of the complete protection envisaged by the Convention. The Act does not, for instance, enable a court to enforce an individual's rights by overturning or striking down a statute. As a last resort, the courts can only make a 'declaration of incompatibility', leaving the amendment of the offending law to the relevant minister and Parliament. However, the HRA 1998 does provide a significant restraint on public bodies from using their power to interfere unjustifiably with individual rights, and therefore provides positive, substantive protection for such rights. Significantly in recent years, one of the most notable trends in constitutional law has been a resurgence in interest and emphasis by the higher judiciary on what has come to be called 'common law constitutionalism'. This is the idea the common law is developing as an organic body of law which serves to protect individual rights and uphold key principles, such as fairness, access to justice and accountability of government, effectively in tandem with the more formal rights associated with the European Convention. For further commentary on this, please see the Epilogue to these Study Notes. Key examples of this trend will also be dealt with in greater depth in the judicial review section of the course - see, for instance, the important case of Osborn v The Parole Board [2013] UKSC 61 which deals with a number of key principles relating to the duty of fairness in governmental decision-making.
Entick v Carrington
Clearly illustrates the supremacy of regular law over arbitrary power
The Rule of Law and Parliamentary Sovereignty
Dicey, in An Introduction to the Study of the Constitution, (1885) wrote that the rule of law and the doctrine of parliamentary sovereignty are the two fundamental principles upon which the constitution rests. The rule of law certainly operates as a check on executive power by requiring that the executive acts only on the basis of lawful authority, which is ultimately granted by Parliament. The principle of the rule of law can also be used by the judiciary to justify the implication of restrictions on the scope of legislation, created by Parliament, in the interests of protecting individual liberties. This can be achieved through judicial interpretation of statutory provisions, incorporating common law (and now ECHR) notions of justice and fairness necessary to uphold democratic principles. In R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115, Simms was a convicted murderer who claimed to be innocent. In seeking and receiving help from a journalist, he was interviewed on several occasions. A blanket ban was imposed by the Home Secretary on journalists using information gained during such interviews with prisoners. He claimed authority to do this under the Prison Rules. However, the court found the blanket ban to be unlawful. In discussing the relationship between parliamentary sovereignty and the rule of law, Lord Hoffmann considered the principle of 'legality'. While acknowledging that ultimately the principle of parliamentary sovereignty meant that Parliament could enact legislation contrary to fundamental human rights, he nonetheless noted: 'But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts in the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.' See also the very important case of R (Jackson) v Attorney General [2005] UKHL 56, which will be looked at in greater detail in the next chapter on parliamentary sovereignty. In particular, note some of the broad obiter dicta comments of the law lords concerning the key significance of the concept of the rule of law to the modern judiciary. For instance, at paragraph 107, Lord Hope said: 'The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based.'
Liversidge v Anderson [1942]
Home Secretary was empowered under Reg.18B of the Defence Regulations (issued under the Emergency Powers (Defence) Act 1939) to imprison any person if he had 'reasonable cause to believe' such a person had hostile intentions. Liversidge was detained without trial under this regulation and sued the Home Secretary for false imprisonment, claiming that 'reasonable cause to believe' imputed an objective factual standard. The majority of the House of Lords disagreed, and accepted the Home Secretary's interpretation of the regulation. They held that there was no objective requirement, enabling him to take this action, as long as his belief was an honest one. Thus the courts could not inquire into the grounds for the detention, unless there was evidence to suggest that the Home Secretary had not acted in good faith. In the minority was Lord Atkin. Famously accusing the majority of being 'more executive minded than the executive', he concluded that, had Parliament wished to give the Home Secretary unlimited discretion, it would not have qualified the grant of power with the word 'reasonable'. In his view, the word purported the existence of facts or a state of facts; therefore the Home Secretary needed to show some evidence for his justification. While much criticised at the time, Lord Atkin's approach is much closer to current judicial orthodoxy. Even so, the courts have generally remained more cautious in interfering with the grant of wide discretionary powers in times of war or when national security is in issue. This is often described as an example of 'judicial deference'.
R v Secretary of State for the Home Department, ex parte Cheblak [1991]
In 1991, during the Gulf War, the Court of Appeal accepted the Home Secretary's determination that Cheblak's presence in the UK was not 'conducive to the public good', and refused to order Cheblak's release from detention pending his deportation. The Home Secretary was not required to specify the precise nature of the threat allegedly posed by Cheblak. However, more recent cases suggest that the courts, in examining the choices made by the executive and legislature in response to emergency situations, will not necessarily continue to be so deferential.
International Conceptions of the Rule of Law
In January 1959, the International Commission of Jurists issued the Declaration of Delhi. This declared that the purpose of all law should be respect for the 'supreme value of human personality', and that the observance should entail certain prerequisites such as the existence of a representative government, respect for basic types of human freedoms, and an independent judiciary. Such a robustly substantive view of the rule of law appears to go much further than weaker, procedural conceptions of the rule of law. The Universal Declaration of Human Rights and the European Convention of Human Rights also demonstrate respect for the rule of law. See also Lord Bingham's eighth sub-rule and the lecture on 30 May 2009 given by the President of the Supreme Court, Lord Phillips, to the Qatar Law Forum on 'The Rule of Law in a Global Context'.
Laws Must be Sufficiently Clear
In The Sunday Times v UK (1979) 2 EHRR 245 the European Court of Human Rights discussed certain qualities that must be fulfilled for law to meet this criteria. In the context of human rights law and the European Convention, this concept is often referred to as being 'prescribed by law'. (See for example article 5(1) of the European Convention on Human Rights, ('ECHR')). Retrospective laws are also seen as incompatible with the rule of law. In Burmah Oil Co Ltd v Lord Advocate, [1965] AC 75 the House of Lords upheld a claim for compensation against the Crown in respect of damage done by British forces during wartime. To nullify the effect of this decision, the War Damage Act 1965 was passed, with retrospective effect, to deny entitlement to compensation. Another example of retrospective law-making came in the form of the War Crimes Act 1991, which empowered the UK courts to punish war crimes committed by persons who were not subject to British jurisdiction at the time when the crimes were committed. Note, however, that while retrospective criminal legislation is prohibited by the ECHR, art 7, there is an exception: 'the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations'. The War Crimes Act 1991 comes within the scope of this exception. More recently, the Jobseekers (Back to Work Schemes) Act 2013 has also overridden the effect of the Court of Appeal's decision in R (Reilly) v Secretary of State for Work and Pensions [2013] EWCA Civ 66. This had required the Department of Work and Pensions to pay a rebate to claimants whose Jobseekers' Allowance had been withdrawn when they refused to take part in an unpaid back-to-work 'training scheme'. Looked at from a different perspective, it could be said that legal clarity is sometimes compromised through the occasionally unexpected operation of common law development. See the case of Shaw v DPP [1962] AC 220 for instance (see Chapter 4).
(Evans) v Attorney General [2015]
In a very clear defence of the courts' role in upholding the rule of law and in maintaining the judiciary's position in the separation of powers balance, Lord Neuberger stated: 'When one considers the implications of section 53(2) in the context of a situation where a court, or indeed any judicial tribunal, has determined that information should be released, it is at once apparent that this argument has considerable force. A statutory provision which entitles a member of the executive (whether a Government Minister or the Attorney General) to overrule a decision of the judiciary merely because he does not agree with it would not merely be unique in the laws of the United Kingdom. It would cut across two constitutional principles which are also fundamental components of the rule of law. First, subject to being overruled by a higher court or (given Parliamentary supremacy) a statute, it is a basic principle that a decision of a court is binding as between the parties, and cannot be ignored or set aside by anyone, including (indeed it may fairly be said, least of all) the executive. Secondly, it is also fundamental to the rule of law that decisions and actions of the executive are, subject to necessary well established exceptions (such as declarations of war), and jealously scrutinised statutory exceptions, reviewable by the court at the suit of an interested citizen.'
Rule of Law Theories
In an Introduction to the Study of the Law of the Constitution (1885), Dicey stated that the rule of law has three meanings. The supremacy of regular law over arbitrary power. 'We mean in the first place, that no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established before the ordinary courts of the land ... It means ... the absolute supremacy or predominance of regular law as opposed to the influence or arbitrary power, and excludes the existence or arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government. Englishmen are ruled by the law, and by the law alone; a man may with us be punished for a breach of the law, but he can be punished for nothing else.' Equality before the law. 'We mean ... when we speak of the "rule of law" as a characteristic of our country, not only that with us no man is above the law, but (what is a different thing) that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.' No higher law other than the rights of individuals as determined through the courts. '... the general principles of the constitution (as for example the right to personal liberty, or the right of public meeting) are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the courts; whereas under many foreign constitutions the security (such as it is) given to the rights of individuals results, or appears to result, from the general principles of the constitution.' Examination of Dicey's theory remains a good starting point, but, when evaluating the rule of law in the constitution, other writers and concepts should be taken into account. As mentioned above, one of the most influential modern thinkers and writers on this subject is Lord Bingham, the former senior law lord, who gave a key lecture on the subject in the Sir David Williams Lecture at Cambridge in 2005 (available on the VLE). The themes from this are expanded upon in his more recent work, The Rule of Law. Lord Bingham ascribes to a number of the points made by Dicey over a century earlier, but develops the theory in a more modern and substantive direction. He describes eight sub-rules within his conception of the rule of law. The law should be accessible, clear and predictable. Legal issues should ordinarily be resolved through legal processes and not through exercise of (administrative) discretion. The law should apply equally to all. The law should afford adequate protection for human rights. There should be access to justice in the courts without inordinate delay or expense. Public officials, including ministers, should exercise the powers they have been granted in good faith and within the limits of those powers. Legal and adjudicative processes should be fair. The state should comply with its obligations under international law. This latter point was the subject of some controversy when the Government re-drafted the Ministerial Code in late 2015 and excluded the previous reference in paragraph 1.2 to 'the overarching duty on Ministers to comply with the law including international law and treaty obligations.'
M v Home Office [1993]
Lord Templeman stated: '... Parliament makes the law, the executive carry the law into effect and the judiciary enforce the law.'
R v Secretary of State for the Home Department, ex parte Simms [2000]
Simms was a convicted murderer who claimed to be innocent. In seeking and receiving help from a journalist, he was interviewed on several occasions. A blanket ban was imposed by the Home Secretary on journalists using information gained during such interviews with prisoners. He claimed authority to do this under the Prison Rules. However, the court found the blanket ban to be unlawful. In discussing the relationship between parliamentary sovereignty and the rule of law, Lord Hoffmann considered the principle of 'legality'. While acknowledging that ultimately the principle of parliamentary sovereignty meant that Parliament could enact legislation contrary to fundamental human rights, he nonetheless noted: 'But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts in the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.'
Rahmatullah v Secretary of State for Foreign and Commonwealth Affairs, [2012]
Supreme Court upheld the issue of a writ of habeas corpus on the UK government, requiring it to seek to procure the release of the claimant who had been held by US forces in the Bagram Airbase since 2004.
R v Secretary of State for Home Affairs, ex parte Hosenball [1977]
The Court of Appeal was unwilling to order reasons to be given to justify the deportation of an American journalist by the Home Secretary. Hosenball claimed that the decision to deport him had breached the rules of natural justice because the Home Secretary had not disclosed the grounds on which he considered him to be a security risk.
The Rule of Law and the Separation of Powers
The doctrine of the separation of powers identifies three main organs of government - the legislature, executive and judiciary - and suggests that, by each performing separately the function assigned to it, individuals are protected from arbitrary governmental actions and abuse of power. In M v Home Office [1993] 3 WLR 433, Lord Templeman stated: '... Parliament makes the law, the executive carry the law into effect and the judiciary enforce the law.' The doctrine of the separation of powers is closely connected with the rule of law: the judiciary, by performing its constitutional function of 'enforcing' the law in the cases that come before it, keeps the executive within the bounds of its lawful authority and so upholds the law as made and sanctioned by Parliament. One of the key ways in which the judiciary performs this rule of law/separation of powers function is through the process of judicial review, which we will look at in detail in the final part of the course. Lastly, it is worth referring back in this context to the highly significant recent case of R (Evans) v Attorney General [2015] UKSC 21. In a very clear defence of the courts' role in upholding the rule of law and in maintaining the judiciary's position in the separation of powers balance, Lord Neuberger stated: 'When one considers the implications of section 53(2) in the context of a situation where a court, or indeed any judicial tribunal, has determined that information should be released, it is at once apparent that this argument has considerable force. A statutory provision which entitles a member of the executive (whether a Government Minister or the Attorney General) to overrule a decision of the judiciary merely because he does not agree with it would not merely be unique in the laws of the United Kingdom. It would cut across two constitutional principles which are also fundamental components of the rule of law. First, subject to being overruled by a higher court or (given Parliamentary supremacy) a statute, it is a basic principle that a decision of a court is binding as between the parties, and cannot be ignored or set aside by anyone, including (indeed it may fairly be said, least of all) the executive. Secondly, it is also fundamental to the rule of law that decisions and actions of the executive are, subject to necessary well established exceptions (such as declarations of war), and jealously scrutinised statutory exceptions, reviewable by the court at the suit of an interested citizen.'
The Rule of Law in the UK Constitution
The practical application of the rule of law largely takes place through judicial review of administrative action (discussed more fully in the third part of the course, in Chapter 13 onwards). The discussion below illustrates some application of the key principles; other cases discussed later in the course are also highly relevant to this topic: legal justification for state action, law must be sufficiently clear, control over discretionary power, equality before the law.
Formal and Substantive
There are two broad schools of thought among writers on the rule of law. The formal view of the rule of law is that, for there to be government under the law, laws must adhere to certain procedural requirements. This view says nothing about the morality of the law, merely that it must be capable of guiding the behaviour of its subjects so that an individual can be certain of their actions and position within society in any given circumstances. This extends to an expectation of how the citizen will be treated by the state and other private citizens. In order to achieve this quality of certainty, law must be prospective and clear, and it should be adjudicated upon by an independent judiciary, with access to the courts made available to all citizens. Joseph Raz is a key advocate of the formalist conception of the rule of law. The substantive view of the rule of law differs from that of Raz in emphasising the need for law to have certain qualitative elements in addition to procedural protections. Probably the best known proponents of this school of thought are the American legal philosopher, Ronald Dworkin, and the British judge, Lord Bingham, both of whom maintained that a rule of law society must accommodate respect for fundamental human rights and freedoms.
Equality before the Law
This idea can be split into two aspects: that everyone is subject to the same law, and that everyone is subject to the ordinary courts of the land. There are several specific and long-standing examples of inequality under law in the UK. These include: (a) the powers of the monarch; (b) certain officials (for example, police and custom officers) have been granted special powers; (c) judges in higher courts are immune from civil litigation for acts done within their official jurisdiction; (d) parliamentary privilege - see Stourton v Stourton [1963] 1 All ER 606; (e) diplomatic immunity. How justified these exceptions may be can be debated. However, there is no doubt that the general idea that 'there should be one law for all, governed and government alike', as Fenwick and Phillipson put it, remains an essential element of the rule of law.
R (on the application of Corner House Research) v Director of the Serious Fraud Office [2008]
court considered the decision by the Director of the Serious Fraud Office to halt investigation into bribery allegations regarding arms contracts with the government of Saudi Arabia, following an explicit threat made by Saudi representatives to the Prime Minister's Chief of Staff. The Divisional Court concluded that the decision to halt the investigation represented a surrender to an external threat and ran directly contrary to the constitutional principle of the rule of law. It therefore quashed the Director's decision. The law lords (see [2008] UKHL 60) subsequently reversed this judgment, however, concluding that the Director had been entitled to conclude that the public interest in pursuing an important investigation into alleged bribery was outweighed by the wider public interest in protecting national security.
obseekers (Back to Work Schemes) Act 2013
overridden the effect of the Court of Appeal's decision in R (Reilly) v Secretary of State for Work and Pensions [2013] EWCA Civ 66. This had required the Department of Work and Pensions to pay a rebate to claimants whose Jobseekers' Allowance had been withdrawn when they refused to take part in an unpaid back-to-work 'training scheme'.
