Rule of Law

‘in the mouth of a British constitutional lawyer, the term “rule of law” seems to mean primarily a corpus of basic principles and values, which together lend some stability and coherence to the legal order. While in the mouth of the politician, the rule of law becomes a stick with which to beat other regimes.’

As for Professor Joseph Raz, he commented on the tendency to use the rule of law as a shorthand description of the positive aspects of any given political system.

Is the Rule of Law Valid Today? 

However valid the Rule of Law may have been in Dicey’s lifetime, where some critics deny its truth even for that period, the doctrine has been subject to criticism in the light of modern developments, particularly in the last few decades.

First, we analyse Dicey’s postulates with regards to the absence of arbitrary power. Today, Ministers and other executive bodies are sometime given wide discretionary powers by statute. Thus, a Minister may be empowered by law ‘to act as he thinks fit’ or ‘if he is satisfied’. Such words as ‘if necessary’, ‘requisite’, or ‘expedient’ abound in statutes implementing new services. There is, therefore, discretionary power bestowed by Parliament which is openly and widely used even under the ‘regular law’. Such discretionary power has the tendency to be abused, and it is immaterial whether the power is derived from the ‘regular law’ or not.

At times of emergencies such as war, much wider powers are given by law to the Executive. For example, the Home Secretary was empowered under Regulations 18 B of the Defence(General) Regulations 1939, to imprison any person, ‘if he had reasonable cause to believe such person to be of hostile origins or associations’. In the case of Liversidge v Anderson, Liversidge was detained without trial under Regulation 18B and sued the Home Secretary for false imprisonment. The House of Lords then held that the court could not inquire into the grounds for the detention, as it was the matter for the Executive discretion of the Home Secretary in the circumstances of war. Accordingly, the imprisonment was lawful. Thus, the rise of IRA terrorism has given rise to similar powers.

Difficulty arises as to the meaning of ‘regular law’. It is understood that Dicey meant the common law and the statute law, as it then existed. Today, however, much of the legislation is delegated legislation, which is to say; rules, orders, or statutory instruments made by Ministers and other bodies and not directly by Parliament. Although such legislation is made under powers conferred by statutes, Parliament has little control over the making of such legislation. Many citizens frequently find themselves subject to rules not made by Parliament but by the Executive. The rules hardly existed is Dicey’s time.

Certain chambers of society are subject to special rules in their professions. Thus, solicitors, barristers, doctors, nurses, members of the armed forces, and the police are all subject to special rules, breach of which renders a member of any of the professions named liable to special punishment, such as fines, deprivation of livelihood, or expulsion. Such rules apply to particular classes’ people in the community who are treated differently from ordinary citizens. In any case, the special rule cannot be treated as part of the ‘regular law’.

Second, we look into the equality before the law. However attractive this idea may be, there are obvious exceptions to it. The Queen cannot be sued personally in her own courts, where ‘the Queen can do no wrong’. The Crowns Proceedings Act 1947 has not affected the personal immunity of the Sovereign.

Certain members of society are obviously exempt from the general law. A child in arms is inevitably treated differently from adult members of society. Children less than 10 years cannot in this country be convicted of any crime, and those between 10 and 14 only in special circumstances.

More important is the number of officials who have greater legal powers than those possessed by the ordinary citizens. The police, public health inspectors, factory inspectors, custom officers, and so on, all possess special powers. Some may forcibly enter private premises to inspect or take possession of property, some may be empowered to arrest, and some may prosecute for certain special offences. Although these rights are conferred by law they do, in fact, place the officials mentioned in a special position. Thus, to that extent there is no ‘equality before the law’

Foreign sovereigns, ambassadors, High Commissioners, and diplomats enjoy a special immunity from civil and criminal law of the country to which they are officially posted. These constitute a further exception to the principle of ‘equality before the law’.

Judges of the High Court enjoy immunity from liability for done within their official jurisdiction. This judicial freedom and independence is essential for the proper administration of justice. Nevertheless, judges and magistrates provide a further exception to that rule.

In the case of M v Home Office, where the recent example of Dicey’s second postulates can be found. The facts were that M was a citizen of Zaire who arrived in the UK to seek political asylum. After being interviewed, he was informed that his claim had been rejected by the Home Secretary where the latter was personally been in contempt of court. It was held, that the ratio was to ensure that ‘the orders of the court are obeyed’. According to Lord Woolf, the decision was not to punish an individual as to vindicate the rule of law by a finding a contempt. The significance of this case was that, it is the first case whereby a government minister was found guilty of contempt of court. Thus, the House of Lords emphasized that no one is above the law, not even the members of Executive.

Third, in light of the constitution as the result of the ordinary law of the land, it is known that many countries had a written constitution which provides clauses defining the rights and duties of citizens. When, therefore, any person unlawfully invades the rights of person or property of a citizen he may consult the constitutional provisions, decide that the invasion is unlawful and sue the offender before the law courts.

Dicey states that ‘with us the constitution is the consequence of the rights of the individual as defined in the Courts of Law’. The British constitution is unwritten, that it is the product of the operation of the ordinary law of the land. The legal rights and duties of a British subject are generally found in the common law. Whereby, there are certain rules contained in particular statutes. The broad rule of the common law is that no one may interfere with or invade a person or property unless he has lawful power so to do. Otherwise he commits a wrong, which contrary to the common law, for which I may sue. However, there is no guaranteed constitutional rule in writing to this effect for it is merely the rule of the common law which has been hammered out over the centuries by judges. Any citizen may, therefore, ascertain his rights from the legal cases decided in the past and from statutes.

Entick v Carrington

Many cases had been heard by the courts. However, this case was known as the central case in English constitutional law where the court’s continuing allegiance to the rule of law is embodied. In this case, Entick brought an action for trespasses after his house had been broken into by King’s Messengers and certain papers had been seized as evidence of seditious writings.

The defendants argued that their actions were justified by a warrant issued by the Secretary of State. The case therefore turned on the legality of the warrant. It was held, that the power claimed by the Secretary of State to issue the warrant was not supported by any of the extant law books. Lord Camden CJ said that ‘if it is law, it will be found in our books. If it is not there, then it is not law.’ Therefore, the warrant was illegal and void.

The rationale in this case is that the Executive is bound by subject to the laws of the land. Thus, it can be said that the rule of law precludes arbitrary action on the part of the Crown or members of the Government. Recently, the Human Rights Act 1998 provides the remedy for unlawful actions of police interference, where entry has to be satisfied that there is a legal power to do so. Whereby, before police can justify after the entry. A recent case prior to this was the case of R v Khan, where the House of Lords accepted that police had trespassed to enable them to install a listening device to record a conversation between the defendant and another person. In installing the device, the police had complied with a non-statutory Home Office guideline, and the House of Lords accepted that the trial judge had been right to exclude the evidence as the conduct of police has breached Article 8 of the European Convention of Human Rights on the point that it is lack of a statutory scheme.

However, the recent issue was whether the rationale in the above orthodox case still a good law in regarding present terrorist threat? With the limitation and boundaries set in this case, can the authority deal with terrorist?  In the recent case of A v Secretary of State for the Home Department , where A and the other appellants were non-UK nationals who were resident in the UK and who were considered to pose a threat to the safety of the nation. They could not be deported to their countries of origin because they faced the prospect of being tortured or treated inhumanely. Subsequently, the Anti-terrorism, Crime and Security Act 2001 was passed where Section 23 provided for the detention without trial of individuals such as the appellants. However, this contradicts the Article 5 in the European Convention of Human Rights. The decision in this case signifies a development in the relationship between the courts and the executive.

In the case of R v F , the appellant, having fled his native Libya for fear of prosecution following the murder of a number of his friends and family, was granted asylum in the UK in 2003. In 2006, he was convicted on two counts under Section 58 of the Terrorism Act 2000 of possessing a document or record containing information likely to be useful to a person committing or preparing an act of terrorism. Here the judge states that, the legislation does not exempt, nor make an exception, nor create a defence for, nor exculpate what some would describe as terrorism in a just cause. Such concept is foreign to the Act. Terrorism is terrorism, whatever the motives of the perpetrators.

If more were needed to demonstrate that sudden and disorganized supplanting of oppressive governments, rather than democratic reform, were an inappropriate course for liberating the citizens under it, one only needs to look at Iraq. Tyrannical as Saddam Hussein was, there was not the lawlessness subjugating the people of Iraq on a daily basis that there has been since he was deposed. Bringing to mind the significance of the rule of law, in the trial of the defendant in the present case, the judge had made much of Lord Hoffmann’s words in R v Jones that the defendant could not act ‘as if he were a sheriff in a western, the only lawman in town.’

Reforms

Legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion. Most modern commentators would not share to the full Dicey's hostility to the exercise of official discretions. In the immigration field, for example, judges have routinely and gratefully invited the Secretary of State to exercise his discretion to grant leave to enter or remain to applicants who do not meet the tests for entry laid down in the immigration rules but whose personal history or circumstances demand sympathetic consideration. But the essential truth of Dicey's insight stands. The broader and more loosely-textured a discretion is, whether conferred on an official or a judge, the greater the scope for subjectivity and hence for arbitrariness, which is the antithesis of the rule of law. This sub-rule requires that a discretion should ordinarily be narrowly defined and its exercise capable of reasoned justification. These are requirements which our law, in my opinion, almost always satisfies, because discretion imports a choice between two possible decisions and orders, and usually the scope for choice is very restricted.

The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation. While some special legislative provision can properly be made for some categories of people such as children, prisoners and the mentally ill, based on the peculiar characteristics of such categories, we would regard legislation directed to those with red hair as incompatible with the rule of law. It would be comforting to treat this rule as of antiquarian interest only. But it would be unrealistic, as the treatment of non-nationals here and elsewhere reveals. The position of a non-national with no right of abode in this country differs from that of a national with a right of abode in the obvious and important respect that the one is subject to removal and the other is not. That is the crucial distinction, and differentiation relevant to it is unobjectionable and indeed inevitable. This message seems clear enough. But it did not deter Parliament from providing, in Part 4 of the Anti-terrorism, Crime and Security Act 2001, for the indefinite detention without charge or trial of non-nationals suspected of international terrorism while exempting from that liability nationals who were judged qualitatively to present the same threat. The record of the United States in this respect is not better than our own, and arguably worse.

The law must afford adequate protection of fundamental human rights. This would not be universally accepted as embraced within the rule of law. Dicey, it has been argued, gave no such substantive content to his rule of law concept. The European Court of Human Rights has referred to "the notion of the rule of law from which the whole Convention draws its inspiration." The European Commission has consistently treated democratisation, the rule of law, respect for human rights and good governance as inseparably interlinked.

There has been much debate whether the rule of law can exist without democracy. Some have argued that it can. But it seems to me that the rule of law does depend on an unspoken but fundamental bargain between the individual and the state, the governed and the governor, by which both sacrifice a measure of the freedom and power which they would otherwise enjoy. The individual living in society implicitly accepts that he or she cannot exercise the unbridled freedom enjoyed by Adam in the Garden of Eden, before the creation of Eve, and accepts the constraints imposed by laws properly made because of the benefits which, on balance, they confer. The state for its part accepts that it may not do, at home or abroad, all that it has the power to do but only that which laws binding upon it authorise it to do. If correct, this conclusion is reassuring to all of us who, in any capacity, devote our professional lives to the service of the law. For it means that we are not, as we are sometimes seen, mere custodians of a body of arid prescriptive rules but are, with others, the guardians of an all but sacred flame which animates and enlightens the society in which we live.

Bibliography

Books:

Barnett, H ‘constitutional & administrative law’, 6th edt, Cavendish Publication, 2006

Jackson, P & Leopold, P ‘O.Hood Phillips and Jackson: Constitutional & Administrative Law’,8th edt, Sweet & Maxwell, 2001

Parpworth, N. ‘Constitutional & Administrative Law’, 4th edt, Oxford University Press

Articles:

Cohn, M ‘Medieval Chains, Invisible Inks: On Non-Statutory powers of the Executives’(2005), Oxford J.Legal Studies.97

T.R.S. Allan ‘The rule of law as the rule of reason: Consent & Constitutionalism’ (1999) L.Q.R. 115(April) 221

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