(a) What is the Rule of Law and to what extent if at all is the Rule of Law applied in the English and Welsh legal system?
The Rule of Law has no solid explanation as to its existence. It is more an ideal or a symbolic concept that has gathered many interpretations as to the definition. The Rule of Law can be traced back to Aristotle and theories of Natural and Devine Law.
It was AV Dicey in the United Kingdom who built up the Doctrine of the Rule of Law in approximately 1895. Dicey's theory is one of the most famous attempts to define the Rule of Law. According to Dicey, the Rule of Law was one of the key features which distinguished the English constitution from its continental counterparts. He suggested that there were three main elements which together made for the Rule of Law. The first element he proposed was the absence of arbitrary power on part of the State. He said that the State shouldn't intervene and that the way in which it exercises such power is limited and controlled by law. The second element that Dicey suggested was that of equality before the law. He highlighted here that no person is above the law. Thirdly, Dicey proposed the element of supremacy of the ordinary law. He suggested that there is no need for a Bill of Rights in the United Kingdom's constitution, as the principle of judicial decisions determining an individuals rights is supreme as it attends to the rights of the individual, private person.
There are numerous other theories as to the Rule of Law, some agreeing with Dicey and others giving alternative interpretations. FA Von Hayek thought similarly to Dicey, and saw the essential component of the Rule of Law as being the absence of arbitrary power in the hands of the State. Hayek did go further than Dicey, as far as to say that any legal rules are limited. He said that the Rule of Law implies limits on the scope of legislation and it restricts it to the kind of general rules known as formal law and excludes legislation directly aimed at particular people. Hayek here was stating that law should not be particular in content or application, but should be general, applying to all and benefiting none in particular. Hayek was a severe critic of State intervention. His criticism was founded on two bases. One was efficiency, in which Hayek suggests the State cannot fully understand any individuals' situation and should therefore leave it to the individuals to make their own decisions about what they want, or how they choose to achieve what they want, as long as achieved in a legal way. The other was morality and from this perspective, Hayek said that to the extent that the State leaves the individual less room to make individual decision, it reduces their freedom.
Joseph Raz however had other views as to a theory of what the Rule of Law is, and emphasised the importance and the need for State intervention. He suggests that it would be impossible in practical terms for law to consist solely of general rules. Raz claims that the basic requirement is that the law must capable of guiding the individuals' behaviour. His main points in accordance with this basic principle include the need for law to be prospective rather than retrospective. He suggests that laws need to be open and clear to enable people to understand them and guide their actions in line with them. He also proposes that laws should be stable and not changed too frequently as this might lead to confusion as to what was actually covered by the law.
Raz says that there should be clear rules and procedures for making laws, and that the independence of the judiciary should be guaranteed so that they are free to decide a case in line with the law, without any external pressure. Raz emphasises the importance for the principles of natural justice to be observed, also the necessity for the courts to have the power to ensure that other principles as demanded by the Rule of Law are being implemented correctly. Finally, Raz comments on the importance for the courts to be easily accessible as they remain at the ...
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Raz says that there should be clear rules and procedures for making laws, and that the independence of the judiciary should be guaranteed so that they are free to decide a case in line with the law, without any external pressure. Raz emphasises the importance for the principles of natural justice to be observed, also the necessity for the courts to have the power to ensure that other principles as demanded by the Rule of Law are being implemented correctly. Finally, Raz comments on the importance for the courts to be easily accessible as they remain at the heart of the idea of making discretion subject to legal control, and that crime preventing agencies should not be allowed to pervert the law. It is evident that Raz sees the Rule of Law being complied with if the procedural rules of law making are complied with.
Moyra Grant, a female theorist of the Rule of Law in 1994, proposed slightly different view points in comparison to other theorists such as Dicey. Grant's theory includes that all law's should be unambiguous. She focused on the fact that all laws should be just, which ignited some discussion due to the assumption that an 'unjust' law does not exist. She suggested the importance of an independent judiciary and stated that judges should be free from bias and free from political pressure. Grant noted the need for legal equality and that all cases should treated the same with equal access to the law. The assumption 'innocent until proven guilty' was also an element in Grant's theory of the Rule of Law.
Although there are many interpretations as to what exactly the Rule of Law is, they still remain unfounded as a solid definition; instead it appears to be an underlying, ideal concept that is symbolic, as to the make-up of the United Kingdom constitution and its processes.
When considering the different theories of the Rule of Law, Dicey and Hayek's interpretations as to the Rule of Law beg for questioning as to whether these principles apply in the English and Welsh legal system today. Analysing the concept of the absence of arbitrary power, it is evident that this is not necessarily the case in today's legal system. When looking at terrorist laws in particular, the State has exercised its power to apply different laws to suspected terrorists than to other suspected criminals. This use of arbitrary power is controversial due to it's isolation of suspected terrorists and its use of random power to ensure that different rules apply to these people. Another concept that no person is above the law is also a debatable subject. The main and most obvious contradiction to this 'law' is the Queen's immunity to all laws and the immunity of the Judiciary to some laws. Also, some politicians can't get sued for slander in parliament, indicating that they are also above the law. More low key, is the observation of the different treatment some celebrities may receive above other civilians. It has been evident in past situations that some may have escaped the clasps of the law in circumstances where other non-celebrities would not have. The supremacy of the ordinary law has also come under fire as to whether this concept exists today in our legal system. The relationship between the courts and government, and the conflict that exists between the two, has lead to some discussion as to whether the ordinary law and judicial decisions are supreme. Also, the relationship between the United Kingdom and Europe has lead to observation of the supreme power the EU now has over our government. A major component of this influence is the Human Rights Act 1998. The influence of Europe has limited the country's parliamentary sovereignty and this in itself questions how supreme ordinary law now is.
When looking at the theory of Joseph Raz, it is clear that some of his presumptions as to the Rule of Law do not apply to the English and Welsh legal system today. When considering his theory that law should be prospective as oppose to retrospective, it is clear that is not always so. This is mostly evident when observing the use of judicial precedent. It can be argued that this system means that essentially, law follows the crime. Where a case comes before a judge where there is no case law, original precedent can only be established after the judge has seen the facts of a case and then applied the law. Therefore precedent and essentially law is only laid down after a crime has been committed. This therefore indicates that there has been no law for a person to follow and therefore no guidelines.
Joseph Raz also proposes the issue of an independent judiciary. However, the English and Welsh legal system witnesses many overlaps between the judiciary, executive and legislature, in particular within the role of the Lord Chancellor, essentially questioning the underlying concept that is the separation of powers and therefore the independence of the Judiciary. Raz also calls for the need for courts to be easily accessible, however this is not essentially true. Some people may be more financially able to access the court system. Even when legal aid is offered to those who cannot independently support themselves, this is also means tested and therefore there are limits as to who is liable for such support.
Moyra Grant's theory also calls for debate. Similarly, she also highlights the need for an independent Judiciary. However, as discussed in relation to Raz's theory, the role of the Lord Chancellor in particular has undermined the assumption of the separation of powers. However, the recent piece of legislation, Constitutional Reform Act 2005 has removed the role of the Lord Chancellor as Speaker in the House of Lords and the head of the Judiciary of England and Wales. This therefore does indicate the move towards ensuring the separation of powers exists and therefore, more independence of the Judiciary. When studying Moyra Grant's proposal that all law should be just, it questions the assumption that there is no such thing as 'unjust' law. However, when considering the laws surrounding poll tax, the English and Welsh legal system has previously issued inconsistent sentencing in cases with exactly the same facts, suggesting that actually, some laws are in fact unjust. Moyra Grants theory of legal equality is contradicting with today's society as it is clear that not everyone has equal access to the law due to different financial circumstances. It is also arguable that legal equality does not exist due the immunity of the Queen to all law's, the immunity of the Judiciary to some laws and the immunity of some politicians to becoming sued for slander in parliament. Her assumption of innocent until proven guilty also raises questions. There is much prejudice involved within this concept, from which the assumption is often made as to 'guilty until proven innocent'. For example, the right to remain silent may be interpreted by many as an attempt to hide the truth or important facts, leading to the assumption that the person is guilty until proven otherwise.
It is hugely questionable as to whether due process actually applies in our legal system. Due process is the course of action the State legitimately has at its disposal to prosecute that individual. The process involves the police, CPS, Magistrates Courts, the Crown Court, the Court of Appeal and even possibly the House of Lords and the Criminal Cases Review Committee. The main reason for due process is the upholding of law and order, upholding the moral position of society and the ideal of justice. The components of due process in criminal courts are; detention must be lawful, presumption of innocence, bail, right to a fair trial, notification of charge, trial within a reasonable time, impartiality, right to silence, legal representation, right to question witnesses, evidence must be obtained fairly, no entrapment, disclosure of evidence and no punishment without the application of law. Those who may enjoy due process are terrorists. Their entitlement to due process ensures that are isolated and tried by a sophisticated and thorough criminal justice system. The rich and powerful may also enjoy due process, as they can sometimes exploit it. They have the resources to explore areas ordinary citizens have no connection to. However, those who may not enjoy due process are suspected terrorists. They are often presumed guilty until proven innocent and may experience a lot of prejudice. Also, the new laws under which the State now has the power to detain suspected terrorists longer than other suspected criminals reinforces the presumption of guilty until proven innocent. Low socio-economic groups may find the legal system too expensive and may not have equal access to the law. These groups therefore do not enjoy due process. Ethnic minority groups, the elderly and the unemployed often fall into this category also, and face exploitation by the more powerful. Immigrants and refugees may suffer also, as the United Kingdom is becoming extensively keen to not appear as a 'soft option' and an attractive proposition for those fleeing prosecution.
The mentally ill do have allocated representatives to look after their interests, but the huge scale of mental illness in the United Kingdom often means that the rights of the mentally ill are overlooked. This therefore means that they do not enjoy due process. Although the Human Rights if the young have been improved by the introduction of the Children Act 1989 a, the signing of the UN convention on the Rights of a Child and the Human Rights Act 1998, those in position of authority have immense power over them economically and emotionally . They are able if they choose to virtually strip them of their rights. This therefore concludes that children do not always enjoy due process.
Although it is held by most that the United Kingdom is still governed under the Rule of Law, and it is believed by many to be the foundations of our legal system, it is clear that today, the Rule of Law remains an ideal and has no solid definition on which to base it. With numerous interpretations of what it really is, and the ways in which our legal system does not always abide by the main principles of the Rule of Law such as 'no-one is above the law', it is reasonable to question whether the Rule of Law does actually exist in the English and Welsh legal system. The way in which due process, which is supposed to uphold law and order and uphold the position of society and the ideal of justice, does not allow all people to enjoy it and many may be deprived in this area, is an addition to the argument that the Rule of Law does not exist and that the idea and numerous interpretations of it are merely symbolic.
