RULE OF LAW AND HUMAN RIGHTS

This chapter considers two concepts that are not always, or indeed usually, dealt with in English Legal System textbooks: the two interrelated concepts are ‘the rule of law’ and ‘human rights’. However, it is the contention of the authors that ideas about the rule of law and human rights are, and always should have been, at the core of our understanding and assessment of any, and certainly our own, legal system, and further that they are assuming a more apparent and increased centrality and importance in relation to its operation and justification. However, it has to be recognised from the outset that any consideration of the specific ideas inherent in these general concepts cannot be approached satisfactorily from the purely ‘black letter’ legal perspective, but must engage the student in a related consideration of the socio-political context from which they derive and to which they relate and on which they operate. Further, the concepts themselves are fluid and as will be seen, different commentators have adopted widely varying approaches to them.

Equality before the law : the fact that no person is above the law, irrespective of rank or class. This was linked with the fact that functionaries of the State are subject to the same law and legal procedures as private citizens.

Supremacy of ordinary law : the fact that the English constitution was the outcome of the ordinary law of the land and was based on the provision of remedies by the courts rather than on the declaration of rights in the form of a written constitution.

It is essential to recognise that Dicey was writing at a particular historical period but, perhaps more importantly, he was writing from a particular political perspective that saw the maintenance of individual property and individual freedom to use that property as one chose as paramount. He was opposed to any increase in State activity in the pursuit of collective interests. In analysing Dicey’s version of the rule of law, it can be seen that it venerated formal equality at the expense of substantive equality. In other words, he thought that the law and the State should be blind to the real concrete differences that exist between people, in terms of wealth or power or connection, and should treat them all the same, as possessors of abstract rights and duties.

There is an unaddressed, and certainly unresolved, tension in Dicey’s work. The rule of law was only one of two fundamental elements of the English polity; the other was parliamentary sovereignty. Where, however, the government controls the legislative process, the sovereignty of parliament is reduced to the undisputed supremacy of central government. The tension arises from the fact that, whereas the rule of law was aimed at controlling arbitrary power, parliament could, within this constitutional structure, make provision for the granting of such arbitrary power by passing appropriate legislation.

This tension between the rule of law and parliamentary sovereignty is peculiar to the British version of liberal government. Where similar versions of government emerged on the Continent, and particularly in Germany, the power of the legislature was itself subject to the rule of law. This subordinate relationship of State to law is encapsulated in the concept of the Rechtsstaat.

This idea of the Rechtsstaat meant that the State itself was controlled by notions of law, which limited its sphere of legitimate activity. Broadly speaking, the State was required to institute general law and could not make laws aimed at particular people.

2.2.2 FA von HAYEK

FA von Hayek followed Dicey in seeing the essential component of the rule of law as being the absence of arbitrary power in the hands of the State. As Hayek expressed it in his book The Road to Serfdom (1971):

Hayek, however, went further than Dicey in setting out the form and, at least in a negative way, the content that legal rules had to comply with in order for them to be considered as compatible with the rule of law. As Hayek expressed it:

This means that law should not be particular in content or application, but should be general in nature, applying to all and benefiting none in particular. Nor should law be aimed at achieving particular goals: its function is to set the boundaries of personal action, not to dictate the course of such action.

Hayek was a severe critic of the interventionist State in all its guises, from the fascist right wing to the authoritarian left wing and encompassing the contemporary welfare State in the middle. His criticism was founded on two bases:

Efficiency : from the microeconomic perspective – and Hayek was an economist – only the person concerned can fully know all the circumstances of their situation. The State cannot wholly understand any individual’s situation and should, therefore, as a matter of efficiency leave it to the individuals concerned to make their own decisions about what they want or how they choose to achieve what they want, so long as it is achieved in a legal way.

Morality : from this perspective, to the extent that the State leaves the individual less room to make individual decisions, it reduces their freedom.

It is apparent, and not surprising considering his Austrian background, that Hayek adopted a Rechtsstaat view of the rule of law. He believed that the meaning of the rule of law, as it was currently understood in contemporary English jurisprudence, represented a narrowing from its original meaning, which he believed had more in common with Rechtsstaat than it presently did. As he pointed out, the ultimate conclusion of the current weaker version of the rule of law was that, so long as the actions of the State were duly authorised by legislation, any such act was lawful, and thus a claim to the preservation of the rule of law could be maintained. It should be noted that Hayek did not suggest at any time that rules enacted in other than a general form are not laws; they are legal, as long as they are enacted through the appropriate and proper mechanisms; they simply are not in accordance with the rule of law as he understood that principle.

Hayek disapproved of the change he claimed to have seen in the meaning of the rule of law. It is clear, however, that, as with Dicey, his views on law and the meaning of the rule of law were informed by a particular political perspective. It is equally clear that what he regretted most was the replacement of a free market economy by a planned economy, regulated by an interventionist State. The contemporary State no longer simply provided a legal framework for the conduct of economic activity, but was actively involved in the direct coordination and regulation of economic activity in the pursuit of the goals that it set. This had a profound effect on the form of law. Clearly stated and fixed general laws were replaced by open-textured discretionary legislation. Also, whereas the Diceyan version of the rule of law had operated in terms of abstract rights and duties, formal equality and formal justice, the new version addressed concrete issues and addressed questions of substantive equality and justice.

Hayek’s views in relation to law and economics were extremely influential on conservative political thinking in the last quarter of the twentieth century and, in particular, on the Conservative government of Margaret Thatcher, which was elected in 1979 with the overt policy of reducing the impact and influence of the central state on economic activity and individuals. Thatcher was famous/infamous for, amongst other things, her declaration that there was no such thing as society, ‘only individuals and families’.

2.2.3 EP THOMPSON

The rule of law is a mixture of implied promise and convenient vagueness. It is vagueness at the core of the concept that permits the general idea of the rule of law to be appropriated by people with apparently irreconcilable political agendas in support of their particular political positions. So far, consideration has been given to Dicey and Hayek, two theorists on the right of the political spectrum who saw themselves as proponents and defenders of the rule of law; however, a similar claim can be made from the left. The case in point is EP Thompson, a Marxist historian, who also saw the rule of law as a protection against, and under attack from, the encroaching power of the modern State.

In Whigs and Hunters (1975), a study of the manipulation of law by the landed classes in the eighteenth century, Thompson concluded that the rule of law is not just a necessary means of limiting the potential abuse of power, but that:

In reaching such a conclusion, Thompson clearly concurs with Hayek’s view that there is more to the rule of law than the requirement that law be processed through the appropriate legal institutions. He too argued that the core meaning of the rule of law involved more than mere procedural propriety and suggested that the other essential element is the way, and the extent to which, it places limits on the exercise of State power.

2.2.4 JOSEPH RAZ

Some legal philosophers have recognised the need for State intervention in contemporary society and have provided ways of understanding the rule of law as a means of controlling discretion without attempting to eradicate it completely. Joseph Raz (‘The Rule of Law and its virtue’ (1977) 93 LQR 195), for example, recognised the need for the government of men as well as laws, and that the pursuit of social goals may require the enactment of particular, as well as general, laws. Indeed, he suggested that it would be impossible in practical terms for law to consist solely of general rules. Raz even criticised Hayek for disguising a political argument as a legal one in order to attack policies of which he did not approve. Yet, at the same time, Raz also saw the rule of law as essentially a negative value, acting to minimise the danger that could follow the exercise of discretionary power in an arbitrary way. In that respect, of seeking to control the exercise of discretion, he shares common ground with Thompson, Hayek and Dicey.

Raz claimed that the basic requirement from which the wider idea of the rule of law emerged is the requirement that the law must be capable of guiding the individual’s behaviour. He stated some of the most important principles that may be derived from this general idea:

It is evident that Raz saw the rule of law being complied with if the procedural rules of law-making were complied with, subject to a number of safeguards. It is of no little interest that Raz saw the courts as having an essential part to play in his version of the rule of law. This point will be considered further in section 10.5 in relation to judicial review.

2.2.5 ROBERTO UNGER

In Law and Modern Society (1976), the American critical legal theorist Roberto Unger set out a typology of social order, one category of which is essentially the rule of law system. Unger distinguished this form of social order from others on the basis of two particular and unique characteristics. The first of these is autonomy : the fact that law has its own sphere of authority and operates independently within that sphere without reference to any external controlling factor. Unger distinguished four distinct aspects of legal autonomy, which may be enumerated as follows:

The second distinguishing feature of legal order, according to Unger, is its generality : the fact that it applies to all people without personal or class favouritism. Everyone is equal under the law and is treated in the same manner.

In putting forward this typology of social order, Unger recognised the advantages inherent in a rule of law system over a system that operates on the basis of arbitrary power, but he was ultimately sceptical as to the reality of the equality that such a system supports and questioned its future continuation. The point of major interest for this book, however, is the way in which each of the four distinct areas of supposed autonomy is increasingly being challenged and undermined, as will be considered at the end of the next section.

2.2.6 MAX WEBER

Unger saw the development of the rule of law as a product of Western capitalist society and, in highlighting the distinct nature of the form of law under that system, he may be seen as following the German sociologist Max Weber. Weber’s general goal was to examine and explain the structure and development of Western capitalist society. In so doing, he was concerned with those unique aspects of that society, which distinguished it from other social formations. One such distinguishing characteristic was the form of law that he characterised as a formally rational system, which prefigured Unger’s notion of legal autonomy (see Weber, Wirtschaft und Gesellschaft (trans 1968)).

Weber’s autonomous legal system was accompanied by a State that limited itself to establishing a clear framework of social order and left individuals to determine their own destinies in a free market system. In the course of the twentieth century, however, the move from a free market to a basically planned economy, with the State playing an active part in economic activity, brought about a major change in both the form and function of law.

2.2.7 THE RULE OF LAW AND THE CONTEMPORARY FORM OF LAW

With specific regard to the effect of this change on law’s previous autonomy, there is clear agreement among academic writers that there has been a fundamental alteration in the nature of law. Whereas legislation previously took the form of fixed and precisely stated rules, now legislation tends be open-textured and to grant wide discretionary powers to particular State functionaries, resulting in a corresponding reduction in the power of the courts to control such activity. The courts have resisted this process to a degree, through the expansion of the procedure for judicial review, but their role in the area relating to administration remains at best questionable. The growth of delegated legislation, in which parliament simply passes enabling Acts, empowering ministers of State to make regulations, as they consider necessary, is a prime example of this process (considered in detail in section 3.5). In addition, once made, such regulations tend not to be general but highly particular, even technocratic, in their detail.

The commentators considered above came from a variety of academic backgrounds, but the essential practical importance of the concept of the rule of law was highlighted in a speech delivered by the former most senior Law Lord, the late Lord Bingham of Cornhill, in November 2006 under the deceptively simple title ‘The Rule of Law’ (the sixth Sir David Williams Lecture delivered at the Centre for Public Law at the University of Cambridge).

As has already been indicated, the Constitutional Reform Act (CRA) 2005 provides, in s 1, that the Act does not adversely affect ‘the existing constitutional principle of the rule of law’ or ‘the Lord Chancellor’s existing constitutional role in relation to that principle’. That provision is further reflected in the oath to be taken by Lord Chancellors under s 17(1) of the Act, to respect the rule of law and defend the independence of the judiciary. However, as Lord Bingham pointed out, the Act does not actually define what is meant by the rule of law, or indeed the Lord Chancellor’s role in relation to it. He also recognised the difficulty in fixing a single meaning or in fact any substantive content to the principle, citing various different academic references to it, some of which have been considered above, but nonetheless he felt it appropriate to offer his own understanding of the rule of law.

In Lord Bingham’s view, the authors of the 2005 Act apparently also recognised the difficulty of formulating a succinct and accurate definition suitable for inclusion in a statute, and consequently left the task of definition to the courts, if and when the occasion arose. The importance of such a task of definition cannot be underestimated for it places an essential duty on, and considerable power in the hands of, the judiciary. If, as the CRA recognises, the rule of law is an existing constitutional principle, then the judges will be required to construe statutes in relation to that principle in such a way as to ensure that they do not infringe that constitutional principle. A further implication of the CRA is that the Lord Chancellor’s conduct, in relation to role and duty to the rule of law, would be open to judicial review, were he to be challenged in that regard. As the rule of law already is an existing constitutional principle of the UK and one that may be more contentious in the future, it becomes imperative to attempt to define what it actually means. It is this task that Lord Bingham sets himself in the lecture under consideration and he suggests that at its core is the idea 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’.

Bingham rests his basic understanding on John Locke’s dictum that ‘Whereever law ends, tyranny begins’. Yet, even in that regard, he demurs by admitting that in some proceedings justice can only be done if they are not dealt with in public.

However, the main importance is the detail that Lord Bingham introduces through his consideration of the eight implications, or sub-rules, that he holds are particular aspects of the general principle of the rule of law. These sub-rules are:

The reasoning behind this requirement is that if everyone is bound by the law they must be able without undue difficulty to find out what it is, even if that means taking advice from their lawyers. Equally the response should be sufficiently clear that a course of action can be based on it. However, for this to be achieved, there has to be an end to what Lord Bingham refers to as the ‘legislative hyperactivity which appears to have become a permanent feature of our governance’. This excessive legislation, exacerbated by baffling parliamentary draftsmanship, is particularly problematic in relation to the ‘torrent of criminal legislation’, not all of which is ‘readily intelligible’.

However, Lord Bingham does not leave his fellow judges in doubt about their responsibilities in the creation of legal uncertainty and criticises ‘the length, complexity and sometimes prolixity of modern common law judgments, particularly at the highest level’. However, on consideration he rejects the supposed benefit of single opinion decisions in the House of Lords, with only one judgment and four decisions in agreement with that, in favour of multiple judgments ‘where the well-considered committee of five or more, can bring to bear a diversity of professional and jurisdictional experience which is valuable in shaping the law.’

As Lord Bingham saw it, the benefit of multiple decisions in shaping the law was however subject to the three caveats:

Lord Bingham does not share Dicey’s complete antipathy to the exercise of discretion, and cites immigration law as an example where it has been advantageous. Nonetheless he does believe that the essential truth of Dicey’s insight stands and that ‘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.’ However, he is satisfied that the need for discretion to be narrowly defined, and its exercise to be capable of reasoned justification are requirements which UK law almost always satisfies.

However, if the law is to apply to all, then governments should also accept the converse, that the rule of law does not allow for any distinction between British nationals and others. Unfortunately, the second part of the reciprocal link did not appear to have been considered when parliament passed Part 4 of the Anti-terrorism, Crime and Security Act 2001, which was held to be incompatible with the Human Rights Act in the Belmarsh cases (see 2.5.2).

This sub-rule goes beyond the formalistic approaches of both Dicey and Raz to insist that the rule of law does in fact connote a substantive content, although Lord Bingham is less certain as to the particular detail of that content. In response to Raz he states:

But he also recognises that this is a difficult area and that there is not even a standard of human rights universally agreed among ‘so-called’ civilised nations. However, although he admits to this element of vagueness about the content of this sub-rule, he maintains that ‘within a given state there will ordinarily be a measure of agreement on where the lines are to be drawn, and in the last resort (subject in this country to statute) the courts are there to draw them.’

Consequently the rule of law must require the legal protection of such human rights as are recognised in that society.

As a corollary of the principle that everyone is bound by and entitled to the benefit of the law is the requirement that people should be able, in the last resort, to go to court to have their rights and liabilities determined. In stating this sub-rule Lord Bingham makes it clear that he is not seeking to undermine arbitration, which he sees as supremely important, rather he is looking to support the provisions of a properly funded legal aid scheme, the demise of which he clearly regrets as may be seen from the following:

Lord Bingham is equally concerned about the fact that successive governments have insisted that the civil courts, judicial salaries usually aside, should be self-financing: the cost of running the courts being covered by fees recovered from litigants. The danger with such an approach is that the cost of going to court in order to get redress may preclude some people from gaining access to the legal system.

As Lord Bingham saw it:

This judicial role has of course been met through judicial review.

However, Lord Bingham is conscious, and unarguably so it would appear, of a shift away from the traditional relationship of the courts and the executive, under which the convention was that ministers, however critical of a judicial decision, and exercising their right to appeal against it or, in the last resort, legislate to reverse it retrospectively, did not engage in any public attack on the judiciary. In a muted, although nonetheless threatening, rejoinder to the present government Lord Bingham states his view that:

The rule of law would seem to require no less. The general arguments in favour of open hearings are familiar, summed up on this side of the Atlantic by the dictum that justice must manifestly and undoubtedly be seen to be done and on the American side by the observation that ‘Democracies die behind closed doors.’

While he sees application of this sub-rule to ordinary civil processes to be largely unproblematic, he does recognise that there is more scope for difficulty where a person faces adverse consequences as a result of what he is thought, or said to have done or not done, whether in the context of a formal criminal charge or in other contexts such as deportation, precautionary detention, recall to prison or refusal of parole. The question in those circumstances is what does fairness ordinarily require? Lord Bingham’s first response to the question is that, first and foremost, decisions must be taken by adjudicators who are:

But additionally a second element is involved, which relates to the presumption that any issue should not be finally decided against a person until they have had an adequate opportunity for their response to the allegation to be heard. In effect this means that:

In the context of criminal law this raises two pertinent issues:

(i) Disclosure This relates to material in the possession of the prosecutor, which they are for reasons of public interest unwilling to disclose to the defence. As the law stands at present, material need not be disclosed if in no way helpful to the defence; if helpful to the point where the defence would be significantly prejudiced by non-disclosure, the prosecutor must either disclose the material or abandon the prosecution.

(ii) Reverse burden of proof Some statutory offences place a reverse burden on the defendant; i.e. the defendant has to show that they did not commit the offence alleged. In Lord Bingham’s opinion such reversals in the normal burden of proof are ‘not in themselves objectionable, but may be so if the burden is one which a defendant, even if innocent, may in practice be unable to discharge.’

However, of much more concern to Lord Bingham in this regard was the increase in the instances, outside the strictly criminal sphere, in which parliament has provided that the full case against a person, put before the adjudicator as a basis for decision, should not be disclosed to that person or indeed to their legal representative. One example of this procedure is of course the non-derogation control orders issued under the Prevention of Terrorism Act 2005. In his Rule of Law lecture he expressed the view that:

In SSHD v E (2007) he was required to provide a practical consideration of and decision in relation to the concerns raised above.

This particular section of Lord Bingham’s lecture is interesting for the indirect way in which he examines the involvement of the UK in the ongoing war in Iraq, while as he said ‘not for obvious reasons touch[ing] on the vexed question whether Britain’s involvement in the 2003 war on Iraq was in breach of international law and thus, if this sub-rule is sound, of the rule of law.’

The way he achieved this was through a comparison between the procedures followed in 2003 and those followed at the time of the Suez invasion of 1956. While he concluded that the comparison suggests that over the period the rule of law has gained ground in the UK, it also allowed him to make some pointed comments in relation to the way the current war was initiated. In this regard he considered the different roles assumed by the law officers in both situations, and while he welcomed the involvement of the Attorney General in providing legal advice to the government, he raised doubts about to whom the Attorney General ultimately owed his duty – the government, as the then Attorney General had seen it, or the public at large, which Lord Bingham, personally, appears to support, as is evident from the following passage (The role of the Attorney General will be considered further at 9.3.2):

In conclusion Lord Bingham correlated the rule of law with a democratic society based 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.’ – A true Lockean view of the rule of law if there ever was one.

2.3.1 THE SEPARATION OF POWERS

Inherent in Lord Bingham’s speech is a tension between the judges and the other elements in the constitution – the executive/government and parliament – with Lord Bingham seeing the role of the judges as protecting the society from unlawful inroads into its liberties and rights. This tension has been heightened by the enactment of the Human Rights Act 1998, to be considered in the following section; however, before that can be done it is necessary to examine the concept of the separation of powers and related concepts such as parliamentary sovereignty and judicial independence. Although the idea of the separation of powers can be traced back to ancient Greek philosophy, it was advocated in early modern times by the English philosopher Locke and the later French philosopher Montesquieu, and found its practical expression in the constitution of the United States. The idea of the separation of powers is posited on the existence of three distinct functions of government (the legislative, executive and judicial functions) and the conviction that these functions should be kept apart in order to prevent the centralisation of too much power. Establishing the appropriate relationship between the actions of the State and the legal control over those actions crucially involves a consideration of whether there is any absolute limit on the authority of the government of the day. Answering that question inevitably involves an examination of the general constitutional structure of the UK and, in particular, the inter-relationship of two doctrines: parliamentary sovereignty and judicial independence. It also requires an understanding of the role of judicial review and the effect of the Human Rights Act 1998, and has caused no little friction between the judiciary and the executive, especially in the person of the Home Secretary.

The Separation of Powers and the Constitutional Reform Act 2005

The details of this major constitutional reform Act will be considered in detail in due course, but it cannot be denied that the force that drove the government to introduce the Act was an understanding of the imperatives of the separation of powers and the wish to regularise the constitution of the United Kingdom within that framework. Consequently, the anomalous position of the Lord Chancellor, who was a member of all three branches of the political structure, was to be resolved and the House of Lords, as the supreme court, was to be removed from its location within the legislative body.

2.3.2 PARLIAMENTARY SOVEREIGNTY

As a consequence of the victory of the parliamentary forces in the English revolutionary struggles of the seventeenth century, parliament became the sovereign power in the land. The independence of the judiciary was secured, however, in the Act of Settlement 1701. The centrality of the independence of the judges and the legal system from direct control or interference from the State in the newly established constitution was emphasised in the writing of John Locke, who saw it as one of the essential reasons for, and justifications of, the social contract on which the social structure was assumed to be based. It is generally accepted that the inspiration for Montesquieu’s Spirit of Law (De L’Esprit des Lois) was the English constitution, but if that is truly the case, then his doctrine of the separation of powers was based on a misunderstanding of that constitution, as it failed to take account of the express superiority of parliament in all matters, including its – relationship with the judiciary and the legal system.

Lord Steyn’s reasoning was subsequently questioned, and the traditional view of parliamentary sovereignty was reasserted by the current Master of the Rolls, Lord Neuberger, in his Weedon Lecture in April 2011. As he put it:

Lord Neuberger went on:

European Union Act 2011

In September 2011, Parliament passed the European Union Act 2011. The main purpose of the Act was to make provision for the application of the post-Lisbon treaties. However, s 18 of the Act, for the first time, places the common law principle of parliamentary sovereignty on a statutory footing and states that all EU law takes effect in the UK only by virtue of the will of Parliament, as provided in the ECA 1972. The issue of parliamentary sovereignty in relation to the European Union will be considered at 15.1.1.

2.3.3 JUDICIAL INDEPENDENCE