THE RULE OF LAW AND
HUMAN RIGHTS 2
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.
The ‘rule of law’ represents a symbolic ideal against which proponents of widely divergent political persuasions measure and criticise the shortcomings of contemporary State practice. This varied recourse to the rule of law is, of course, only possible because of the lack of precision in the actual meaning of the concept; its meaning tends to change over time and, as will be seen below, to change in direct correspondence with the beliefs of those who claim its support and claim, in turn, to support it. It is undeniable that the form and content of law and legal procedure have changed substantially in the course of the twentieth and twenty-first centuries. It is usual to explain such changes as being a consequence of the way in which, and the increased extent to which, the modern State intervenes in everyday life, be it economic or social. As the State increasingly took over the regulation of many areas of social activity, it delegated wide-ranging discretionary powers to various people and bodies in an attempt to ensure the successful-implementation of its policies. The assumption and delegation of such power on the part of the State brought it into potential conflict with previous understandings of the rule of law, which had entailed a strictly limited ambit of State activity. The impact of this on the understanding and operation of the principle of the rule of law and its implications in relation to the judiciary are traced out below and will be returned to in Chapter 9.
Some might consider that it is not appropriate to have a section such as this in a textbook on the English legal system and that its proper place would be in a text on constitutional law or legal theory. However, it is essential to appreciate the central importance of the concept of the rule of law to the whole structure and operation of the English legal system. The fundamental nature of the concept of the rule of law is and always has been central, although perhaps implicit, in all the aspects of the legal system that are considered in this text. However, the Constitutional Reform Act 2005 has for the first time recognised this centrality in the form of a statutory provision. As s 1 of the Act simply and clearly states, it does not adversely affect:
(a) the existing constitutional principle of the rule of law, or
(b) the Lord Chancellor’s existing constitutional role in relation to that principle.
This very point was taken up by the former most senior judge in the House of Lords, the late Lord Bingham, whose speech on the issue will be considered in detail below.
As has been stated, although the idea of the rule of law is difficult to give a substantive definition of, that has not prevented a number of legal and social theorists from attempting to do just that. However, as will be seen and as has already been hinted at, the various explanations of what is or should be, understood by the concept, differ considerably and are different in accord with the socio-political approach adopted by the individual writers.
2.2.1 AV DICEY
According to AV Dicey in An Introduction to the Study of the Law of the Constitution (1885), the UK had no such thing as administrative law as distinct from the ordinary law of the land. Whether he was correct or not when he expressed this opinion – and there are substantial grounds for doubting the accuracy of his claim even at the time he made it – it can no longer be denied that there is now a large area of law that can be properly called administrative, that is, related to the pursuit and application of particular State policies, usually within a framework of statutory powers.
According to the notoriously chauvinistic Dicey, the rule of law was one of the key features that distinguished the English constitution from its Continental counterparts. Whereas foreigners were subject to the exercise of arbitrary power, the Englishman was secure within the protection of the rule of law. Dicey suggested the existence of three distinct elements, which together created the rule of law as he understood it:
An absence of arbitrary power on the part of the State : the extent of the State’s power, and the way in which it exercises such power, is limited and controlled by law. Such control is aimed at preventing the State from acquiring and using wide discretionary powers, for, as Dicey correctly recognised, the problem with discretion is that it can be exercised in an arbitrary manner, and that above all else is to be feared, at least as Dicey would have us believe.
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.
The fact that this strong Rechtsstaat version of the rule of law never existed in England reflects its particular history. The revolutionary struggles of the seventeenth century had delivered effective control of the English State machinery to the bourgeois class, who exercised that power through parliament. After the seventeenth century, the English bourgeoisie was never faced with a threatening State against which it had to protect itself; it effectively was the State. On the Continent, this was not the case and the emergent bourgeoisie had to assert its power against, and safeguard itself from, the power of a State machinery that it did not control. The development of Rechtsstaat theory as a means of limiting the power of the State can be seen as one of the ways in which the Continental bourgeoisie attempted to safeguard its position. In England, however, there was not the same need in the eighteenth and nineteenth centuries for the bourgeoisie to protect itself behind a Rechtsstaat version of the rule of law. In England, those who benefited from the enactment and implementation of general laws as required by Rechtsstaat theory – the middle classes – also effectively controlled parliament and could benefit just as well from its particular enactments. Thus, in terms of nineteenth-century England, as Franz Neumann stated, the doctrines of parliamentary sovereignty and the rule of law were not antagonistic, but complementary.
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):
Stripped of all technicalities the Rule of Law means that government in all its actions is bound by rules fixed and announced beforehand.
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:
The Rule of Law implies limits on the scope of legislation, it restricts it to the kind of general rules known as formal law; and excludes legislation directly aimed at particular people.
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.
Thompson shared Hayek’s distrust of the encroachments of the modern State and he was equally critical of the extent to which the contemporary State intervened in the day-to-day lives of its citizens. From Thompson’s perspective, however, the problem arose not so much from the fact that the State was undermining the operation of the market economy, but from the way in which the State used its control over the legislative process to undermine civil liberties in the pursuit of its own concept of public interest.
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:
… the Rule of Law, itself, the imposing of effective inhibitions upon power and the defence of the citizen from power’s all-intrusive claims, seems to me an unqualified human good.
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:
Laws should be prospective rather than retroactive. People cannot be guided by or expected to obey laws that have not as yet been introduced. Laws should also be open and clear to enable people to understand them and guide their actions in line with them.
Laws should be stable and should not be changed too frequently as this might lead to confusion as to what was actually covered by the law.
There should be clear rules and procedures for making laws.
The independence of the judiciary has to be guaranteed to ensure that they are free to decide cases in line with the law and not in response to any external pressure.
The principles of natural justice should be observed, requiring an open and fair hearing to be given to all parties to proceedings.
The courts should have the power to review the way in which the other principles are implemented to ensure that they are being operated as demanded by the rule of law.
The courts should be easily accessible as they remain at the heart of the idea of making discretion subject to legal control.
The discretion of the crime preventing agencies should not be allowed to pervert the law.
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:
substantive autonomy : this refers to the fact that law is not explicable in other, non-legal terms. To use the tautological cliché – the law is the law. In other words, law is self-referential, it is not about something else; it cannot be reduced to the level of a mere means to an end, it is an end in itself;
institutional autonomy : this refers to the fact that the legal institutions such as the courts are separate from other State institutions and are highlighted in the fundamental principle of judicial independence;
methodological autonomy : this refers to the fact that law has, or at least lays claim to having, its own distinct form of reasoning and justifications for its decisions;
occupational autonomy : this refers to the fact that access to law is not immediate, but is gained through the legal professions, who act as gate-keepers and who exercise a large degree of independent control over the working of the legal system.
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
While the State remained apart from civil society, its functions could be restricted within a limited sphere of activity circumscribed within the doctrine of the rule of law. However, as the State became increasingly involved in actually regulating economic activity, the form of law had by necessity to change. To deal with problems as and when they arose, the State had to assume discretionary powers rather than be governed by fixed predetermined rules. Such discretion, however, is antithetical to the traditional idea of the rule of law, which was posited on the fact of limiting the State’s discretion. Thus emerged the tension between the rule of law and the requirements of regulating social activity that FA von Hayek, for one, saw as a fundamental change for the worse in our society.
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 increased use of tribunals with the participation of non-legal experts rather than courts to decide disputes, with the underlying implication that the law is not capable of resolving the problem adequately, also represents a diminishment in law’s previous power, as does the use of planning procedures as opposed to fixed rules of law in determining decisions. (Tribunals will be considered in Chapter 12.)
Legislation also increasingly pursues substantive justice rather than merely limiting itself to the provision of formal justice as required under the rule of law. As an example of this, consumer law may be cited: thus, in the Unfair Contract Terms Act 1977, contract terms are to be evaluated on the basis of reasonableness and, under the Consumer Credit Act 1974, agreements may be rejected on the basis of their being extortionate or unconscionable. Such provisions actually override the market assumptions as to formal equality in an endeavour to provide a measure of substantive justice.
All the foregoing examples of a change can be characterised as involving a change from ‘law as end in itself’ to ‘law as means to an end’. In Weberian terms, this change in law represents a change from formal rationality, in which law determined outcomes to problems stated in the form of legal terms through the application of abstract legal concepts and principles, to a system of substantive rationality, where law is simply a mechanism to achieve a goal set outside of law.
In other words, law is no longer seen as completely autonomous as it once was. Increasingly, it is seen as merely instrumental in the achievement of some wider purpose, which the State, acting as the embodiment of the general interest, sets. Paradoxically, as will be seen later, even when the law attempts to intervene in this process, as it does through judicial review, it does so in a way that undermines its autonomy and reveals it to be simply another aspect of political activity.
The return to a more Hayekian, free-market-based economy and polity since the election of the Thatcher Conservative government in 1979, and its continuation by all other governments, of whatever persuasion, since then has certainly changed the rhetoric and ideology about the relationship of the individual and the state. Whether it has changed the reality of state action in relation to individuals, and the role of law in mediating that relationship, is a matter of doubt and debate, especially in light of the emergence of the threat of terrorist activity. The immediate actions and proposals of the current Conservative/Liberal Democrat coalition government, such as their much-heralded ‘bonfire of the quangos’, appear to signal their intention to pursue the practical reduction of state intervention interference, with a corresponding passage of power to market mechanisms, although the actual results remain to be seen and assessed.
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 law must be accessible and so far as possible intelligible, clear and predictable.
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:
(i) whatever the diversity of opinion the judges should recognise a duty, not always observed, to try to ensure that there is a clear majority ratio. Without that, no one can know what the law is until Parliament or a later case lays down a clear rule.
(ii) excessive innovation and adventurism by judges had to be avoided. Without challenging the value or legitimacy of judicial development of the law, taken to extremes, such judicial creativity can itself destroy the rule of law.
(iii) all these points apply with redoubled force in the criminal field with the conclusion that judges should create new offences or widen existing offences so as to make punishable conduct that was not previously subject to punishment.
• Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion.
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.
• The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.
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).
• The law must afford adequate protection of fundamental human rights.
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:
A state which savagely repressed or persecuted sections of its people could not in my view be regarded as observing the rule of law, even if the transport of the persecuted minority to the concentration camp or the compulsory exposure of female children on the mountainside were the subject of detailed laws duly enacted and scrupulously observed. So to hold would, I think, be to strip the existing constitutional principle affirmed by section 1 of the 2005 Act of much of its virtue and infringe the fundamental compact which, as I shall suggest at the end, underpins the rule of law.
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.
• Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve.
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:
Whether conditional fees, various pro bono schemes and small claims procedures have filled the gap left by this curtailment I do not myself know. Perhaps they have, and advice and help are still available to those of modest means who deserve it. But I have a fear that tabloid tales of practitioners milking the criminal legal aid fund of millions, and more general distrust of lawyers and their rewards, may have enabled a valuable guarantee of social justice to wither unlamented.
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.
• Ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers.
As Lord Bingham saw it:
The historic role of the courts has of course been to check excesses of executive power, a role greatly expanded in recent years due to the increased complexity of government and the greater willingness of the public to challenge governmental (in the broadest sense) decisions. Even under our constitution the separation of powers is crucial in guaranteeing the integrity of the courts’ performance of this role.
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:
This convention appears to have worn a little thin in recent times, as I think unfortunately, since if ministers make what are understood to be public attacks on judges, the judges may be provoked to make similar criticisms of ministers, and the rule of law is not, in my view, well served by public dispute between two arms of the state.
• Adjudicative procedures provided by the state should be fair.
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:
independent and impartial: independent in the sense that they are free to decide on the legal and factual merits of a case as they see it, free of any extraneous influence or pressure, and impartial in the sense that they are, so far as humanly possible, open-minded, unbiased by any personal interest or partisan allegiance of any kind.
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:
a person potentially subject to any liability or penalty should be adequately informed of what is said against him; that the accuser should make adequate disclosure of material helpful to the other party or damaging to itself; that where the interests of a party cannot be adequately protected without the benefit of professional help which the party cannot afford, public assistance should so far as practicable be afforded; that a party accused should have an adequate opportunity to prepare his answer to what is said against him; and that the innocence of a defendant charged with criminal conduct should be presumed until guilt is proved.
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:
Any process which denies knowledge to a person effectively, if not actually, accused of what is relied on against him, and thus denies him a fair opportunity to rebut it, must arouse acute disquiet. But these categories reflect the undoubted danger of disclosing some kinds of highly sensitive information, and they have been clearly identified and regulated by Parliament, which has judged the departure to be necessary and attempted to limit its extent.
In SSHD v E (2007) he was required to provide a practical consideration of and decision in relation to the concerns raised above.
• The existing principle of the rule of law requires compliance by the state with its obligations in international law.
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):
There seems to me to be room to question whether the ordinary rules of client privilege, appropriate enough in other circumstances, should apply to a law officer’s opinion on the lawfulness of war: it is not unrealistic in my view to regard the public, those who are to fight and perhaps die, rather than the government, as the client … [a]nd the case for full, contemporaneous, disclosure seems to me even stronger when the Attorney General is a peer, not susceptible to direct questioning in the elected chamber.
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.
There is, in any case, high judicial authority for claiming that the separation of powers is an essential element in the constitution of the UK (see R v Hinds (1979), p 212, in which Lord Diplock, while considering the nature of different Commonwealth constitutions in a Privy Council case, stated that ‘It is taken for granted that the basic principle of the separation of powers will apply …’). In any case, the point of considering the doctrine at this juncture is simply to highlight the distinction and relationship between the executive and the judiciary and to indicate the possibility of conflict between the two elements of the constitution. This relationship assumes crucial importance if one accepts, as some have suggested, that it is no longer possible to distinguish the executive from the legislature as, through its control of its majority in the House of Commons, the executive (that is, the government) can legislate as it wishes and in so doing, can provide the most arbitrary of party political decisions with the form of legality. The question to be considered here is to what extent the judiciary can legitimately oppose the wishes of the government expressed in the form of legislation, or to what extent they can interfere with the pursuit of those wishes. As will be seen below, the power of the judiciary in-relation to legislative provisions has been greatly enhanced by the passage of the Human Rights Act 1998.
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.
It is interesting that previous conservative thinkers have suggested that the whole concept of parliamentary sovereignty is itself a product of the self-denying ordinance of the common law. Consequently, they suggested that it was open to a subsequent, more robust judiciary, confident in its own position and powers within the developing constitution, to reassert its equality with the other two elements of the polity. Just such an approach may be recognised as implicit in a number of the judgments of the augmented nine-person House of Lords in Jackson v HM Attorney General (2005). The case concerned the use of the Parliament Acts to pass legislation banning hunting with dogs, and in that respect it will be considered in detail at 3.3, but in doing so it by necessity raised, without the requirement to deal definitively with, the essential constitutional question as to the relationship of the courts and parliament. While the majority of the judges, at the least, express reservations as to the power of the House of Commons under the parliament Acts, the most overtly challenging statement can be seen in the judgment of Lord Steyn. His view of parliamentary sovereignty may be deduced from the following passage, in which he considers the argument of the Attorney General that the application of the Parliament Acts effectively is subject to no limitation:
If the Attorney General is right the 1949 Act could also be used to introduce oppressive and wholly undemocratic legislation … The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.
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:
Ultimately, it might be said that Lord Steyn’s point that the courts had invented Parliamentary sovereignty and could therefore remove or qualify it involves an intellectual sleight of hand: Parliamentary sovereignty was acknowledged rather than bestowed by the courts. They acknowledged what had been clearly established by civil war, the Glorious Revolution of 1688, the Bill of Rights 1689 and the Act of Settlement 1701 (emphasis added).
Lord Neuberger went on:
[Parliament] can, if it chooses, and clearly and expressly states that it is so doing, enact legislation which is contrary to the rule of law… neither the Convention nor the Human Rights Act goes nowhere near to imposing a limit on Parliamentary legal sovereignty.
It is true that membership of the Convention imposes obligations on the state to ensure that judgments of the Strasbourg court are implemented, but those obligations are in international law, not domestic law. And, ultimately, the implementation of a Strasbourg, or indeed a domestic court judgment is a matter for Parliament. If it chose not to implement a Strasbourg judgment, it might place the United Kingdom in breach of its treaty obligations, but as a matter of domestic law there would be nothing objectionable in such a course. It would be a political decision, with which the courts could not interfere.
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.