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Lecture 3: The Rule of Law

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John Stanton

on 18 October 2016

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Transcript of Lecture 3: The Rule of Law

Lecture 3: The Rule of Law
Lecture Outline
Recap on last week

Defining the rule of law

Historical development

A V Dicey

Criticisms of Dicey

Other considerations

Formal vs Substantive
Defining the rule of law
No single meaning

Moral principle?

Loveland: relates to what government can do and how it can do it

“the rule of law is a crucial stand in the constitutional tapestry for the protection of liberty: it excludes arbitrary or discriminatory action by the powerful against the powerless by erecting the general law as … [a] barrier between the two” (T R S Allan)
Defining the rule of law
David Cameron (2008)
– “Freedom under the rule of law. This simple, yet profound, expression explains almost everything you need to know about our country, our institutions, our history, our culture – even our economy”

Margaret Thatcher (1988)
– “The freedom of peoples depends fundamentally on the rule of law”

Tony Blair (2003)
– “Ours are not Western values, they are the universal values of the human spirit … freedom not tyranny; democracy not dictatorship; the rule of law not the rule of secret police”

Aspirational philosophy?

Securing compliance with law?

Over-used? Meangingless?

“the rule of law has an enduring importance as a central artefact in our legal and political culture” (Raz)
History of the rule of law
Natural Law

“It is better for the law to rule than one of the citizens … even the guardians of the laws are obeying the laws”
(Aristotle)

Aquinas and ‘god-given’ law

Social Contract Theory and the Rule of Law
(Hobbes, Locke, Rousseau)

Marxist perspectives

“rule of law is a political ideal which a legal system may lack or may possess to a greater or lesser degree … it is … just one of the virtues which a legal system may possess and by which it is to be judged. It is not to be confused with democracy, justice, equality … human rights” (Raz)

History of the rule
of law in the UK
“The King shall not be subject to men, but to God and the law: since rulers were subject to law” (Bracton)

Magna Carta 1215

Entick v Carrington (1765)
:‘what would Parliament say if the judges should take upon themselves to mould an unlawful power into a convenient authority, by new restrictions? That would be not judgment, but legislation … And with respect to the argument of State necessity, or a distinction that has been aimed at between State offences and others, the common law does not understand that kind of reasoning nor do our books take notice of any such distinction.’
A V Dicey
“credit for coining the expression ‘the rule of law’ is usually given to Professor A. V. Dicey … even if he coined the expression he did not invent the idea lying behind it” (Bingham, 2010)

“whether as the late Professor Lawson wrote, Dicey ‘coined’ the phrase ‘the Rule of Law’, or whether he merely popularised it, he was effectively responsible for ensuring that no discussion of modern democratic government can properly omit reference to it” (Bingham, 2002)

Bingham on Dicey
Dicey's first meaning
“it means in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government …; a man may with us be punished for a breach of law, but he cannot be punished for nothing else”
Dicey's second meaning
“equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts”


M v Home Office (1994)


Malone v MPC (1979): ‘England, is not a country where everything is forbidden except what is expressly permitted; it is a country where everything is permitted except what is expressly forbidden’. (Sir Robert Megarry)
Dicey's third meaning
“with us the laws of the constitution … are not the source but the consequence of the rights of the individuals, as defined and enforced by the courts; that in short, the principles of private law have with us been by the action of the courts and Parliament so extended as to determine the position of the Crown and of it servants; thus the constitution is the result of the ordinary law of the land”
Criticisms of Dicey
Jennings

Existence of discretionary power

Real equality before the law?
Other rule of law theories
Lon Fuller
1) Generality

2) Promulgation

3) Non-retroactivity

4) Clarity

5) Non-contradiction

6) Not requiring the impossible

7) Constancy through time

8) Congruence between official actions and the declared rule

Tom Bingham
1) The law must be accessible and so far as possible intelligible, clear and predictable

2) Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion

3) The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation

4) Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably

5) The law must afford adequate protection of fundamental human rights

6) Means must be provided for resolving without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve

7) Adjudicative procedures provided by the state should be fair

8) The rule of law requires compliance by the state with its obligations in international law as in national law

Three views concerning rule of law
Principle of legality

Formal conceptions

Substantive conceptions
Legality
Enacted / done in line with the law

No moral aspect

Entick v Carrington

Jackson v AG
Formal conceptions
General characteristics

‘ensuring that the law should conform to standards designed to enable it effectively to guide action’ (Raz)

R (Anufrijeva) v Secretary of State for the Home Department -
"a constitutional state must accord to individuals the right to know of a decision before their rights can be adversely affected"

Anisminic

Reilly (No. 2)
Joseph Raz
1) All laws should be prospective, open and clear

2) Laws should be relatively stable

3) The making of particular laws should be guided by open, stable, clear and general rules

4) The independence of the judiciary must be guaranteed

5) The principles of natural justice must be observed

6) The courts should have review powers over the implementation of the other principles

7) The courts should be easily accessible

8) The discretion of the crime-preventing agencies should not be allowed to pervert the law.

Substantive Conceptions
Moral content - fundamental rights and principles of equality

Entick v Carrington

M v Home Office

R (Bourgass) v SSoJ
[2015] UKSC 54

Ronald Dworkin
Reading
Essential post-lecture reading

Elliott and Thomas, pp.62 - 73
J. Raz, ‘The Rule of Law and its Virtue’ (1977) 93 Law Quarterly Review 195

Relevant case law:

Entick v Carrington (1765) 19 State Trials 1029
Liversidge v Anderson [1942] AC 206
Burmah Oil Co Ltd v Lord Advocate [1965] AC 75
Malone v Metropolitan Police Commissioner [1979] Ch 344
R v Inland Revenue Commissioners, ex parte Rossminister [1980] AC 952
M v Home Office [1994] 1 AC 377 (HL)

Additional reading

Parpworth, Chapter 3
T. Bingham, The Rule of Law (Allen Lane, 2010) – Part I (Chapters 1 and 2)
T.R.S. Allan, ‘The Rule of Law as the Rule of Reason: Consent and
Constitutionalism’ (1999) 115 Law Quarterly Review 221
C. Harlow, ‘Accidental Loss of an Asylum Seeker’ (1994) 57 Modern Law Review 620
Full transcript