JEHAN SAMARASINGHE SCHOLARS GUILD - PUBLIC LAW

INTRODUCTION
The rule of law represents one of the most fundamental concepts of the constitution.

The concept is of great antiquity and can be traced to Aristotle.

Aristotle once stated, “The rule of law is better than that of any individual”.
The essence of the concept is that society must be governed by law and all must be equally
subject to the law.
In Western liberal democracies the rule of law plays a central role, insisting not only citizens
obey the law and that disputes are settled through the law but also that government and all
public officials act according to law and are accountable to the law.

The Magna Carta 1215 and the Bill of Rights 1688 were attempts made by people of
the time to enforce the rule of law in Britain. The rule of law is a set of values or principles
that are the cornerstone of the British legal system.

However, the rule of law has been interpreted in many ways and this introduced a
complexity.

The Constitutional Reform Act 2005 provides, in Section 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".
The Attorney-General has suggested that this provision, illustrates the importance attached to
the rule of law in the modern age, which is further reflected in the oath taken by Lord
Chancellors under Section 17(1) of the Act, to respect the rule of law and defend the
independence of the judiciary.
But the Act does not define the existing constitutional principle of the rule of law, or the
Lord Chancellor's existing constitutional role in relation to it.
Although not defined in the 2005 Act, the role has been described as to speak up in cabinet
and Parliament against proposals that might damage the rule of law.

However given that meetings of the cabinet are held in private, the exact role in decision
making of individual Lord Chancellors has been hard to determine and, as a result, the courts
have had no opportunity to consider it.

The rule of law has not been defined by a statute and even though it has been routinely
invoked by judges in their judgments, they have not explained what they meant by the
expression, and well-respected authors have thrown doubt on its meaning and value.
INTERPRETATIONS OF THE RULE OF LAW
The uncertainty which surrounds this concept is further seen in the various attempts to define
what the rule of law is.

In the Marxist theory, for example, the rule of law is a false ideology;
it lulls people in to thinking that law is both necessary and good, while in fact the concept
masks the reality that law protects the interests of the privileged classes at the expense of the
masses.

Most legal theorists believe that the rule of law has purely formal characteristics, meaning
that the law must be publicly declared, with prospective application, and possess the
characteristics of generality, equality, and certainty, but there are no requirements with
regard to the content of the law.

Others, including a few legal theorists, believe that the rule of law necessarily entails
protection of individual rights.

Within legal theory, these two approaches to the rule of law are seen as the two basic
alternatives, respectively labeled the formal (content free) and substantive (content
rich) approaches.
Still, there are other views as well. Some believe that democracy is part of the rule of law.

CONTENT FREE INTERPRETATION

The content free interpretation of the rule of law focuses on the form of law and the
procedures by which law is made.

The legal writer Joseph Raz identified eight basic principles which reflect this approach -

i. All laws should be prospective, open and clear.

ii. Laws should be relatively stable.

iii. The making of laws should be guided by clear rules.

iv. The judiciary should be independent.

v. The principles of natural justice should be observed.

vi. The courts should be able to review the implementation of other principles.

vii. The courts should be easily accessible.

viii. The discretion of the police and crime fighting agencies should not pervert the law.
Supporters of the „content free‟ interpretation do not deny that the principles should be
supplemented by other values such as rights, justice and democracy but argue that these
values should not be attached to the concept of the rule of law.

Thus Joseph Raz has commented on the tendency to use the rule of law as a shorthand
description of the positive aspects of any given political system.

John Finnis has described the rule of law as "the name commonly given to the state of
affairs in which a legal system is legally in good shape".

Judith Shuklar has suggested that the expression may have become meaningless thanks to
ideological abuse and general over-use.

CONTENT RICH INTERPRETATION

The content rich interpretation is a more complex and idealistic view of the rule of law.

Ronald Dworkin summarized it as,

“I shall call the second conception of the rule of law the ‘rights’ conception...It assumes that
citizens have moral rights and duties with respect to one another, and political rights against
the state as a whole. It insists that these moral and political rights be recognized in positive
law, so that they may be enforced upon the demand of individual citizens through the courts
and other judicial institutions of the familiar types, so far as this is practicable”.

DICEY’S INTERPRETATION
Dicey interpreted the rule of law to have THREE principal aspects, namely that no
punishment may be inflicted other than for a breach of the law, irrespective of rank and
status all are equal under the law and, rights and freedoms are best protected under the
common law rather than a formal Bill of Rights.

1. No punishment may be inflicted other than for a breach of the law.

2. Irrespective of rank and status all are equal under the law.

3. Rights and freedoms are best protected under the common law.
No punishment may be inflicted other than for a breach of the law
What Dicey meant by no punishment may be inflicted other than for a breach of the law is
that no man is punishable or can be made to suffer in body or goods except for a distinct
breach of law established in the ordinary legal manner before the ordinary courts of the land.

According to Dicey a government based on the rule of law excludes the existence of
arbitrary laws, retrospective penal law, discretionary and prerogative powers.

This limb is designed to deny governments any right to make secret or arbitrary laws, or
retrospective penal laws, and to limit the discretionary powers of the government so that the
law protects the individual. In order to comply fully with this requirement, laws should be
open, accessible, clear and certain.

Sir Ivor Jennings criticized Dicey’s insistence on a lack of arbitrariness and the absence
of wide discretion as unrealistic.
To illustrate this, Sir Ivor Jennings gave a number of examples such as any court can
punish a man for contempt of court by imprisoning him for an indefinite period of time, if a
man is convicted of manslaughter he may be released at once or imprisoned for life, a person
can be compelled to leave his work for a month or two to serve on a jury, if the country is in
danger a man‟s property can be taken perhaps without compensation.
In the law-making process, as Jennings points out although the three component parts of
Parliament must agree, this does not mean that arbitrary laws cannot be passed.
Jennings points to the Defence of the Realm Act 1914, which conferred wide ranging
powers on the Executive to deal with the war situation.
Similarly, are Acts such as the Official Secrets Act 1911, Prevention of Terrorism
(Temporary Provisions) Act 1974 and Anti-Terrorism, Crime and Security Act
2001 which give officials wide discretionary powers where individual rights may not be
protected when they come into conflict with the greater public good of defending the realm
from external or internal attack.

It is possible to see that the rule of law is too vague to be of practical use in the modern era
because the government can hardly operate without discretionary power, for example under
Section 24 of the Police & Criminal Evidence Act 1984.
In the Acts itself, there are safeguards i.e. Sections 78(1), 76(1) and 76(2), 82(3) and the
Codes of Practice and the courts supervisory role reduces the potential for abuse.

The courts role in preventing abuse can be seen in Entick V Carrington [1765] where the
courts declared that the Secretary of State could not order the search of Entick‟s house
because there was no law authorizing such searches.
This is one of the earliest cases where the courts demonstrated a willingness to challenge the
power of the government.
Furthermore it was held in Rossminster, that if the requirements of the statute are met, the
power exercised was lawful.
Thus in respect of discretionary powers, what is important is not their existence, but
establishing legal and political safeguards by which the use of such powers maybe
controlled.

There is also the problem of retrospectivity, which Dicey condemned.

To make a person liable for an offence which at the time the act was committed was not an
offence contravenes the rule of law.
In Waddington V Miah, the House of Lords interpreted the Immigration Act 1971 in a
manner which denied retrospective effect in relation to criminal offences, using as an aid to
construction, Article 7 of the ECHR, which prohibits retrospective criminal law.
Nonetheless, the presumption will not be available where parliament expressly provides for
retrospectivity, as for example, in the War Damage Act 1965 and the War Crimes Act
1991.
In Burmah Oil V Lord Advocate, where the House of Lords had awarded compensation for
the destruction of oil installations in wartime, the government speedily introduced legislation
nullifying the effect of the decision under the War Damage Act 1965.
This case demonstrates clearly the subordination of the judiciary to parliamentary supremacy
and the limits thereby imposed on the judges‟ capacity to uphold rights.
Also in RVR, the House of Lords upheld the conviction of a husband who raped his wife,
which was lawful at that time, and found him guilty.

There are a number of examples of legislation which has been applied retrospectively, for
example to validate activities which have no statutory basis, or to correct practices which
have been found to be illegal.
Examples include:

 Statutory Instruments (Production and Sale) Act 1996 which amended the
Statutory Instruments Act 1946 to validate retrospectively and authorize
prospectively the printing of statutory instruments by contractors working for HMSO.
 Caravans (Standard Community Charge and Rating) Act 1991 which
amongst other provisions excluded caravans from the definition of „domestic subjects‟
in the Abolition of Domestic Rates Etc (Scotland) Act 1987 and deemed the
amendment to have had effect since 1 April 1990.
 The Wireless Telegraphy (Validation of Charges) Act 1954 provided a
statutory basis for the wireless licence fees which the Postmaster-General had been
collecting for around 50 years, after it was found that the presumed legal basis was
defective.

According to Dicey, governments must possess clearly defined legal powers to authorize
actions. In the UK, it is difficult to be precise about prerogative powers.
Irrespective of rank and status all are equal under the law
Dicey’s second limb - equality of the law - emphasizes the notion that government itself is
subject to law and that everyone, irrespective of rank, whether official or individual, shall be
subject to the law, and subject to the same courts.

Dicey has often been interpreted as requiring that there be actual equality in terms of legal
rights, powers and capacities.
Such an interpretation is however, misguided.
The idea of equality before the law, irrespective of status, is subject to so many exceptions
„that the statement is of doubtful value‟.
In so far as equal powers are concerned, it must be recognized that the police have powers
over and above citizens, that ministers have power to enact legislation, diplomats have
immunities not available to citizens and the Crown enjoys immunities under the law.
As Sir Ivor Jennings points out, no two citizens are entirely equal - „….pawnbrokers,
money lenders, landlords, driver of motor cars, married women, and indeed most other
classes have special rights and duties‟.

Dicey’s argument was not that all persons have equal powers and rights.
The doctrine acknowledges the need of a consistent application of the law irrespective of
status.
This is seen in R V Secretary of State for the Home Department exparte Fire Brigades
Union where the Court of Appeal and the House of Lords ruled that where a statute was in
force that the Home Secretary could not avoid its provisions and act under prerogative.
He could persuade Parliament to amend the Act, or repeal its provisions, but he could not
ignore Parliament‟s enactment and use a more convenient source of power.

No one is immune from criminal prosecution (other than the Monarch).

The concept of responsible government ensures that the government is held accountable to
the parliament and the electorate.
Parliamentary procedures such as question time, debate time and select committees ensure
accountability.
Doctrine of ministerial responsibility ensures that the government proceeds according to law
and principles of the constitution.

Judicial review ensures that the Executive acts within the law.
Judicial review represents the means by which the sovereignty of parliament and the rule of
law are upheld. The doctrine of judicial review represents a bedrock for the application of the
rule of law, keeping those with law making and discretionary powers within the law.
From cases such as Entick V Carrington, where the courts declared that the Secretary of
State could not order the search of Entick‟s house because there was no law authorizing the
search, and R V Secretary of State for the Home Department ex parte Fire Brigades
Union, wherein Kenneth Baker, the Home Secretary, was held to be acting ultra vires when
attempting to introduce a new tariff for compensation under the Criminal Injuries Scheme
under the royal prerogative rather than under power conferred by statute, the principal is
established and reiterated.
However, there are limitations on what judges can achieve, where the parliament grants
broad powers to the authorities there is little judges can do.

In M V Home Office, it was held that the Executive was not above the law and that the
Secretary of State was not entitled to claim Crown immunity (a judicial doctrine that prevents the
government or its political subdivisions, departments, and agencies from being sued without its consent. The
doctrine stems from the ancient English principle that the monarch can do no wrong).
In this case an asylum seeker was deported by the Home Secretary before his application for
judicial review had been completed. Although the applicant was beyond the jurisdiction by
this stage, the House of Lords held that the Home Secretary, in his official capacity, had been
guilty of contempt of court for failing to comply with an order to return the applicant whilst
he was still enroute.

Laws LJ in Al Rawi and others V Secretary of State for Foreign and Commonwealth
Affairs and another [2007] accepted Lord Hoffmann‟s views in Secretary of State for the
Home Department V Rehman [2003] for judicial non-intervention in the process of certain
instances of Executive decision making.
Judicial non-intervention is justified where the Executive has access to special information
and expertise in a decision, because of its nature and consequences, requires such legitimacy
that it can be made only by a person accountable to Parliament and electorate.

Subsequently, in R (Corner House Research) V Director of Serious Fraud Office [2009]

it was recognized that the rule of law is not absolute.
National Security, as well as other public interest considerations, can outweigh the Dicean
injunction forbidding wide discretionary and arbitrary powers.

Furthermore under common law, as the much cited case of Malone V Metropolitan Police
Commissioner revealed, where there is no domestic law protecting „rights‟ the courts will
refuse to provide that protection.

An aspect of the rule of law relating to the common law principle of open justice among
other things includes aspects of the rules of evidence which have been placed before a judge
and referred to in court proceedings should be accessible to all.
Where there objections to access to the documents, these objections would be considered by
court.
In R (Guardian News and Media Ltd) V City of Westminster, a journalist sought access
to documents relating to extrad-ition proceedings brought by the government of the USA
against two British Citizens.
The court accepted that the claimant had a serious journalistic purpose in stimulating public
debate on a matter of public interest.
Rule of law's main criticism is that, it fails to deal with the supremacy of the Parliament.
If Parliament legislates in a way that is contrary to the rule of law, it is still the law and there
is nothing that the courts can do about it.
Dicey claimed that Parliament would protect our liberties and restrain the government.
Perhaps that was true in 1885, but nowadays the government of the day controls Parliament
through its majority and can nearly always get its own way.

Rights and freedoms are best protected under the common law
According to Dicey, rights and freedoms are best protected under the common law.
The final principle concerns individual rights.
There is no need for a Bill of Rights because the general principle of the constitution is the
result of judicial decisions determining rights of the private person.
The courts protect them in their decisions by developing the common law in a way that
respects individual liberty.
Parliament legislates on particular problems.
In contrast, Bills of Rights are documents which promise all sorts of rights.
These promises are so general and capable of so many meanings that they are meaningless.
Again the Bill of Rights might not be respected by the government and might be
unenforceable.
This reveals Dicey's belief that the common law affords greater protection to the citizens
than a written constitution.

In particular, individual and civil liberties are to be determined and protected by the courts in
accordance with the common law in the United Kingdom and are not derived from any one
particular instrument.
It is also important to note that the rule of law does not refer to any fundamental or superior
law.
The law referred to is the law that was enacted by Parliament in the form of legislation and
as applied by the courts in the form of the common law.

The rights to liberty and to assembly are determined by the courts in the course of ordinary
legal proceedings.
This reflects the traditional view that citizens are free to do whatever the law does not
prohibit.
The third limb of Dicey’s description of the rule of law reveals his preference for common
law protection of human rights over and above a specifically formulated code of rights, thus
demonstrating a faith in the judiciary which is not sustainable nowadays.

Common law puts the citizens in a fragile position in that the scope and extent of their rights
and freedoms are not properly defined.
It is sufficient to recognize that nowadays it is principally Parliament that defines freedoms
and rights, as for example in the Equal Pay Act 1970, the Sex Discrimination Act
1975 and the Race Relations Act 1965. Another example relates to employment rights,
many of which are created under EC law, which overrides domestic law.

The Human Rights Act 1998 (HRA 1998) for the first time „incorporates‟ rights
protected under the ECHR into domestic law.
Accordingly, citizens no longer have to undertake the lengthy process of applying to the
European Court of Human Rights in Strasbourg, but are able to seek a remedy in domestic
courts. The HRA now provides the benchmark against which English Law is tested to
comply with the European-wide standards of rights and freedoms.

Under the HRA 1998 it is unlawful for public authorities including courts to act
incompatibly with public rights. HRA 1998 has undoubtedly buttressed the rule of law.
However, it is important to recognize the limitations of the HRA 1998.
Although there is much that judges can do, the Act has been carefully drafted to ensure that
statutes are protected from invalidation from the judiciary, leaving it to the Parliament to
correct any laws which are incompatible with ECHR rights.
This is illustrated in A V Secretary of State for the Home Department.

It is possible to say that the first two limbs of Dicey’s interpretation holds true nowadays but
the third has long been regarded as redundant.
Dicey’s views have continued to exert their influence despite many challenges.
Dicey’s ideas went out of fashion for a time, but they have now come back in to favour
particular with senior members of the judiciary.
They are now specifically mentioned in the Constitutional Reform Act 2005.
LORD BINGHAM’S INTERPRETATION
Lord Bingham grappled with the challenge of defining the rule of law by breaking it up
into eight „sub-rules‟.
His discussion of these sub-rules has been one of the most influential modern discussions of
the rule of law.

1) The law must be accessible and so far as possible intelligible, clear and predictable.
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 (as it usually will), and the answer when
given should be sufficiently clear that a course of action can be based on it.

The European Court of Human Rights has also put the point very explicitly:

"… the law must be adequately accessible: the citizen must be able to have an
indication that is adequate in the circumstances of the legal rules applicable to a
given case … a norm cannot be regarded as a 'law' unless it is formulated with
sufficient precision to enable the citizen to regulate his conduct: he must be able - if
need be with appropriate advice - to foresee, to a degree that is reasonable in the
circumstances, the consequences which a given action may entail."

2) Questions of legal right and liability should ordinarily be resolved by application of

the law and not the exercise of discretion.

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

In criminal law, children and those without mental capacity are treated differently in
terms of procedures for investigation, trial as well as sentencing.
Children under 10 are considered as doli incapax - legally incapable of committing a
crime.

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.

The remedy of judicial review is available to challenge the actions of ministers (including
their role in creating secondary legislation) and other public bodies where they have acted
outside the powers which were given to them (usually by an Act of Parliament), or acted
unfairly or unreasonably. Decision making can be challenged if there is bias or
individuals are not given the right to a fair hearing.

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

The incorporation of the ECHR into UK law by the Human Rights Act 1998
(HRA) has had major implications for the protection of individual rights

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

Although alternative dispute resolution (ADR) is increasingly popular and encouraged

by government, handling civil court cases is still a core function of the legal system.
In R V Lord Chancellor, ex p Witham [1998] an applicant in receipt of state benefits
successfully challenged, by way of judicial review, an order made by the Lord
Chancellor increasing the costs of writs (claim forms).

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.

JEHAN SAMARASINGHE
SCHOLARS GUILD