The Rule of Law
Introduction:
The principle of the ROL can be traced back to
the writings of philosophers in ancient Rome and
Greece. For example, the maxim, 'the ROL is
preferable to that of an individual', has been
attributed to the Greek philosopher Aristotle.
Note: The notion of the ROL holds that the law
is above the whims of any individual. For instance
'be you ever so high, the law is above the you'.
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Meaning of the ROL.
The ROL is both a part of legal and political
theory. In a broader sense, it means that people
should obey the law and be ruled by it. In legal
theory, it is read in a narrower sense i.e., that the
government should be ruled by law and be subject
to it for example government by law and not by
men.
Note: The ROL is the principle that those
exercising a governmental function should be
subject to legal controls.
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Does the doctrine of the ROL exist in the UK?
Though the UK has no written constitution or a
clear SOP's, it has had a lengthy history of
constitutional development. Whilst the ROL is not
unique to the British constitution, it is very
important feature of it.
The Rule of Law
How does the doctrine function in the UK?
* Need for a strong justification for such law to
withstand the ROL's moral structure though
parliamentary supremacy prevails.
* In interpreting the scope of statutory power, the
courts make the implication that Parliament
intended to conform to the ROL e.g. Ambiguous
statutes.
* The ROL is applied through JR of actions &
decisions of all officials performing public
functions.
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What are the conceptions of the ROL?
Aristole argued that government by laws was
superior to government by men i.e., the ROL is
preferable to that of any individual.
Joseph Raz- the ROL is a political ideal which a
legal system may possess to a greater or lesser
degree. (It represents a state of mind which ought
to regulate official action)
Prof AV Dicey three postulates on the ROL.
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Dicey's principles/descriptions of the ROL:
* No one should be punished except for a distinct
breach of law, established in the ordinary legal was
in the normal courts/ No punishment may be
inflicted other than for the breach of the law.
* No one is above the law. Everyone is subject to
the jurisdiction of the ordinary courts. 'Equality
before the law'.
* Constitutional law is 'judge made law'.
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Implications of Dicey's first postulate:
*It requires that no one be punished except for a
conduct which represents a clear breach of law.
*Decisions made by those in authority must be
made in accordance with law (supremacy of the
law)- See the case of Entick v Carrington
*Individuals should not be subject to wide
discretionary powers- See the case of Wadington v
Miah
*Govt of the day must also respect the law
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Implications of Dicey's second postulate:
*All govt & public officials are accountable to law
i.e., the govt itself is subject to law.
*Principle of equality before the law is part & parcel
of the UK's unwritten constitution e.g some UK
statutes aim to ensure equality for groups who
might otherwise be discriminated against.
*The operation of the doctrine of JR. (See the case
of GCHQ)
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Implication (s) of Dicey's third postulate:
*Courts have an important role to fulfill i.e., that
when they construe the words of a statute, they
should restrict the meaning of that statute as far as
possible so that it does not unduly ingringe upon
citizens rights (viewed shared by TRS Allan)
*The effect of the Human Rights Act 1998. (See
sec 4 of the Act)
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Case law in support of Dicey's third postulate:
* Entick v Carrington- the Ct held that the arrest of
Entick, seizure of his books & papers was
unlawful, as the Secretary of State had no power
to issue such a general warrant.
* Ghani v Jones- it was held that the police had no
power to retain a person's person unless they had
grounds for arresting him...
* Congreve v Home Office- COA held that such a
threat, if carried out, would be unlawful.
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Case law in support of Dicey's third postulate:
*R v Hull Prison Board of Visitors, ex parte St
Germain- it was held that the “...Cts are in general
the ultimate custodians of the rights and liberties of
the subject whatever his status”.
*Conway v Rimmer- the HOL's decided that in
England, while the cts may give full weight to any
claims made by a Minister of the Crown, they had
the power to overrule such decisions when the
public interest in the adminstration of justice
outweighed the public interest in non-disclosure.
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Case law in support of Dicey's third postulate:
*In re M- the HOL's ruled that while an injunction
could not be issued against the Crown (b'se of the
principle that the Crown can do no wrong) it could
be issued against the executive & person
representing the Crown.
*Mandla v Dowell Lee- the HOL's held that the
rules were discriminatory...
*R v Secretary of State for the Home Department
ex parte Fire Brigades' Union.
*R (L & Anor) v Secretary of State for the Home
Department, LC's Department, Intrested Party
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Case law against Dicey's third postulate:
*Malone v Metropolitan Commissioner of Policethe Ct held that no right to privacy existed in
English law, and the ct was not prepared to
establish a precedent which would create such a
right.
* R v Sang- the HOL's held that where a defendant
had been incited to an offence of forgery by an
“agent provocatuer”, the Ct should not refuse to
admit relevant admissible evid on the ground that it
was obtained by unfair or improper mean.
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Case law against Dicey's third postulate:
*R v Inland Revenue Commissioners, ex parte
Rossminster Ltd- the HOL's held that the warrant
accorded sufficiently with the provisions of the
legislation under which it has been issed. The Cts
had no right to impede the working of the
legislation.
* Liversidge v Anderson- the HOL's held that the Ct
could not inquire into the grounds for detention, as
long as there was no evid to suggest that he had
acted other than in gd faith.
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Criticisms of the three postulates formulated by
Dicey:
*The first postulate- difficult to distinguish btn
regular law & arbitrary power/irregular law. For
example, laws on compulsory acquisition of land,
powers given to a police constable under sec 24(7)
of the Police & Criminal Evid Act 1984.
*The second postulate- modern statutes have
conferred wide powers on officials.
*The third postulate- common law is subject to
modification by Parliament. Also, ind of the
judiciary is questionable.
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Defences in support of Dicey's three postulates:
* The first postulate- he did not rule out
discretionary powers. He was against the use od
wide discretionary powers. He also emphasised on
the role of the Cts while interpreting statutes.
* The second postulate- the central thrust of
Dicey's principle is that those with powers are
accountable to law (equality before the Cts).
*The third postulate-Dicey's message is not just
about how the judges do their work, but this is how
they should do their work. (See also the
Settlement Act 1700)
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Conclusion:
The ROL as a doctrine, need a clear
understanding and appreciation so that one would
be able to see its usefulness as a standard of
comparison or a yardstick by which to measure the
justification or legitimacy of a legal system.