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The rule of law is a term used in British constitutional law to denote that all individuals (including state officials) are under the law. It is a doctrine central to a democracy whereby government power is controlled and legitimised, citizen’s rights are protected, and law rules over anarchy.
Several academic writers and judges have written or spoken about the rule of law in terms of what it means within the English constitution, such as Dicey, Raz, Lord Bingham and Lord Woolf, and given that it is not defined by statute or common law, and especially given that the UK has an uncodified constitution, the doctrine is construed in many different ways and has been the subject of much debate over the past few century’s. For example, Professor Craig speaking in the House of Lords Select Committee on the Constitution in 2007 stated: “A “health warning” is in order for anyone venturing into this area…There is considerable diversity of opinion as to the meaning of the rule of law and the consequences that do and should follow from breach of this concept”[1].
Despite this, Lord Steyn stated in 1999 that the rule of law has two core meanings. Firstly, it denotes the political philosophy of institutional morality that government are not under men but under laws. Secondly, it is a concept of constitutional law that constrains the abuse of public power, it protects citizen’s rights to personal liberties, it guarantees access to justice, and it ensures procedural fairness over administrative decision-making[2].
Whatever is argued or discussed about this constitutional doctrine, the fact of the matter is that the rule of law denotes the fundamental democratic principle that all, including government officials, are under the rule of law and not under the rule of men.
The rule of law as a legal principle means that it is a procedural mechanism which controls and limits the exercise of state power, and requires all actions of state officials to be legitimised by the law. This principle can be seen in practical terms in a number of national and international statutes. For example, s 28 of the Police and Criminal Evidence Act 1984 requires that a police officer making an arrest promptly inform the suspect that he is under arrest. Moreover, Article 5(2) European Convention on Human Rights requires that: ‘Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him’.
One example of the courts upholding a claim of unlawful police (or state) activity was in R (on the application of Jones) v Chief Constable of Cheshire Police[3]. Jones had been issued with a pedlar’s certificate under the Pedlars Act 1871. On suspicion of dishonesty, his certificate was seized by the police. The High Court granted a declaration that the police had no power to seize his certificate as there was no provision within the Pedlars Act to allow this.
The independence of the judiciary has always been seen as a crucial aspect of the British constitution. This is because it is the judiciary which is able to control the acts of state officials, particularly in relation to the relatively new procedure of judicial review. The process of judicial review allows the courts to supervise the acts of the government to ensure its actions are strictly within legal limits.
It should be noted that the rule of law should not be confined to a procedural mechanism. In other words, it is not enough to say that the courts can check the legitimacy of executive actions, because, for example, legitimate laws may confer wide discretionary powers on state officials. For example, in A and others v Secretary of State for the Home Department[4], s 23 of the Anti-terrorism, Crime and Security Act 2001 was successfully challenged on grounds that indefinite detention of terrorist suspects without charge was disproportionate to the aim to be achieved and unduly curtailed the citizen’s right to liberty, and it was discriminatory against non-UK nationals. The Act was procedurally correct but morally unconstitutional, however, primary legislation is subject to Parliamentary Sovereignty so the most the courts could do was issue a declaration of incompatibility under s 4 of the Human Rights Act 1998. However, such a declaration was issued and this led to the repeal of the relevant provisions of the 2001 Act and the implementation of the less draconian Prevention of Terrorism Act 2005. Therefore, the rule of law not only encapsulates the notion that state officials are under the law to the same extent as ordinary citizens, but it also incorporates the notion that laws must make adequate allowance for the fundamental rights and freedom of citizens.
Finally, the rule of law ensures social order because it denotes the principle that all citizens are under the law. Many take the view that, if there was no law to govern behaviour, there would be social anarchy.
Raz was a major exponent of the formal conception of the rule of law[5]. Raz argued that the rule of law is a political ideal which means that individuals should be ruled by the law and the law must be able to guide individuals as to appropriate behaviour. In particular, Raz stated that all laws should be prospective, open and clear.
Firstly, Raz argued that laws should only punish behaviour which was an offence at the time that it was in force, and not punish retrospective behaviour. The rationale behind this is that people do not have any control over their past conduct and, nevertheless, cannot change it. The notion that laws should be prospective was confirmed by Willes J in Phillips v Eyre[6], who stated: “Retrospective laws are, no doubt, prima facie of questionable policy…Accordingly, the Court will not ascribe retrospective force to new laws affecting rights, unless by express words or necessary implication it appears that such was the intention of the legislature”. Furthermore, Article 7 of the European Convention on Human Rights states: ‘No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.’
Secondly, Raz took the view that laws should be open so that individuals can access them and regulate their own behaviour. Inevitably, people will break the law if they are not aware of what the law is.
Finally, Raz argued that laws should be clear and intelligible so that individuals can understand their content. Ambiguous and imprecise laws will inevitably result in confusion and prevent the individual from adhering to it. This view was confirmed by Sir John Donaldson MR in Merkur Island Shipping Corporation v Laughton and others[7], whereby he stated: “…people must understand that it is in their interests as well as in that of the community as a whole, that they should live their lives in accordance with the rules and all the rules. Second, they must know what those rules are. Both are equally important”.
Legislation now contains explanatory notes and an explanatory memorandum to aid interpretation and understanding. Nevertheless, Lord Bingham noted that the length, complexity and prolixity of modern common law judgments can also raise problems[8].
In addition, Raz argued that laws should be stable and not subject to regular alterations. There is an inherent danger that if laws are amended too regularly then people will not be able to keep up with the changes and regulate their behaviour accordingly. Raz also argued that the making of particular laws should be guided by open, stable, clear and general rules. This might be interpreted to mean that Ministers and local authorities should only make secondary legislation within the strict confines of the parent Act. However, Parliament itself must also be accountable in terms of its procedure for enacting laws and stick to established custom and procedure so that there is procedural fairness and transparency in how laws are made, in particular with reference to the fact that legislation is primarily made by elected representatives of the people in the House of Commons and, according to constitutional convention, receives Royal Assent. Note that, in terms of upholding the rule of law, Raz was not so concerned with the substance of law, but with the form of the law.
Despite the view of Raz that adherence to the rule of law was not reliant on the substance of the law itself, many writers and judges have commented that the rule of law does not exist unless it recognises certain fundamental constitutional principles, such as civil liberties and human rights for example. For example, Parliament could pass a law that allows the police to arrest and detain individuals that disagree with economic policies laid down by the elected government. Clearly, this very draconian law would, in any democratic state at least, cause uproar amongst the people. However, if passed via the proper legal channels, i.e. House of Commons, House of Lords and Royal Assent, due to the doctrine of Parliamentary Sovereignty, as a matter of legal theory, it would be completely unchallengeable. Lord Tom Bingham noted that: “A state which savagely represses or persecutes sections of its people cannot 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 is the subject of detailed laws duly enacted and scrupulously observed.”[9] In fact, he specifically disapproved of Raz’s “thin” view of the rule of law in terms of it paying little or no respect to the protection of fundamental civil freedoms and human rights.
One problem with the wider view of the rule of law, i.e. that which incorporates the protection of human rights, is that there is not, and never will be, a universal agreement on what rights ought to be protected by law. For example, there is always a struggle between balancing the rights of the individual against the need to protect society. One example is anti-terrorism legislation, which, over the past decade in particular, has become increasingly stringent since the ever-growing threat of international terrorism by extremist religious groups such as Al-Qaeda and those acting under the Sadam Hussain regime. Many British citizens would not necessarily argue with the notion of lengthy periods of detention without charge for suspected terrorists, but how far does it go before the fundamental right to liberty and security of the person is unnecessary violated and disproportionately infringed?
It should be noted that the notion of the rule of law is not only recognised in the UK, but also overseas. For example, the preamble to the Universal Declaration of Human Rights (1948) states: ‘Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.’ Furthermore, the European Court of Human Rights, in interpreting Convention rights, specifically refers to the concept of the rule of law. By way of example, in Gillan v United Kingdom[10], the European Court of Human Rights held that the wide discretionary stop and search powers contained in the Terrorism Act 2000 violated Article 8 of the European Convention on Human Rights. In referring to the rule of law, it was held: “In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of unfettered power…”
The rule of law assumes particular importance in the United Kingdom because it has no codified constitution defining the limitations on state power. Jowell noted that a Bill of Rights typically disables the government from abusing its power, but in a country which lacks a codified constitutional document, the rule of law essentially performs a similar disabling function. Therefore, in the United Kingdom, the rule of law denotes the fundamental principle that the government is under the law and, as such, serves to prevent an abuse of state power.
In the United Kingdom, the rule of law is typically associated with the writings of Dicey, who explained the concept in his book entitled ‘Introduction to the study of the law of the Constitution’. Dicey highlighted three aspects to the rule of law:
(1) An individual would only be punished for a distinct breach of the law, hence a predominance of regular law over arbitrary power.
(2) Equality under the law.
(3) The principles of the Constitution are the result of the ordinary law of the land.
Dicey’s first aspect can be broken down into two distinct elements – (i) an individual is only punished for a breach of the law; and (ii) the predominance of regular law. In relation to the first element, Dicey argued that an individual can only be punished if he was lawfully convicted in ordinary proceedings before an ordinary court of law. In other words, no individual is at the whim of state officials. In relation to the second element, Dicey argued that the regular law is predominant over the exercise of discretionary arbitrary power. This is because the regular law has a clear foundation and origin and can be controlled. Furthermore, the exercise of state power is only legitimate if it is done in accordance with regular law, and the exercise of any discretionary power is not only contrary to the rule of law but is unlawful per se. In particular, Dicey asserted: “wherever there is discretion there is room for arbitrariness”. Moreover, because discretionary power lacks clear authority and limitations, it is not able to be challenged on the basis of lawfulness, and consequently this means that there is little room for redress for the aggrieved individual. Lord Bingham stated: “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”[11].
In relation to Dicey’s first aspect (in particular element 1), it is worth noting the following exceptions which mean that a person may actually “suffer in body and in goods” without having violated a law as determined by an ordinary court of law. Firstly, under the Bail Act 1976, a person can be remanded in custody pending trial before conviction. There are public policy reasons for this power, and it is rare for a person to be denied bail, unless (inter alia) it is reasonably believed that the defendant will abscond, commit an offence whilst on bail or interfere with witnesses or otherwise obstruct the course of justice. Secondly, under the Police and Criminal Evidence Act 1984, s 1, the police may stop and search individuals or vehicles for stolen or prohibited articles provided the officer has reasonable grounds for believing that such articles may be found. The person may effectively be ‘detained’ whilst the search is conducted (at least in the sense that his freedom of movement and personal liberty is infringed). Even if nothing is found, the search is not rendered unlawful provided the officer had objective reasonable grounds for conducting the search in the first place. Finally, following the “9/11” attacks and the London “July bombings”, there has been a growth in anti-terrorism legislation over the past ten years to combat the increasing threat of international terrorism, but this has since caused some level of controversy in light of human rights law and, in particular, people’s right to liberty and security of the person. In A and others v Secretary of State for the Home Department[12], the claimants were detained under the Anti-terrorism, Crime and Security Act 2001, s 23, indefinitely and without trial, on grounds of suspected international terrorism. These detainees could not be charged as the evidence might compromise intelligence services, and they could not be deported as there was a real risk of torture and inhuman and degrading treatment if they had returned to their home country. Consequently, the suspects were detained indefinitely and without trial under the 2001 Act. Under Article 5 of the European Convention on Human Rights, deportation of individuals must be pursued with due diligence[13], so the government made the Human Rights Act 1998 (Designated Derogation) Order in respect of Article 5. The House of Lords held that s 23 of the 2001 Act was incompatible with Article 5 and Article 14 of the European Convention (right to liberty and prohibition against discrimination), and the derogation order made by the government was quashed as it was considered disproportionate and discriminatory. Lord Nicholls stated: “Indefinite imprisonment without charge or trial is an anathema in any country which observes the rule of law”. Following this case, the 2001 Act was declared incompatible with the European Convention on Human Rights, and the government superseded it with the less draconian Prevention of Terrorism Act 2005. Also, on a smaller scale, local authorities have powers to compulsorily purchase land to make, for example, roads and permitted developments. In this context, the individual concerned will suffer in goods despite not having breached the law.
The main criticism in relation to the second element of Dicey’s first aspect of the rule of law in the British constitution is that wide discretionary powers are in fact conferred on other individuals or bodies, namely the executive.
One example is provided for in Inland Revenue Commissioners and Another v Rossminster Ltd and others[14]. Section 20C of the Taxes Management Act 1970 allowed a senior officer of the Inland Revenue to obtain a warrant of search and seizure in relation to suspected tax fraud. Revenues officers obtained such a warrant and searched the premises of Rossminsters Ltd, but this was argued by way of judicial review as the company had not been informed of the specific offences suspected, or the person suspected of committing them. The Court of Appeal quashed the warrant, and Lord Denning MR held that the legislation is so widely drawn that it is an instrument of oppression. However, on appeal to the House of Lords, the decision was reversed on grounds that, notwithstanding that the powers granted by the 1970 Act conferred an extremely wide discretionary power on the executive, the revenues officers had in fact complied with the law. Nevertheless, Lord Scarman stated (obiter) that the provision represented “a breath-taking inroad upon the individual’s right of privacy and right of property”.
In addition to legislation granting wide discretionary powers to Ministers and civil servants, Acts of Parliament often confer law-making power on Ministers and local authorities in the guise of Statutory Instruments and byelaws. However, unlike primary legislation (which is subject to the doctrine of Parliamentary Sovereignty), there is judicial control on secondary legislation by way of judicial review proceedings. In Commissioners of Customs and Excise v Cure & Deeley Ltd[15], the Queen’s Bench Division held that Regulations made under section 33 of the Finance (No 2) Act 1940 were ‘ultra vires’ as they went beyond the jurisdiction conferred by the parent Act, in that they ousted the jurisdiction of the courts to adjudicate on the amount of tax due where a person either failed to submit a tax return or submitted one that was incomplete. Sachs J noted: “In the result this attempt to substitute in one segment of the taxpayer’s affairs the rule of tax collectors for the rule of law fails”.
The Terrorism Bill submitted in 2005 by the Labour government initially contained a clause to the effect that the police could detain suspected terrorists for up to a maximum of 90 days without charge. This clause of the Bill was defeated at the Report Stage in the House of Commons on grounds that the 90 day detention period was excessive, arbitrary and contrary to the traditions of the rule of law. MP’s voted instead for a maximum period of 28 days detention without charge.
Arguments for discretionary powers include the fact that, in modern day society, it is necessary for state officials to have a hand in making laws and exercising certain powers for practical purposes. Quite simple, Parliament could not be in a position to enact a law for every type of scenario at every event required. Moreover, the government and civil servants and, on a local level, local authorities, are in a far better position to be aware of the pressing social and economic needs and address them in the guise of secondary legislation, which may be passed far quicker than Acts of Parliament and without the need for Parliament to be in session. One example is the law around welfare benefits. Statutory Instruments often mitigate the harsh effect of Acts of Parliament in relation to the administration of state welfare, and define the exact scope of how benefits are distributed and administered in practical terms.
Despite the many arguments against executive discretionary powers, these are controlled to a large extent by the process of judicial review. More importantly, the courts always make certain presumptions which assist the application of the rule of law where wide discretionary powers are conferred on government ministers and/or civil servants/local authorities. For example, it is presumed that Parliament envisaged that the Minister etc. exercising the power conferred by statute used it (i) legally; (ii) rationally; (iii) in a procedurally fair manner; and (iv) consistent with the rights enshrined in the European Convention on Human Rights. In fact, Lord Bingham stated: “There is no truth, no such thing as an unfettered discretion, judicial or official, and that is what the rule of law requires”[16].
Though Dicey often disapproved of wide discretionary power, arguably it is necessary and unavoidable in today’s modern and complex society. Furthermore, the relatively modern process of judicial review controls the use of executive power. Not only that, but the European Court of Human Rights has a say when legislation appears to infringe on personal civil rights[17].
Dicey argued that all individuals, including private citizens and state officials, are under the same ordinary law, and the law would be applied equally in the ordinary courts. This may be interpreted to mean that state officials do not, by mere reason of their standing in society, enjoy any more immunity from the law than private individuals, nor are they given any special protection from the consequences of breaching the law.
Many writers believe that Dicey was also specifically criticising the French legal system, which had a special court for dealing with breaches of government jurisdiction; namely the Counseil d’Etat (the Administrative Court of France). Dicey argued that the English Constitution should avoid such a distinction, and avoid a system of administrative tribunals (such as Employment Tribunals and State Welfare Tribunals, for example) as they are not “ordinary courts”.
One example where state officials may be held to account for breaches of the ordinary law, in the same way as private individuals, is under s 41 of the Police and Criminal Evidence Act 1984, which requires that suspects be detained for no longer than 24 hours without charge (subject to permitted extension of time), and if the police unlawfully exceed this time limit they may be liable in tort for false imprisonment and sued in the same way as a private citizen. An example was provided in M v Home Office[18], whereby M, a refugee from Zaire, was denied asylum in the UK. The Secretary of State for the Home Department sought to remove M from the country but M applied for judicial review of the decision. The Administrative Court was led to believe, by counsel for the Secretary of State, that M would not be deported until a decision had been made. Nevertheless, M was removed pending the hearing. Later that day, the judge issued a ‘without notice’ order requiring the Home Secretary to have M returned to the UK. The Secretary of State unsuccessfully challenged this order on the basis that the judge had no jurisdiction to make it. The House of Lords held that the judge did have authority to make the order, and a non-compliance would result in the same consequences to a government minister as a private individual (i.e. contempt of court).
A more historic example of Dicey’s second aspect is in Entick v Carrington[19], whereby the Secretary of State issued a search warrant at the behest of the King to search Entick’s property for evidence of seditious libel. Entick, however, successfully sued the messenger’s in tort for trespass as the search had no legal basis or authority. This case is a perfect example of how the courts curtail excessive and unlawful exercise of government power.
Whilst Dicey argued that any breach of the law, whether by an individual or state official, must be dealt with by an ordinary court, the UK has, over the past few decades, followed the French system with the creation of an Administrative division of the High Court, which hears judicial review cases[20]. There is no right, per se, to seek judicial review, it must be granted with leave of the High Court, a claimant must file a claim within 3 months of the relevant breach of law, the defendant must be an executive body, the claim must be founded on a public law issue, the remedies are discretionary (not mandatory), judicial review proceedings are heard by specialist judges, and the judges specifically apply public law principles.
Aside from judicial review, another criticism of Dicey’s second aspect is that many disputes, whether between private individuals/bodies and other private individuals/bodies, or private citizens and the state, are not heard in ordinary courts but tribunals (such as employment cases and immigration cases, for example).
Finally, Dicey’s view that all are equal under the law was rather grand and noble, but not so realistic. For example, many immunities for state officials do exist in the following forms:
- Freedom of speech in Parliament[21];
- Diplomatic immunity[22];
- Sovereign/state immunity[23];
- Judges of superior courts are not liable for anything said whilst carrying out their judicial function[24];
- For public policy reasons, certain classes of citizens are treated differently[25]; and
- State officials have more powers (both legislative and discretionary) than private citizens[26].
In relation to Dicey’s third aspect, he argued that the British constitution was derived from decisions of the courts (i.e. common law), and, in essence, challenged the backbone that a codified constitution has in terms of enforcing the rights of the citizen. In other words, for Dicey, the practical remedies granted by the courts were better than the theoretical remedies laid down in a codified constitutional document (such as a Bill of Rights).
The House of Lords produced the sixth report of session in 2006-2007 stating: ‘[Dicey] felt that in the UK, where individual rights were the result of numerous judicial decisions indicating when the individual was at liberty to speak freely etc, it would be considerably more difficult for an authoritarian regime to sweep these rights aside’[27].
It is true that the courts have fashioned a number of common law remedies for the individual, including: (i) trespass to the person; (ii) trespass to land; (iii) trespass to property; (iv) false imprisonment; (v) assault; and (vi) battery. However, in Malone v Metropolitan Police Commissioner[28], Viscount Megarry stated that: “No new right in the law, fully-ledged with all the appropriate safeguards, can spring from the head of a judge deciding a particular case: only Parliament can create such a right”. Malone argued that his phone had been unlawfully tapped by the police. The court, however, refused to uphold his claim on the basis that there was no law to make the actions of the police unlawful. Sir Robert Megarry VC was of the opinion, contrary to the views of Dicey, that the judiciary is not tasked with creating such rights for the individual – that is the role of Parliament. Perhaps this case marked a change in how the judiciary approached cases involving rights and liberties, and questioned whether the courts were prepared to create new rights for British citizens that have not been specifically catered for by the legislature.
Furthermore, though Parliament can (at least in legal theory) create any law it chooses and so legislate to create personal liberties for the individual, it may also create laws that infringe on the liberty of the individual[29], and the courts are subsequently rendered powerless to protect those rights due to the doctrine of Parliamentary Sovereignty[30].
Another way to put it is that Parliament can simply legislate to override the decisions of the courts, whether the legislation in question is considered morally unconstitutional or not, and whether or not the decision of the court in question created a fundamental liberty for the citizen. One example is the War Damage Act 1965. In Burmah Oil Co Ltd v Lord Advocate[31], the House of Lords held that deliberate and strategic damage caused by British troops during the Second World War to oil installations owned by Burmah Oil was lawful under the royal prerogative, but the claimant company should be compensated by the government. The result of the decision meant that a substantial payment of public money would be allocated to compensating victims of war damage caused as a result of British strategic military operations. As a result, Parliament enacted the War Damage Act 1965 to explicitly reverse the decision in [1965] AC 75[32].
Despite the overriding principle of Parliamentary Sovereignty, Dicey was of the view that, as the UK has a fully elected chamber of Parliament, the power of the electorate to elect any government it chooses prevents the legislature from enacting draconian laws which are clearly morally unconstitutional and contrary to fundamental human rights. Furthermore, since the enactment of the Human Rights Act 1998, the state (not including the legislature) must act in accordance with the principles enshrined in the European Convention on Human Rights. Moreover, the judiciary is explicitly tasked with interpreting all domestic legislation, so far as possible, in accordance with the rights laid down in the Convention[33], and, since October 2000, individuals now have a remedy in domestic courts to so-called human rights arguments. Although the creation of this Act of Parliament might appear contrary to Dicey’s third aspect, the enforcement of the rights enshrined within the Convention is still in the hands of the judiciary. So common law does, in fact, still protect the rights of the individual (although it is arguable whether new rights are created at common law anymore).
Arguably, it has always been the duty of the judiciary to enforce the rule of law, mainly in the way that it curtails excessive state control and provides a remedy to aggrieved individuals that have suffered at the hands of an oppressive or arbitrary state regime. In the case of Entick v Carrington[34], Lord Camden CJ made it clear that: “This power, so claimed by the Secretary of State, is not supported by one single citation from any law book extant…According to this reasoning, it is now incumbent upon the defendants to shew the law, by which this seizure is warranted. If that cannot be done, it is a trespass.”
In fact, Entick clearly demonstrates all three of Dicey’s principles: (i) the state exercised a power which had no legal origin; (ii) the state was accordingly held to account in an ordinary court; and (iii) the ordinary courts provided a remedy for Entick for unlawful trespass by state officials.
In R v Secretary of State for the Home Department, ex parte Fire Brigades Union[35], the Criminal Justice Act 1988 codified the Criminal Injuries Compensation Scheme established under the royal prerogative. In 1993 the government issued a white paper indicating that the scheme under the 1988 Act would be scrapped and a tariff scheme would replace it under the royal prerogative. Trade Unions for the applicants sought judicial review of the decision to scrap the statutory scheme. Consequently, the High Court held that, whilst the Secretary of State had discretion when to bring the provisions into effect, he did not have the authority to decide whether or not to bring them into effect at all. Lord Browne-Wilkinson stated: “In my judgment [the Secretary of State] cannot lawfully surrender or release the power contained in section 171(1) so as to purport to exclude its future exercise either by himself or by his successors”.
By way of further example, in R v Horseferry Road Magistrates’ Court, ex parte Bennett[36], Bennett sought judicial review of the decision of the Magistrates’ Court to refuse an adjournment of committal proceedings to the Crown Court on the basis that he was kidnapped in South Africa and brought to the UK to face criminal charges in violation of proper extradition proceedings. The High Court refused leave for judicial review. The House of Lords held that the courts must have cognisance of the circumstances surrounding the defendant’s appearance before court, as the proceedings could be stayed as an abuse of process if it were found that the state had disregarded extradition proceedings. Lord Griffiths stated: “The judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.” It should be noted that the judiciary has not always been willing to interfere with executive decisions in order to maintain an effective separation of powers. One classic example was in Liversidge v Anderson[37] whereby the Secretary of State could make an order under Regulation 18B of the Defence (General) Regulations 1939 to detain a person if he had reasonable cause to believe that a person was of hostile origin or associations. The court held that it could not question the discretion of a Minister under powers granted under emergency legislation such as this, it was a matter for the government who would ultimately be accountable to Parliament. However, Lord Atkin stated: “I protest, even if I do it alone, against a strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister”.
Despite that, following the landmark case of A and others v Secretary of State for the Home Department[38], and the subsequent alternative arrangements made by the Prevention of Terrorism Act 2005, the provisions restricting movement of suspected terrorists under the 2005 Act were subject to successful challenge in Secretary of State for the Home Department v JJ and Others[39]. Furthermore, in Secretary of State for the Home Department v AF[40], the House of Lords held that where a non-derogating control order was made under s 2 of the Prevention of Terrorism Act 2005, the minister had to give sufficient information to the individual about the nature of the case and allegations against him to ensure that the order was compliant with Article 6 of the European Convention on Human Rights.
Ultimately, it is the courts which uphold the rule of law in practical terms, and, as Lord Woolf stated: “…it is the rule of law which stops a democracy descending into an elected dictatorship”[41].
[1] Professor Craig, Sixth Report of Session 2006-07 of the House of Lords Select Committee on the Constitution, Relations between the executive, the judiciary and parliament (HL Paper 151 (2007) Appendix 5, p. 97.
[2] Lord Steyn, The Constitutionalisation of Public Law (The Constitution Unit, 1999), p. 4.
[3] [2005] EWHC 2457 (Admin).
[4] [2004] UKHL 56.
[5] J Raz, ‘The Rule of Law and its Virtue’ [1977] 93 LQR 195.
[6] (1870-71) LR 6 QB 1.
[7] [1983] 2 AC 570.
[8] Tom Bingham, ‘The Rule of Law’ [2007] 66 CLJ 67.
[9] Tom Bingham, ‘The Rule of Law’, pg. 67.
[10] (2010) (Application No 4158/05).
[11] Lord Tom Bingham, ‘The Rule of Law’ [2007] 66 CLJ 67.
[12] [2004] UKHL 56.
[13] Chahal v United Kingdom (1997) 23 EHRR 413.
[14] [1980] AC 952.
[15] [1962] 1 QB 340.
[16] Tom Bingham – The Rule of Law [2007] 66 CLJ 67.
[17] As in Gillan v United Kingdom (2010) (App No 4158/05), where the European Court held that the wide discretionary stop and search powers under ss.44 and 45 of the Terrorism Act 2000 infringed Article 8 of the European Convention on Human Rights (right to privacy). Furthermore, the Human Rights Act 1998, s 3, requires that domestic courts interpret all legislation, so far as is possible, in accordance with the rights enshrined in the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (insofar as the UK has adopted the Convention rights as set out in Schedule 1 to the Act, and has not derogated from the same during a time of state emergency).
[18] [1994] 1 AC 377
[19] (1765) 19 St Tr 1030
[20] The process by which the courts review the legality of executive actions.
[21] Bill of Rights (1689), Article 9.
[22] Diplomatic Privileges Act 1964, s 2(1).
[23] State Immunity Act 1978, s 20 – although the Crown Proceedings Act 1947 allows state officials to be sued as a private law of right.
[24] Anderson v Gorries [1895] 1 QB 668.
[25] Such as employers and employees and married couples and cohabiting partners, for example.
[26] For example, note Malone v Metropolitan Police Commissioner [1979] Ch 344, whereby the court held that the tapping of the claimant’s phone was not illegal as there was no law to make it unlawful. Viscount Megarry stated: “England…is a country where everything is permitted except what is expressly forbidden”. It should be noted that there are judicial controls on the exercise of state power, and police powers are often granted with a view to protecting private citizens.
[27] Sixth Report of Session 2006-07, Relations between the executive, the judiciary and the Parliament, HL Paper 151 (2007), Appendix 5, pg 98.
[28] [1979] Ch 344.
[29] Such as the Anti-terrorism, Crime and Security Act 2001 (see A v Secretary of State for the Home Department [2004] UKHL 56).
[30] Note the decision of Lord Scarman in Inland Revenue Commissioners and Another v Rossminster Ltd and others [1980] AC 952. However, the power of the courts to make a ‘declaration of incompatibility’ under s 4 of the Human Rights Act 1998 in respect of existing legislation that is incompatible with the rights protected under the European Convention must now be considered, although this does not render any offending primary legislation invalid.
[31] [1965] AC 75.
[32] see War Damage Act 1965, s 1(1).
[33] Human Rights Act 1998, s 3.
[34] (1765) 19 St Tr 1030.
[35] [1995] 2 All ER 244.
[36] [1994] 1 AC 42.
[37] [1942] AC 206.
[38] [2004] UKHL 56.
[39] [2007] UKHL 45.
[40] [2009] UKHL 28.
[41] Lord Woolf, ‘The rule of law and a change in the constitution’ [2004] 63 CLJ 317.
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