The Explanations Of The Rule Of Law

The rule of law is a term often invoked by politicians, judges, and academics, but the definition is far from certain. The lack of clearly discernible meaning is problematic, as it has been said to underpin the organisation of the state. The constitutional reform act 2005 formally recognises the importance of the rule of law (s.1).

Dicey saw the rule of law as embodying three concepts: no person should be punished except for a distinct breach of the law; no person is above the law, and constitutional principles are established in the common courts. To assess the relevance of the rule of law in the modern constitution, these are a useful starting point for analysis, however it must be remembered that there are alternative definitions that could be considered.

Dicey’s first rule can be interpreted as expressing a need for protection from arbitrary exercises of power. Entick v Carrington (1765) 2 Wils 275 articulated this principle of legality by holding that, in the absence of statutory or common-law authority, entry to a citizen’s home was unlawful. It is worth noting that the requirement for legality as part of the rule of law does not necessarily mean that the judiciary will be concerned with the fairness of a particular provision. IRC v Rossminster [1980] AC 952 required the courts to consider powers of search and seizure that were, in the view of Lord Scarman, a ‘breath-taking’ interference with privacy and property. As lawful authority existed, the principle of legality was satisfied. Dicey was critical of the use of discretionary authority and would undoubtedly be disturbed by the rang of discretionary powers now afforded to the executive – for example, in the administration of the welfare state. It is important to remember that he wrote at a time where functions of the government were few. This cannot be said to be the case in the complex society we now inhabit, where the job of the administration would be impossible were it not for the exercise of discretion. A modern explanation of this part of the principle of the rule of law would, perhaps, require not the absence of discretionary powers but rather a robust system to regulate the exercise of discretion. Therefore, judicial review of executive action can be viewed as central to the rule of law. Attempts to exclude the court’s power of review have been rejected by the judiciary; in R (Cart) v Upper Tribunal; R (U and XC v Special Immigration Appeals Commission [2009] EWHC 3052 it was held that judicial review was available, and, further, is a ‘principle engine of the rule of law.’

The notion that ‘no man is above the law’ seems straightforward. Dicey cited Entick v Carrington as support for this proposition, declaring it to be one of many instances where government officials were called to account. M v Home Office [1994] 1 AC 377 is an example of government ministers being held in contempt of court after ignoring a court order. This would seem to suggest the truth of Dicey’s statement. There are, though, examples of classes of persons who are not subject to the law in the same way, such as those enjoying diplomatic immunity or MPs protected from defamation in parliament.

Part IV of the Anti-Terrorism, Crime and Security act 2001 attempted to create a law to which only one class of persons – foreign nationals – would be subject to. The court’s opposition (A v Secretary of State for the Home Department [2004] UKHL 56) can be used to support the argument that the judiciary plays an important role in preserving the rule of law. Arguably, this aspect of the principle also implies that there must be equal access to the courts. In certain circumstances, it has been held that Article 6 of the European Convention on Human Rights requires that the state should fund legal representation in order to ensure that litigants in proceedings are equal (Steel and Morris v UK [2005] 41 EHRR 22).

The final element of Dicey’s conception of the rule of law expresses his belief that the common law was capable of protecting individual rights, obviating the need for a written constitution. The Human Rights act 1998 incorporates the rights under the European Convention on Human Rights into domestic law, and therefore, arguably the role of the courts is diminished.

There have been many other explanations of the rule of law. Craig (1997) argues that there are two main schools of thought. One approach is the formal conception of the rule of law, which is concerned with the process of law making, and simply demands that laws are made according to an open clear process, and that obligations imposed by the law are prospective and clear. The rule of law on this definition, is not concerned with the content of those laws. A substantive conception of the rule of law suggests that the law embodies rights, and that distinctions can be drawn between good and bad laws. Raz (1979) notes that there are numerous definitions of the rule of law but rejects efforts to imbue the doctrine with a moral ideology. He argues that some features are required including the requirement for clear, prospective laws, an independent judiciary, and review powers being available to the courts. Even when this simplified definition is adopted, there are still some problems in asserting that the modern constitution unambiguously relies on the rule of law. Examples of retrospective legislation are rare, but can be found. The War and Damages Act 1965 is often cited, but, more recently, the High Court issued a declaration of incompatibility concerning the Jobseekers ( back to work schemes) Act 2013, which has been passed to confer retrospective validity on regulations previously held to be unlawful (R (Reilly) (No 2) v Secretary of State for Work and Pensions [2014] EWHC 2182. Attempts to limit the availability of, and funding for, judicial review (Legal Aid, Sentencing and Punishment of Offenders Act 2013) have attracted comment on the basis that this may have an impact on the rule of law. Nevertheless, if a formal definition is considered, it is easier to argue that the rule of law is the foundation of the UK constitution.

The rule of law is not a precise legal doctrine, and there are aspects of Dicey’s description of its operation that seem less relevant in modern context. If the key elements as suggested in Raz, are accepted as broadly accurate, then it seems clear that the concept remains both relevant and central.