2018 Public Law Zone B, Rule of Law

Consider the claim that the rule of law is the ultimate controlling factor on
which the UK constitution is based, and that the courts have a part to play in
defining the limits of Parliament’s legislative sovereignty.

Answer: The rule of law is a broad principle that requires the government to be subject to clear
and stable statements of the law that are generally applicable hopefully not retrospective but
prospective and ‘just’. The structure of the analysis will be as follows: we will examine first the
formative/procedural structure of the Rule of Law, and views propounded by various academics.
Then we will look at the substantive/liberal meaning of the Rule of Law and views propounded
by various academics and its evolution from the ‘Magna Carta’ to the modern era. Finally we
will consider the claim that the Rule of Law is the ultimate authority on the UK constitution and
how the UK judiciary have a role to play in deciding the content/substantive and formative/sole
implementation of the law in defining the legislators sovereignty by not only analyzing theories
of academics but case laws and how they effect, subjects under the Rule of Law. These cases
will be as follows: Entick v Carrington, Burmah Oil, Jackson, Pinochet, Belmarsh, Corner
House Research, M v Home Office, Fewings, and the Constitution Act 2005.
The Rule of Law has been in promulgation since antiquity as far back as Aristotle
(384-322 B.C), and one could argue is no new political theory or instrument in a politeia or
social system in a city state (polis). Aristotle commented from Greek democracy that, ‘Rule of
Law is better than that of any individual.’ For Aristotle knew plain arbitrary governance of a
state might lead to injustice, Socrates in a substantive manner defined ‘just’ as the government
having a positive obligation to look after the welfare of its people but also maintains a formative
view “subjects must act according to the laws they make for that is what ‘right’ is”. The semi
modern view of A.V. Dicey (1885) puts it that the use of Rule of Law is protection against
arbitrary government, and to add Dicey saw what happened in the Bastille as arbitrary, which
had an impact on Dicey. In the 21st. century we can see examples in some developing countries,
how basic human rights can be trifled with for not being subject to true Rule of Law(2019
investigations in Bangladesh by the U.N). Another aspect of Rule of Law that law ought to be
supreme which Dicey stated in ‘Law of the Constitution’ is that law must be obeyed (by all) and
law must guide the ‘behavior’ of its subjects akin to what was said by Plato: ‘political and social
harmony cannot be achieved without psychological unity and harmony in each citizen.’ The rule
of law was historically marked, by the legendary ‘Magna Carta’ signed by King John and later
by the comments made by Bracton J during the reign of King Henry III, the son of King John,
Bracton J said ‘law makes him King.’ Modern scholars like Dicey and Jennings, Unger,
Dworkins, Lord Bingham have elaborated.
Strict formal conceptions of Rule of Law (ROL) does not look at content of the law (good or bad
law), provided the precepts of ROL are met and laws go through ordinary legal process and
ordinary courts. The law of equity based on the Kings mercy or conscious could be an example
of the antithesis of a formal conception and plays into the substantive law conception which seek
to go beyond formal law and distinguish what is ‘just’ or ‘moral’ and is against retrospective law
2018 Public Law Zone B, Rule of Law

other than if it is to the benefit on the public interest. A balance ought to be struck, for too formal
and it may lead to unjust laws and inequality and too substantive it may lack consistency as
judges will interpret whichever way and have too much discretion which will go against ROL
and may be watered down to legal and political theory as Bingham in his 8 sub rules elaborates.
Raz a proponent of the precept for formal conception includes impartiality of Judiciary and its
importance to good ROL. One of the main figures in the ROL discussion is Dicey and ‘Dicey’s
three limbs.’
1) “No man is punishable…except…in the ordinary legal manner before the ordinary courts
of the land...for a breach of law.” It seems that Dicey’s first maxim is formalistic, he
suggests that guilt be established under procedures of the law and not it’s content.
Meaning one must be in breach of the law to be punishable. Prohibition of an act made
prohibited by government and that act done by a citizen or government shall be a breach
of law.
2) “Irrespective of the rank and status all are equal before the law” a formal view can be
taken even though Dicey is against over discretion of judges as it becomes too
substantive. Following the interpretation of the first limb that the law is the law, and the
second limb, all will be subject to it equally to the ordinary courts the view could mean
formal conception. This also goes on to mean that government and its officials should not
have any special exceptions or prerogative from the law.
3) “Rights and Freedoms are best protected under common law” the third limb has
individual rights such as freedom of speech and fundamental human rights. This limb can
be confusing as this deceptively imbues substantiality in Dicey’s concept who is known
as a formalist. Thinking not of substantive rights as it can be repealed such as the Bill of
Rights, Dicey thought about procedural rights of freedom of speech and expression in
ordinary courts where free speech ought to be present at the time of making common law,
and in court. This view maybe more sequential as the first two limbs are formalistic and
the third to follow ought to be the same. However, if taken substantively it implies that
certain individual rights are demanded in a society for ROL to work and these rights
come as a package.
Formal conception does not care if the law is retrospective or prospective or its content, what
Dicey saw in the Bastille he saw as arbitrary and said English law at least was subject to
ROL ‘just’ or not. The previous sentence beseeched of the formal precept that it creates
inequality amongst classes. Unger says it might. He argues that the precept of ROL in theory
should be impartial from power, but ultimately, in reality even if the rules are general it
would in a way reflect the power of the dominant class which hold sway over the lower
classes. This theme can be traced to sophist thinking “the shepherd who flocks his flock for
his own benefit” (The Republic). It should be noted that Raz a formative/procedural spectator
and Dworkin a substantive/liberal spectator both agree that a complete substantive approach
would defeat the ROL, but it could be argued that the main argument is the very nature of the
law and does moral values or "good laws" come with formative views in its pre disposition;
or what are the role of the courts in adjudication. Do they decide what is moral through
substantive interpretation or just formative? Case laws will be looked at to further investigate
2018 Public Law Zone B, Rule of Law

the claim of judiciaries place in checking legislative sovereignty and protecting ROL and
how formal (content free) or substantive (content rich) it gets. Dicey’s view is that courts are
ultimately the guarantors of the ROL was prima facie. However the late professor has been
subject of criticism in the modern times and settings, the main critic of Dicey was Dr.
Jennings. He has many analysis upon key themes of Dicey’s, but no other subject is more
criticized more than the doctrine of ROL. (Rule of Law in the modern law by Edward I
Sykes) Jennings however connotes that instead of destroying Dicey’s ROL he adds to it
through criticism-- making it fit to a modern ‘constitution’. Dr. Jennings is as influenced with
the idea of ‘public welfare’ and ‘public order’ just as much as Dicey, maybe even more as
Jennings is known as being a Fabian Socialist advancing certain democratic socialist
principles. His criticism is mainly on Dicey’s three limbs. The first criticism is that the
government in the modern ROL has a wide discretionary power and is contradictory to
Dicey’s first principle that no man is punishable unless he is in the breach of law after that
he will be subject to the ordinary legal process set out by the land and the ordinary courts of
the land. We can see Dr. Jenning’s truth in the case of (Belmarsh) and the Anti-terrorism Act
and the amount of discretion it gives to government. In defense, in a modern complex society
it is almost impossible for government not to heavily intervene in the interest on the
protection of the state both in security, and economics, and have secondary legislation
regulate and de-regulate in the forms of rules and regulations.
He goes on to criticize Dicey’s second limb in that all are equal to the law. He argues that
certain diplomats and particular figures are treated by different arbitration processes, while
ordinary people are held to a different arbitration process. However the (Pinochet case) may
beg to differ taking place in 1998-1999, however in the 21st c. Jennings may have some truth.
It may be important to notice that the Crown has full immunity.
The third limb not being spared states that individuals have certain freedom and free speech.
Dicey did mean this in court not by way of the Bill of Rights. To counter with Jennings’
observation: Dicey failed to evaluate the power of statute law and the binding power it has on
courts and focused solely on common law (judge made law). This raises valid questions on
the ultimate ROL, and judges being a guardian of it. Even though Lord Hope commented
courts are the ultimate authority on preserving ROL in (Jackson)[2005]. It is common
knowledge that case laws can be overturned by any Act of Parliament, an example can be the
Criminal Evidence Act 2008 which remits the common law of a criminal defendant to know
who bears witness against them (witness anonymity). As the constitution is unwritten in the
UK the most recent development and changes are relevant as far as Acts of Parliament even
in case laws. It might be worthy to note that the case of Jackson took place in 2005 and the
power of Parliament was demonstrated in 2008 by the Criminal Evidence Act overturning
common law and given the courts have duty to interpret Acts primarily with the literal rule if
not, go to mischief rule, and then golden rule. It could be said the courts have limitations.
As the common law argument has been satiated, there is a claim that Parliament has the
responsibility if not duty to protect the ROL, and should an Act of Parliament be passed if it
is against the ROL? By way of Parliamentary Sovereignty it could be said that Parliament
2018 Public Law Zone B, Rule of Law

certainly has the power to do so as demonstrated when it went against the general definition
of ROL with the Belmarsh case.
The most recent interpretation of the ROL has been through Lord Bingham and his very
comprehensive rules being the ‘Bingham’s eight sub rules’. It has been very influential on
modern debates on ROL.

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

This rule can be taken literally and it is what it is. Law must be assessable, clear, and
predictable, and intelligible meaning easy to understand and interpret. Assessable for a
claimant to claim rights, or a criminal to know what they did and understand why they
are being prosecuted, and for commercial reasons as any layman of law will be able to
read the rules, for this to take place logically it should be that the law is clear and
predictable (for consistency) or we may as well compare it with tyranny. Intelligible is
difficult as draftsmen struggle to make laws as simple and precise as possible but with
constant legislation updates and choosing of words it is hard to do.

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

law and not the exercise of discretion.

This rule tries to fight arbitrary power. For over discretion is arguably arbitrary. How this
lack of discretion is exercised should be looked at with hope for substantive (content rich)
advocates and formal (content free) advocates who claim certain rights should come with
ROL. The courts responsibility to interpret legislation even going to the length of using
the literal approach to the purposive approach lessens discretion and satisfies both Dicey
and Jennings.

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

This is quite reminiscent of the past, at least the first part of that laws should apply
equally to all. Objective means in another word a goal, and another key word
differentiation means to distinguish or differentiate between people; following the literal
meaning of these words we may discern that he is implying that to an extent certain
individuals in exceptional cases may require special adjudication.

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.
2018 Public Law Zone B, Rule of Law

This is a very substantive view maybe an ideal. Socrates argued that government is like
any other skilled profession or craft (techne) hence the term state craftsman. He also
argues that like any profession or craft the craftsman will want the best for his subject i.e.
a doctor for her patient, and government for their subjects, and that this is a logical
argument if followed and pertains to what would be ‘just’ as if a doctor finding the cure
for a patients ailment. Even looking through the eyes of utility we can see this ought to be
the norm as what is good for the sheep is good for the shepherd.

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

This may be dissected in two ways. First it fulfills the formal content free doctrine if we
are following Raz’s logic that ROL comes with certain rights as well as Dicey’s common
law rights. Second it fulfills the substantive content rich doctrine and its requirements of
rights given by Article 7 of the ECHR that no punishment without law. 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. Also with the incorporation of HRA certain substantive rights have been
brought to the UK, Dworkin a substantive member would be pleased as there is a balance
of formal and substantive with these legislations and is not lost to complete theory or an
ideal.

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.

Alternative Dispute Resolutions are becoming ever more popular and the use of
mediators and special tribunals are giving not only arguably giving a lack of discretion
but also better access to justice and reduction of court costs and lawyer fees becoming
more proportionate. This kind of substantive approach can be restorative in the faith of
ROL quite arguably as the governed see their rights being defended in society and the
people will see this as government taking care of them. This transparency is very
important for the ROL.

7) Adjudicative procedures provided by the state should be fair

This rule can be seen being implemented through the case of (R v Mullen) [2000]. It was
held that no matter the crime the appellant is accused of there is no justification of the
state acting outside the law. A huge statement for ROL.

8) The rule of law requires compliance by the state with its obligations in
international law as in national law.
2018 Public Law Zone B, Rule of Law

The efforts of the UK to ‘bring rights back home’ meaning that instead of going to
Strasbourg the people can now go to their home courts and have their rights defended.
And there is a rule that the judiciary must apply EU human rights laws as far as it is
possible to do so even arguably overriding Parliamentary Sovereignty. To the point
where ‘Horizontal Direct effect’ can be used. It should be remembered that the UK is a
dualist country and has incorporated ECHR and EU laws and as per human rights through
the Human Rights Act 1998 and has provisions that can repeal the legislation. As per
national law which are Acts and common law it must be predictable as a rule of thumb
and should be fair, clear, intelligible, predictable and assessable.

a) Entick v Carrington[1765]
Lord Camden the presiding judge held in the favor of the claimant who sued for damages
of 2000 pounds to his property and that Carrington had no right to enter and seek a
person’s private and personal space without the legal authority, and Earl of Halifax had
exceeded his authority of being a public figure of importance by acting as recognizable
legal authority which Carrington claimed to be enforceable in the courts and Lord
Camden held it was not a legal warrant and that if such a warrant was given it could only
be given by a constable or public officers that the laws recognize. Just out of revolution
this judgment may be the most important because it set the tone for what ROL is: rule
under law. If the defendant won it would mean that the very underpinning of ROL would
cease to exist and that law is not above its subjects. This judgment also recognizes the
interaction between its citizens protecting their private rights and that government of
recognized authority has ROL. A law must be broken before being seized by law the
person and their goods according to Dicey.

b) Burmah Oil[1965]
Is a case that looks at the content free/formal conception of ROL. Generally this case
would be said to undermine the ROL, but not so if taken the formal view as the formal
view focuses on procedure and not good or bad law, just or unjust, prospective or
retrospective laws. Though very few formalists may argue that ‘just’ comes as a pre-
disposition but Dicey would differ. In this case UK was asked to compensate for
destroying oil fields in Burma and per requisitioning of the claimants property by
English laws the claimant were owed compensation, but in that year a retrospective law
was passed ‘War Damage Act 1965’ and the UK were not entitled to pay the claimant.
This also brings the question can Parliament undermine ROL because here the judiciary
had to implement its formal procedures and did not have room for substantive justice,
however by definition if the laws are passed through the ordinary legal system which it
2018 Public Law Zone B, Rule of Law

was and if the laws are seen by the ordinary courts which it was it undergoes ROL just a
very rigid content free/formal precept.

c) M v Home Office [1994]

This case kind of re enforces the rule of law that even a minister of the Crown, though
not the Crown is subject to the ROL via Supreme Court Act 1981. A minister even in
their legal capacity can be held liable for a tort committed even if they were just carrying
out there official duty. This entails a very strong case for the ROL in the English
constitution and the claim that it is central to the country’s functioning. Though
Belmarsh was seen as a case to undermine ROL it should be noted that the Director a
public official carrying out his duty voluntarily gave up his duty and it was an
independent decision, whereas M v Home Office if carrying out the public duty is done
in an inappropriate manner then the government forces not government(a criticism of
Jennings) can still be accountable to ROL and here the courts is what enforced this
liability which shows the judiciaries power in protecting ROL(Dicey’s first limb) once
again. Like in Jackson they saw the old Act making the Hunting Act valid, here the
Supreme Court Act re-enacted some of the Crown Proceedings Act 1947 that ministers
can be held liable though in a limited way (Jennings’s criticism of Dicey’s second limb)
which leads one to think ROL is limited.

d) Pinochet [1998-1999]

Pinochet case affirms rule of law in the modern era as well and how Human Rights are a
predisposition of Rule of Law much like in the substantive view of Dworkin. As Lord
Browne Wilkinson said about the humanitarian violations committed by Pinochet in
Chile as dictator that these crimes can be punished by any state because the offenders are
common enemies of all mankind. Through civil and criminal litigations it seems the
whole world agrees on a certain kind of ROL.

e) Belmarsh [2004]

A and others (Belmarsh) was about the detention of foreign prisoners indeterminately
without trial under S.23 of the Anti-Terrorism Act. In this case unlike Jackson the
judiciary backed off and let the Legislator, Parliament handle matter of such high
political debate even as far as going to say ‘The function of independent judges charged
to interpret and apply the law is universally recognized as a cardinal feature of the
modern democratic state, a cornerstone of the rule of law itself.’ Meaning the judiciary
can only come as close to interpreting and applying the law and maybe through
2018 Public Law Zone B, Rule of Law

interpretation have little discretion, very opposite of Jackson, and a very formal view
indeed. However the courts did point out in this case that the Act was discriminatory
towards national citizens and foreign citizens going against Art. 4 of ECHR, however did
not challenge Parliaments supremacy who is the ordinary law maker but these prisoners
were not given a trial under ordinary courts and this even goes against Dicey’s rule of
law and his first limb who is a formalist. This case may question the claim of a true ROL
in UK.

f) Jackson [2005]

Is a very controversial case, taken place in modern era. It really shows that the breadth of
the claim of ROL being central to the constitution and the role of the judiciary of
protecting ROL. Lord Hope commented ‘the ROL enforced by the courts is the ultimate
controlling factor upon which…constitution is based.’ Baroness Hale concluded ‘the
court will treat with suspicion any attempt to subvert the ROL.’ Jackson’s claim the
courts sought to undermine the ROL by claiming that the ordinary legal process was not
followed and that the Hunting Act 2004 was not a valid Act of Parliament because it did
not have the HOL’s consent in its initial passing through the Parliament Acts of 1911
and 1949. However the courts refused the claim and maintained ROL saying the Hunting
Act was a valid Act thus the court deciding what a valid Act constitutes as and following
that Act is ROL. The court decreed that the Act was duly ratified using the ordinary legal
process.

g) Constitution Act 2005 (Role of the Lord Chancellor in ROL)

The Constitution Act 2005

After much debate in 2004 The Constitution Act 2005 was introduced limiting the role
of Lord Chancellor and making the judiciary totally independent which is a very
important part of the ideal ROL. This Act has made the Supreme Court of the UK as the
superior court of the UK. This Act creates judicial diversity by having certain provisions
which ultimately establishes more substantive forms of ROL. The appointment of Judges
have become completely independent. In a small summation the Supreme Court is
supreme and completely separate from the HOL.

To the role of the Lord Chancellor it used to be that the position holder served all three
branches of executive, legislative, and in the judiciary. Other than bringing topics of
SOP it breached the concept of ROL. He was made senior officer of the HOL and his
power thus restricted, and implementing an important demarcation for the ROL. Maybe
even more important the Act provided procedure or qualification factors to hold this
senior position and removed the use of convention which may be too discretionary.
2018 Public Law Zone B, Rule of Law

h) Corner House Research [2008]

This case could be closely related to Belmarsh. The whole idea of ROL is questioned
when economic and security stakes are high. This case scrutinizes the claim that Britain
is truly under the strict form of ROL. The Director of a public body ‘Serious Fraud
Office’ started investigating a UK company that dealt arms to Saudi Arabia and Saudi
government threatened to pull out from its anti-terrorism support agreement amongst
other sanctions against the UK leading one to think of fraud and corruption. The UK
Company refused to give information per statutory notice which already overrides the
concept of ROL. The claimants argued the Director an ombudsmen should not have been
influenced by a threat and should have been left independent and the divisional court
agreed that this was a threat to the ROL. However the HOL said about the matter as
follows: it was a private decision of the Director to forego the bribery investigations and
he made it out of the interest of English citizens so in a very thin way the ROL was
preserved as the public Director was entitled to his legal decision.

When evaluating the ROL in whole and if it is the ultimate controlling factor on which
the UK unwritten constitution is based on. The history of the ROL must be evaluated and
taken into account from antiquity to the 21st c. its whole evolution in time must be
considered as to what it has become recently, taking in content free and content rich
beliefs and its balance or imbalance by looking at scholars and academics who are able
to propound their legitimate theories on ROL in their time and looking at the sequential
timeline of writings and their application and looking at the sequential time line of case
laws or Acts and Acts repealed by Parliament as it will demonstrate its history thus the
evolution of the ROL in turn answering if ROL is a maxim for the unwritten UK
constitution. In succession, the history of the ROL in recorded history began in Greece
and Sparta. Many of our root social theories can be traced back to Plato, and his accounts
of Socrates, and the Greek sophists, in the ‘Republic’ by Plato he begins a conversation
about political to legal theory and almost all concepts that we still are questioning and
evolving on as a human race. Which the ROL in the UK can be said to be evolving still
and with the idea of ‘justice’ in mind. As the law is created by man it cannot be above
his intention and two thieves with unjust intentions will never be able to successfully
reach a common goal. It is through ideas of Human Rights that the UK ROL is based
upon as can be said by repealing of the ‘Anti-Terrorism Act’ in 2005 just within a four
years span of time. The UKHL held indefinite detention without trial was always illegal;
its justification had to be utterly exceptional on the case of (Belmarsh) which shows a
huge commitment on the ROL in its substantive justice sense. It could be argued by even
Raz that the formal view at the end of the day may sound cold but it is just there to
uphold society and make it better through law and the obeying of it, and Parliament
should have responsibility if it is a shepherd that it look after its flock for what is good
for the flock is good for the shepherd, arguably. The judiciary can be said to be able to
limit Powers of Parliament through their voice even if an Act may override common law
2018 Public Law Zone B, Rule of Law

but application of Human Rights laws gives judges a wider ability to limit Parliament.
From the official ROL the ‘Magna Carta’ to Dicey, to Jennings, to Bingham throughout
the history of ROL whether formal or substantive it wants to have justice for society and
the word moral may evolve with time but as more and more basic Human Rights are
being upheld it can be said that substantive concept is becoming more popular in the 21st
c. and not just compounding to theory or ideal. Human atrocities can be repressed as law
is here made by people with an idea of a society to be ideal and function efficiently for
the word humanity often overlooks inhumanity and thinks it something separate. A
Monarchy can become Tyranny so can any societal structure or class and ROL protects
against these inherent crimes.