The rule of law is a principle which is intended to advocate the utmost supremacy of the law in the constitution as an entity which overshadows even the monarch. This definition, whilst simplistic, details the main feature of this principle however leading academics despute over the exact nature of the rule of law – how it ought to work and whether, in fact, it is working in UK courts at present. There are two main strands to the conception of the rule of law which will be discussed within this essay in an attempt to define the rule of law and then to assess whether courts in the UK are respecting the principle.
Craig describes the two strands of the principle of the rule of law as 'formal' and 'substantive'1, whereas Barber and Dworkin term them 'legalistic' and 'non-legalistic'2 or 'rule book conception' and 'rights conception' respectively. The first of these two conceptions within the rule of law deals with 'the manner in which the law was promulgated'3, and so deals primarily with the nature of the construction of laws itself; this concerns, for example, the procedures which must be adhered to when laws are created, the authorities who have the proper right to create them and for the right reasons.
This strand of the rule of law clearly presents a theory grounded purely in the factual elements of law-making. Dicey supports this reasoning and claims that the rule of law means that 'no man is punishable or can be lawfully 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'4. This quotation demonstrates the formalist approach as it presents a clear concern for the manner and procedures which are followed in the promulgation of the laws.
Dicey also presents a further element of the formalist concept in his theory that 'no man is above the law'5; this clearly concerns the formal issue of who the law is applicable to. The temporal element of law-making, whether laws should be prospective or retrospective, is dealt with in Raz's formalist theory of the rule of law. Raz contends that laws ought to be prospective in order than people can adjust their behaviour to adhere to laws6. Barber asserts that Raz and Dicey's assessments of the rule of law also contain points relating to the substantive strand of reasoning.
This principle holds that the quality and justness of laws should also be taken into account when creating them. Raz's claim that 'laws should apply equally to all'7 clearly echoes Bingham's idea that 'adjudicative procedures… should be fair'8. Therefore whilst it is clear that there is some schism between academic opinions upon what can properly be termed the rule of law, there are certainly several key principle which the term embodies and which must be made clear in order to assess the extent to which courts respect them.
It is clear that laws should be applicable and applied to everyone within a country, and so this clearly includes the government, and that laws should be created in an open and stable system of rules. Raz's concept that the law should not be changed frequently so that the public can be aware of it can be seen to have been respected by UK courts in the case of R (Purdy) v. DPP9.
In this case it was held, following an earlier refusal to make a clarification, that the Director for Public Prosecutions has a responsibility "to clarify what his position is as to the factors that he regards as relevant for and against prosecution" in cases of encouraging and assisting suicide10. Although this case does not directly mention the rule of law it does demonstrate the practice of one of Raz's principles that the law should not be changed frequently so that the public can be aware of the law.
In forcing the DPP to make his criteria more clear, the courts showed a great deal of accordance with Raz's principle and the fact that awareness is a fundamental principle of the rule of law. This principle of clarification of laws and the restraint of powers from sources other than the courts is reflected in the case of R (on the application of Bancoult) v. Secretary of State for Foreign and Commonwealth Affair11. This case raised several points of law, namely, how far the scope of prerogative powers extends and the need for a judicial review on Orders of Council.
The case reviewed the decision of the Foreign Secretary to remove the inhabitants of Chagoss, a British Indian Ocean Territory, under an Immigration Ordinance. It was held by all judges that the ordinance was invalid, Lord Hoffman stated that there is 'no reason why prerogative legislation should not be subject to review on ordinary principle of legality, rationality and procedural impropriety in the same way as other executive action'.
This obviously maintains Raz's view that courts should have complete judicial power of review and that the rule of law is observed if the rights of the executive and separated and curtailed to some extent. Another case where the courts can clearly be seen to have upheld the rule of law, even in its most basic sense, can be seen within M v. Home Office13. This case saw an applicant who was refused asylum to the UK, the Home Office failed to allow the defendant to remain whilst the hearing was pending and also failed to return him after an order was made.
The decision which had to be made by the House of Lords was whether the actions of the Home Office and their failings amounted to contempt. It was held that ministers and civil servants are certainly subject to jurisdictions and so the Home Secretary was held to have been in contempt for disobeying the orders of a judge. In the judgment on this case Lord Woolf quoted Dicey in support of the Lords' decision: '… here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals'14.
Within this judgment Nolan LJ effectively summarised the intended relationship between the courts and the executive and highlight the fact that the courts respect that it must fall within the rule of law: 'the proper constitutional relationship of the executive with the courts is that the courts will respect all acts of the executive within its lawful province, and that the executive will respect all decisions of the courts as to what its lawful province is'15. It is clear that the issue of whether the courts are respecting the rule of law by subjecting the executive to legal responsibility is a contended one.
It can be seen again in the case of Entick v. Carrington16 that the executive are accountable to the courts for their actions. Within this case the courts held that the executive did not have the proper authority to conduct a search of the defendant's house for 'seditious papers' and were in fact guilty of trespassing. The judgment in the case validated one of Dicey's key ideas that, although citizens are free to do anything which is not prohibited by law, the executive are bound to not do anything which is not allowed by case law or statute.
Lord Camden concluded that 'by the law of England, every invasion of private property, be it ever so minute, is a trespass. No man can set foot upon my property without my licence, but he is liable to an action though the damage be nothing. '17 There are of course, conversely, several cases where there is contention over the extent to which the rule of law has been properly respected by the courts. The notable case of Council of Civil Service Unions v. Minister for the Civil Service18 demonstrates the courts in a position where they may be considered to have compromised the rule of law in practice.
The facts of this case are that the minister instructed that staff could no longer be part of a trade union; this decision was taken irrespective of any talks with trade union officials or staff. The rule of law would have suggested that the minister was under a duty of consultation to the members prior to taking a decision which affected them directly. The court recognised this and stated that ordinarily the minister would have been expected to uphold the expected duty of fairness, however in this case it was held that the minister was not liable because of the larger issue of national security.
Whilst it is contended that this case is one in which the courts have not respected the rule of law in allowing the minister's actions to stand, it seems more clear here that the courts have in fact respected the rule of law by recognising it but also by recognising its flexibility and co-existence with other factors and concerns. It seems futile and counter-productive to attempt to hold the rule of law as a principle above all other factors of importance such as the need for national security.
Raz echoes this and states that 'given that it is only one virtue of a legal system it should not prevent the attainment of other virtues valued by that system'19. Similarly, the case of R (Corner House Research) V. Director of the Serious Fraud Office20 was not clear-cut on the issue of the rule of law in practice on the courts. In this case the Director of the Serious Fraud Office ceased action on an allegation of corruption as a foreign state had threatened to withdraw communication if investigations did not cease.
The prosecution stated that the minister's decision had been unlawful and that he had acted outside of the discretionary powers allocated to him by the Criminal Justice Act21. The House of Lords however held that the action of the Director had been lawful as a highly exceptional case. It could be viewed here that he courts had ignored their responsibility to uphold the rule of law by placing seemingly lax limitations upon discretionary powers where there should be greater scrutiny of ministers' actions in a judicial review.
However, it seems more viable again to view this case as another where the Lords have taken into account the issue of national security alongside the rule of law rather than beneath it. It seems rational that in some cases, such as these, national security must take precedence over the maintenance of the rule of law in all senses. Whilst there are obviously contentious cases wherein the courts seem to have overlooked issues which are clearly a part of the rule of law, it would be futile to claim that they disregard or disrespect the rule of law in their general functioning.
Raz's claim that 'it is only one virtue of a legal system, and may have to be sacrificed… '22 certainly seems to be a justified one. There are few who would argue that in every way the rule of law is not of great importance and perhaps 'democracy… cannot exist without the rule of law'23 however it also seems that this principle cannot and should not be blindly upheld regardless of all other influences and factors.
The rule of law, in cases such as R (Corner House Research) V.Director of the Serious Fraud Office, was not disrespected but recognised and, in a pragmatic manner, was not applied because of more pressing matters. This essence of pragmatism is what ought to exist when taking the rule of law into account in a democracy. Therefore, though contention exists it seems to be justified contention and so it would seem that the courts are upholding the rule of law in a satisfactory manner by not respecting it too rigidly or vehemently.