Rule of law in the United Kingdom

Last updated

The rule of law is one of the longest established common law fundamental principles of the governance of the United Kingdom, dating to Magna Carta of 1215, particularly jurisprudence following its late 13th century re-drafting. At a minimum, it subjects an otherwise absolute monarch (executive) and all free people within its jurisdictions, primarily those of England and Wales, Scotland and Northern Ireland, to legal doctrines known as the general principles of law. It has evolved to work only alongside equal application of the law to all free people 'equality before the law' and within the framework of the constitutional monarchy supports the legal doctrine of parliamentary sovereignty. Exactly what it entails beyond this and the way that different aspects of the rule of law principle are applied, depends on the specific situation and era.

Contents

Among recognised academics in this field are Albert Dicey, Joseph Raz (building on thoughts by Friedrich Hayek) and Trevor Allan, who have proposed contrasting ideas about the scope of the rule of law: specifically, whether the emphasis is on legal form or substantive content and normatively if it should be.

Ideas

The rule of law is emphasised through many separate ideas. Among them are that law and order in contrast to anarchy; the running of government in line with the law (i.e. "legal government") and normative discussion about the rights of the state as compared to the individual. [1] Albert Venn Dicey described the rule of law as acting in three ways: the predominance of regular law as opposed to the influence of arbitrary power; equality before the law; and, that constitutional laws are not the source but the consequence of the rights of individuals. [2]

The specific checking of arbitrary power is its oldest and most definitive concept as a consequence of Magna Carta and its byproduct, the first representative Parliament of England (and soon officially thereafter known as of England of Wales), which denied for the first time from the King the completely unfettered powers formerly exercised by the most powerful absolute monarchs on the throne. The key clause in the document has been consistently translated from identical, though abbreviated, Latin.

To no one will we sell, to no one deny or delay right or justice.

This was by the 14th century interpreted by Parliament as guaranteeing trial by jury. [3] [4]

Similarly, in Scotland, a parliament evolved. Before its union with England and Wales in 1707 the Parliament of Scotland was long portrayed as a constitutionally defective body [5] that acted merely as a rubber stamp for royal decisions, but research during the early 21st century has found that it played an active role in Scottish affairs, and was sometimes a thorn in the side of the Scottish crown. [6]

The enforcement of the doctrine of habeas corpus was widely achieved in the 17th century, however with slavery primarily in the colonies continuing, it was not until the successes of abolitionism in the United Kingdom, the Slave Trade Act of 1807 and Slavery Abolition Act 1833, that equality before the law throughout the Empire was in a formal legal sense achieved in this respect.

The Bill of Rights 1689 and the Act of Settlement 1701 imposed constraints on the monarch and it fell to Parliament under the doctrine of parliamentary sovereignty to impose its own constitutional conventions involving the people, the monarch (or Secretaries of State in cabinet and Privy Council) and the court system. All of these three groups of institutions have proven wary of upsetting or offending the others, adopting conventions designed to ensure their long-term integrity and hence self-preservation. [4]

After ordinary executive decisions were delegated, such as to a recognised Prime Minister and cabinet system from the mid 18th century, following on from the Bill of Rights 1689 in the Glorious Revolution, the highest courts laid down jurisprudence entrenching the growing doctrines of the Enrolled bill rule and Parliamentary sovereignty. In return Parliament has acquiesced in the senior courts' ability to declare unlawful new legislation based on older Treaty-based legislation for instance the Merchant Shipping Act 1988 in the Factortame I and IV decisions and executive actions in judicial reviews often based on the Human Rights Act 1998 (and in turn or separately the Universal Declaration of Human Rights and International Covenants). These developments have entrenched the doctrine of the rule of law as part of the constitution. [4]

Prevention of crime

Law and order requires the prevention of crime as well as the contribution of authorities, and as such it does not matter by what means these are achieved, or what the characteristics of the law are. This concept of the rule of the law can, therefore, be upheld by even the most tyrannical dictatorship. Such a regime may allow for the normal operation of courts between private parties, and the limited questioning of the government within the dictatorial framework. [1] Whether the rule of law can truly exist without democracy is debated. Freedom of expression and action seems to be what the prevention of crime allows citizens; therefore, limiting it by autocratic means has been considered incompatible with the rule of law. However, the picture is much clearer in the other direction: for democracy to thrive, the rule of law (in this limited sense) must be observed. [7]

Public authorities must act within the law assigned to them, a second approach to the rule of law. Any actions taken outside the law are ultra vires and cannot be sanctioned by the courts. Entick v Carrington was a landmark case in terms of the English law, with the famous dictum of Camden LJ: "If this is law it would be found in our books, but no such law ever existed in this country". [8] [9] Joseph Raz identifies government following the law as a tautology: if the will of those inside the government were expressed outside their legal constraints, they would no longer be acting as the government. He therefore characterises this legal form argument as one of mere obedience to the law; ensuring those in government follow the laws as those outside it should. He rejects that as the sole conception of the rule of law. [10] In the 2008 case of R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) , an Order in Council of the British government was found to have no basis in law by a minority of judges on final appeal. Additional powers can be granted to actors on behalf of the government only through parliament. In the United Kingdom, sanctions for departing from these rules come through ordinary court procedure; in other countries they may be assigned to designated courts. [9] Government departments are directly liable for damage caused by their acts; however, the sovereign retains immunity from prosecution. This immunity runs wider that the Head of State of other countries, for example, the President of the United States may be impeached then put on trial. [11] In M v Home Office the Home Secretary was found to be liable for contempt of court. On the other hand, Acts of Parliament that contravene basic rights – such as the indefinite detention without trial of suspected terrorists – whilst adhering to this concept of the rule of law. [12]

This is identified by Dicey as part of his first conception: "a man may with us be punished for a breach of law, but he can be punished for nothing else". [2]

Substantive content

Any substantive version of the rule of law as it applies to the United Kingdom asks normative questions about what rules the government should be under, rather than merely ensuring it follows those it is under. The rule of law is thus likely to be invoked when considering controversial powers of the government that stray from precedent, depart from the European Convention of Human Rights as embodied in the Human Rights Act 1998, and break new legislative ground. [13]

This interpretation is particularly controversial. If the rule of law is to enforce specific "constitutional" or "core" rights, what they should be is difficult to decide. Among them are questions of whether ideas such as the right not to be held indefinitely without trial, deemed contrary to the Convention in A v Home Secretary , could ever be deemed appropriate if circumstances changed. [14] In R. ex parte (Corner House Research) v Director of the Serious Fraud Office (2008), the defendant public prosecution body chief was deemed to allow national security considerations to take precedence over a thorough investigation into alleged bribery in certain arms deals, which is that departure from completely equal application of the law (including its application to the Crown) in order to protect life may result in a perceived breach of the modern-day rule of law. [14]

Trevor Allan sees the rule of law as, primarily, a vehicle for the protection of rights against "irresponsible legislative encroachment" in the face of a government with a large authority, backed by (normally) a significant majority in the House of Commons. [15] The rule of law is contrasted with rule by men, and the arbitrary power one man might exercise over the other – the people require protection from the government. [16] This leads him to support the "core" features of the rule of law, including government acting within its legal authority. [17] Noting that this is not incompatible with wide discretionary powers on the part of the government, Allan then goes on to accept Raz's complaint, below, that too wide a definition is to expound a complete social philosophy. He instead chooses a conception that is not so wide, whilst being not as limited as Raz's. [18]

Opposition to substantive content

In particular, Joseph Raz has argued that the rule of law should be limited to formal values – although formal values wider than merely maintaining law and order. These include transparency of law making, non-retroactive law, the independence of the judiciary and wide access to the courts, and the right to a fair trial. [14] He suggests that the rule of law has become a by-word for general political ideals, separate from its actual meaning: "if the rule of law is the rule of good law then to explain its nature is to expound a complete social philosophy". [19] Instead, he identifies principles of "open and relatively stable" lawmaking, and laws that the public can live their lives by. This concept is a merely formal one, he identifies, because this could be achieved through dictatorship, democracy, or any other means. [20] He expresses confidence that this conception is not so restricted an approach as to be meaningless. [20] Raz drew on similar ideas expressed by Friedrich Hayek, including "stripped of all technicalities, [the rule of law] means that government in all its actions is bound by rules fixed and announced beforehand – rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of this knowledge." [21] Raz identifies eight principles instead: prospective, open and clear laws; relatively stable laws; laws based on stable, open and open and clear rules; the independence of the judiciary; the principles of natural justice (unbiased judiciary); judicial review of implementation; accessible courts; and no perversion of the law by policing discretion. [22] However, he considers the list incomplete. [23]

See also

Related Research Articles

<span class="mw-page-title-main">Constitutional law</span> Body of law

Constitutional law is a body of law which defines the role, powers, and structure of different entities within a state, namely, the executive, the parliament or legislature, and the judiciary; as well as the basic rights of citizens and, in federal countries such as the United States and Canada, the relationship between the central government and state, provincial, or territorial governments.

<span class="mw-page-title-main">Law of the United Kingdom</span>

The United Kingdom has four legal systems, each of which derives from a particular geographical area for a variety of historical reasons: English and Welsh law, Scots law, Northern Ireland law, and, since 2007, purely Welsh law as a result of Welsh devolution, with further calls for a Welsh justice system.

<span class="mw-page-title-main">A. V. Dicey</span> British jurist and constitutional theorist (1835–1922)

Albert Venn Dicey,, usually cited as A. V. Dicey, was a British Whig jurist and constitutional theorist. He is most widely known as the author of Introduction to the Study of the Law of the Constitution (1885). The principles it expounds are considered part of the uncodified British constitution. He became Vinerian Professor of English Law at Oxford, one of the first Professors of Law at the London School of Economics, and a leading constitutional scholar of his day. Dicey popularised the phrase "rule of law", although its use goes back to the 17th century.

In the 1760s William Blackstone described the Fundamental Laws of England in Commentaries on the Laws of England, Book the First – Chapter the First : Of the Absolute Rights of Individuals as "the absolute rights of every Englishman" and traced their basis and evolution as follows:

An entrenched clause or entrenchment clause of a constitution is a provision that makes certain amendments either more difficult or impossible to pass. Overriding an entrenched clause may require a supermajority, a referendum, or the consent of the minority party. The term eternity clause is used in a similar manner in the constitutions of Brazil, the Czech Republic, Germany, Greece, India, Iran, Italy, Morocco, Norway, and Turkey, but specifically applies to an entrenched clause that can never be overridden. However, if a constitution provides for a mechanism of its own abolition or replacement, like the German Basic Law does in Article 146, this by necessity provides a "back door" for getting rid of the "eternity clause", too.

<span class="mw-page-title-main">Constitution of Singapore</span> Supreme law of Singapore

The Constitution of the Republic of Singapore is the supreme law of Singapore. A written constitution, the text which took effect on 9 August 1965 is derived from the Constitution of the State of Singapore 1963, provisions of the Federal Constitution of Malaysia made applicable to Singapore by the Republic of Singapore Independence Act 1965, and the Republic of Singapore Independence Act itself. The text of the Constitution is one of the legally binding sources of constitutional law in Singapore, the others being judicial interpretations of the Constitution, and certain other statutes. Non-binding sources are influences on constitutional law such as soft law, constitutional conventions, and public international law.

<i>Sue v Hill</i> Australian High Court case

Sue v Hill was an Australian court case decided in the High Court of Australia on 23 June 1999. It concerned a dispute over the apparent return of a candidate, Heather Hill, to the Australian Senate in the 1998 federal election. The result was challenged on the basis that Hill was a dual citizen of the United Kingdom and Australia, and that section 44(i) of the Constitution of Australia prevents any person who is the citizen of a "foreign power" from being elected to the Parliament of Australia. The High Court found that, at least for the purposes of section 44(i), the United Kingdom is a foreign power to Australia.

<i>Council of Civil Service Unions v Minister for the Civil Service</i> United Kingdom constitutional law

Council of Civil Service Unions v Minister for the Civil Service[1984] UKHL 9, or the GCHQ case, is a United Kingdom constitutional law and UK labour law case that held the royal prerogative was subject to judicial review.

<i>R (Jackson) v Attorney General</i> UK House of Lords case

R (Jackson) v Attorney General [2005] UKHL 56 is a House of Lords case noted for containing obiter comments by the Judiciary acting in their official capacity suggesting that there may be limits to parliamentary sovereignty, the orthodox position being that it is unlimited in the United Kingdom.

<span class="mw-page-title-main">Primacy of European Union law</span> Legal principle

The primacy of European Union law is a legal principle establishing precedence of European Union law over conflicting national laws of EU member states.

<span class="mw-page-title-main">United Kingdom constitutional law</span> Law that constitutes the body politic of the United Kingdom

The United Kingdom constitutional law concerns the governance of the United Kingdom of Great Britain and Northern Ireland. With the oldest continuous political system on Earth, the British constitution is not contained in a single code but principles have emerged over the centuries from common law statute, case law, political conventions and social consensus. In 1215, Magna Carta required the King to call "common counsel" or Parliament, hold courts in a fixed place, guarantee fair trials, guarantee free movement of people, and free the church from the state; it also enshrined the rights of "common" people to use the land.

<span class="mw-page-title-main">Judicial review</span> Ability of courts to review actions by executive and legislatures

Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompatible with a higher authority: an executive decision may be invalidated for being unlawful or a statute may be invalidated for violating the terms of a constitution. Judicial review is one of the checks and balances in the separation of powers: the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority. The doctrine varies between jurisdictions, so the procedure and scope of judicial review may differ between and within countries.

<span class="mw-page-title-main">Constitution of the United Kingdom</span> Principles, institutions and law of political governance in the United Kingdom

The constitution of the United Kingdom or British constitution comprises the written and unwritten arrangements that establish the United Kingdom of Great Britain and Northern Ireland as a political body. Unlike in most countries, no attempt has been made to codify such arrangements into a single document, thus it is known as an uncodified constitution. This enables the constitution to be easily changed as no provisions are formally entrenched; the Supreme Court of the United Kingdom recognises that there are constitutional principles, including parliamentary sovereignty, the rule of law, democracy, and upholding international law.

<span class="mw-page-title-main">Rule of law</span> Political situation where every citizen is subject to the law

The rule of law is a political ideal that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. The term rule of law is closely related to constitutionalism as well as Rechtsstaat. It refers to a political situation, not to any specific legal rule. The rule of law is defined in the Encyclopedia Britannica as "the mechanism, process, institution, practice, or norm that supports the equality of all citizens before the law, secures a nonarbitrary form of government, and more generally prevents the arbitrary use of power."

<span class="mw-page-title-main">Rule of law doctrine in Singapore</span> Law doctrine in Singapore

In Singapore, the rule of law doctrine has been the topic of considerable disagreement and debate, largely through differing conceptions of the doctrine. These conceptions can generally be divided into two categories developed by legal academics, the "thin", or formal, conception and the "thick", or substantive, conception of the rule of law. The thin conception, often associated with the legal scholars Albert Venn Dicey and Joseph Raz, advocates the view that the rule of law is fulfilled by adhering to formal procedures and requirements, such as the stipulations that all laws be prospective, clear, stable and constitutionally enacted, and that the parties to legal disputes are treated equally and without bias on the part of judges. While people subscribing to the thin conception do not dismiss the importance of the content of the law, they take the view that this is a matter of substantive justice and should not be regarded as part of the concept of the rule of law. On the other hand, the thick conception of the rule of law entails the notion that in addition to the requirements of the thin rule, it is necessary for the law to conform with certain substantive standards of justice and human rights.

Constitutionalism is "a compound of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law".

<span class="mw-page-title-main">Parliamentary sovereignty in the United Kingdom</span> Constitutional principle of the United Kingdom

Parliamentary sovereignty is an ancient concept central to the functioning of the constitution of the United Kingdom but which is also not fully defined and has long been debated. Since the subordination of the monarchy under parliament, and the increasingly democratic methods of parliamentary government, there have been the questions of whether parliament holds a supreme ability to legislate and whether or not it should.

<span class="mw-page-title-main">Separation of powers in the United Kingdom</span>

The concept of the separation of powers has been applied to the United Kingdom and the nature of its executive, judicial and legislative functions. Historically, the apparent merger of the executive and the legislature, with a powerful Prime Minister drawn from the largest party in parliament and usually with a safe majority, led theorists to contend that the separation of powers is not applicable to the United Kingdom. However, in recent years it does seem to have been adopted as a necessary part of the UK constitution.

Section 3 of the Human Rights Act 1998 is a provision of the Human Rights Act 1998 that enables the Act to take effect in the United Kingdom. The section requires courts to interpret both primary and subordinate legislation so that their provisions are compatible with the articles of the European Convention of Human Rights, which are also part of the Human Rights Act 1998. This interpretation goes far beyond normal statutory interpretation, and includes past and future legislation, therefore preventing the Human Rights act from being impliedly repealed by subsequent contradictory legislation.

Parliamentary sovereignty, also called parliamentary supremacy or legislative supremacy, is a concept in the constitutional law of some parliamentary democracies. It holds that the legislative body has absolute sovereignty and is supreme over all other government institutions, including executive or judicial bodies. It also holds that the legislative body may change or repeal any previous legislation and so it is not bound by written law or by precedent.

References

  1. 1 2 Bradley, Ewing (2011). p. 95.
  2. 1 2 Dicey (1914). Part 2, chapter 4.
  3. ↑ "Magna Carta an introduction" The British Library. Retrieved 4 February 2015.
  4. 1 2 3 Wade, Sir William (1996). "Sovereignty - Evolution or Revolution?". Law Quarterly Review . 112: 574.
  5. ↑ R. Rait, 'Parliaments of Scotland' (1928)
  6. ↑ Brown and Tanner, passim; R. Tanner, The Late Medieval Scottish Parliament, passim; K. Brown and A. Mann, History of the Scottish Parliament, ii, passim
  7. ↑ Bradley, Ewing (2011). pp. 95–96.
  8. ↑ [1765] EWHC KB J98
  9. 1 2 Bradley, Ewing (2011). p. 96.
  10. ↑ Raz (1977). pp. 196–197.
  11. ↑ Bradley, Ewing (2011). pp. 96–97.
  12. ↑ Bradley, Ewing (2011). p. 97.
  13. ↑ Bradley, Ewing (2011). pp. 97–98.
  14. 1 2 3 Bradley, Ewing (2011). p. 98.
  15. ↑ Allan (1985). pp. 111–112.
  16. ↑ Allan (1985). pp. 112–113.
  17. ↑ Allan (1985). p. 113.
  18. ↑ Allan (1985). pp. 113–114.
  19. ↑ Raz (1997). p. 195.
  20. 1 2 Raz (1997). p. 198.
  21. ↑ Taken from The Road to Serfdom (1945): quoted in Raz (1977) p. 195.
  22. ↑ Raz (1977). pp. 198–201.
  23. ↑ Raz (1977). p. 202.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.