RULE OF LAW Studoc

What manner of thing is the rule of law:

  A description of a state of affairs (Raz)
  A principle of the constitution: a normative demand that applies to all constitutional orders
  A rule found within the legal order, found within the sources of law (statutes) that judges use
to make their decisions Can be all of these things. These are different and interconnected view on
what the rule of law is.

DICEY

Dicey’s Rule of Law: There are three elements to the rule of law
1. Individuals are not punished unless they have broken a distinct law. This is the principle of legality.
a. Legal aspect: the law is expressed in such a way that people can know what they mustn’t do
if they want to avoid punishment (this is against retrospective criminalisation); a law of
clarity
b. Factual aspect: How the law actually applies and how power is exercised within the
community. People are in fact not punished unless they have broken a rule of law.
Dicey contrasts what exists in the UK to the rest of Europe and says that in other places the weak are
punished by the powerful even if they have not broken the law (Bastille, France, Voltaire). In the
UK, if you have not broken the law you will not be punished.
2. Everyone including state officials is bound by the ordinary law and subject to the ordinary courts.
a. Legal: No arbitrary immunities given to classes of people.
b. Factual: state officials have not been given vague powers.
In other countries groups of people (clergy) are given legal immunity from the ordinary operation of
the law. In the UK in contrast to these countries officials do not have broad powers and arbitrary
immunities. This is a principle as to how power is exercised in the constitution. In the UK as a matter
of fact the powerful cannot ignore the law. A rich and poor person are punished in the same way.
This is very important and relates to the functioning of a legal system and the protection of liberty.
Power is regulated through law, people know where to stand because they know how the law will
apply to them.
3. These two principles structure the Common Law and protect our liberty.
This is not a principle itself but instead a payoff of the initial two. Because the rule of law animates
the British constitution, people’s liberties are protected by the very structure of the common law.
This account of liberty is a negative liberty since a society governed by law allows a person to know
where they stand as regards to punishment.

Dicey wanted to contrast the continental systems (Bill of Rights) with the UK system. Dicey was
sceptical about Bills of Rights and this was his main critique. He says that they can give you a right but
that right can also be torn up. In contrast, the negative liberty protected by common law (state officials
are responsible for their actions) cannot be torn up since it is inherent in the common law and the whole
system of common law must be removed to alter this. This is a good way to think about protection of
liberty.
His mistake is to think of this as a choice in which the two cannot exist together. Barber rejects this and
says the two are compatible. The rule of law on the one hand protects one’s liberty (if state wants to
stop something it has to pass a discreet statute to prevent that from happening). This is a negative
liberty where a discreet statute has to be passed to limit some liberty. The Human Rights Act can be
seen as a separate and additional level of protection which allows the individuals to bring certain rights
to prevent the state from undermining those rights. So both exist together.

Dicey’s rule of law through cases:

Entick v Carrington: a case Dicey was aware of as pervading common law. A case in which Entick’s
house was invaded by a state official, Carrington. C had been told by a state official that he was entitled
to enter E’s house to seize papers because he might be guilty of sedition. E brought a case against C for
trespass and the court upheld the action. Unless C has a discreet legal right to enter the house, he is
considered as any other citizen and the ordinary law of the land applies to him as it applies to anybody
else. This is a very clear statement of the rule of law of the constitution.
Case of Proclamations: The King only has the power that the law gives to him. Dicey would see this
as
contrast to other legal systems. In the UK the executive only possesses power given to him by law.
Beatty v Gillbanks: The Salvation Army in Victorian times, marched against prostitution, gambling,
and drunkenness. A parallel organisation called the Skeleton Army marched in favour of these three. A
magistrate issued an order that Salvation shouldn’t march but they marched regardless. The police were
bound to keep the peace and stop the Salvation Army from marching. If the Salvation Army marched
the Skeleton Army would beat them up, the peace would be broken and the Salvation Army would be
put to prison. The police sought to prevent the Salvation Army’s legal walk to prevent the unlawful
activity of the Skeleton Army. The court held that the lawful activity of one party could not be halted to
prevent an unlawful threat. This is a strong statement of Dicey’s rule of law.

Worries about Dicey’s rule of law:

Public Order Act 1986 §11 states that any procession (marches) needs to give advance notice to the
police. The police has wide powers to impose limits on the procession. If there is serious public
disorder, serious damage to property, or serious disruption to the life of the community the procession
can be rejected. The police could say that the march of the Salvation Army would cause such distress
that it could be prevented (against the rule of law by Dicey). The statutory power creates a way around
the idea of rule of law.

Cornerhouse: The Serious Fraud Office was undertaking an investigation in British Aerospace who
had paid bribes to Saudi Arabia to secure lucrative arms deals. The Bribery Act prevented British
industries from paying bribers to foreign officials to secure contracts. An investigation was launched
and the Saudi Arabian government who did not want their activities to be searched put pressure on the
British government and said if the investigation continues security cooperation with the UK would be
ceased (no more terrorist intel would be given). The Director of Serious Fraud Office was then spoken
to by the government and ceased the investigation on grounds that it was not in the public interest.
Cornerhouse (a pressure group) brought the case to court for judicial review. Divisional Court said the
rule of law is very important and the DSFO has discretion to end investigations but only when there is
no evidence or where the cause does not justify the proceedings. The case then went to the House of
Lords. The House of Lords said that DSFO had broad discretionary power as to which investigations he
undertakes and can exercise that by taking into account different information (including threats to
national security) and it was acceptable that he talk to the government as to the nature of the risk and
this was lawful.
The law does not in a way apply to the very rich and undermines the rule of law. It implies that law is
something to be obeyed by choice and those who follow it are ‘suckers’.

Rule of Law x Parliamentary Sovereignty: People could point at the Public Order Act 1986 to show
that the statute runs contrary to Dicey’s idea of rule of law.
Dicey provides an answer to this objection by stating Parliamentary Sovereignty is a legal rule of the
constitution whereas the rule of law is a constitutional principle that speaks to how Parliament and
courts should exercise their law making power. Even though the statute may conflict with the rule of
law that is an effect of sovereignty. The rule of law is used to criticise the statutes. Sovereignty can be
used wrongly that encroaches on the rule of law.

Rule of law and Government Policy

There are administrative cases that illuminate Dicey’s rule of law. People argue that the scepticism of
broad discretion by Dicey is incompatible with a welfare state. In a welfare state officials need to be
given broad discretion to form rules but modern Administrative law is an attempt to bring Dicey’s rule
of law to the administrative realm.
Walumba Lumba: Supreme Court considered the legality of detaining foreign nationals who
completed their prison sentences before deportation. There was a published policy that regulated this
detention. The SoS decided to apply a different policy to the published policy. Lumba was detained on
the basis of an unpublished policy. The court rejected this and stated published policy had to be
followed when in conflict with unpublished policy. Majority found that Lumba had been falsely
imprisoned (echoes to Entick v Carrington). Lumba could have been prisoned under published policy
so he received no compensation since he suffered no loss. If state announces rules/publishes policy
they must be complied with. People should know what policies apply to them and cannot be
imprisoned without legal authority.

Reilly: V was compelled to work in Poundland if she wanted to keep her job seekers allowance. She
brought an action against the government on a basis of several different grounds. The important point is
the Jobseekers Act 1995 (amended by Welfare Reform Act 2005) empowered ministers to bring into
force schemes where people claiming allowance could be required to undertake work and take away
the benefit if they did not participate in the scheme in certain situations. There had to be a prescribed
description of the scheme (period/requirements/etc.) The regulations had to be specific as to what was
required of the individual. Job Seeker Allowance Regulation 2011 did not do this and restated the law,
not adding any extra detail. The case went to Supreme Court, in which Lord Neuberger said:
“Parliament in a statute requires something to be prescribed in delegated legislation, there is a
requirement that delegated legislation adds to the primary legislation. There is otherwise no point to
prescribe the matter. The Scheme of 2011 adds nothing to the Act. Description of a scheme is
important in enabling those required to participate to ascertain if requirements have been made in
accordance with Parliamentary will.” This is a strong statement of the rule of law since ministers are
required to state in detail specification before benefits are taken away. The requirements have to be
sufficiently specific to allow people to know where people stand. This also supports democracy (ability
to challenge them in Parliament) and the capacity of lawyers to critique the decision in
court. This decision meant that Reilly would receive compensation and the regulation had been an
error. The Jobseekers (Back to Work Schemes) Act 2013 retrospectively validated the past regulation
to ensure Reilly did not get the money.

Reilly No 2: Reilly said the retrospective legislation (without a pressing social need to justify it)
infringed the HRA 1998. Although Parliament is not precluded from adopting retrospective legislation
in civil law, the rule of law/fair trial precludes any legislation that prevents the court process and can
only be justified in national interest, relying on HRA Article 6 and ECtHR. Retrospectively removing
the consequences of courts is sometimes justified (Art. 6) but the State has to show compelling grounds
of general interest. Although the principles come from ECtHR they also reflect the fundamental
principles of the UK’s unwritten constitution.
The constitutional principle of the rule of law was expressly recognized in §1 of Constitutional Reform
Act 2005 which required that Parliament and executive recognize and respect the separation of powers
and abide by the principle of legality. The courts have a constitutional role of recognizing and
enforcing legality. Regardless, Reilly still did not receive compensation.
The most important thing to take away from Reilly No 2 is a strict position against retrospective
legislation. Dicey’s rule of law is upheld by the common law principle of legality and the HRA Article
6 (denying access to courts). Dicey said that the rule of law was a manifestation of the English (?)
national character.
The rule of law is about how law impacts society. A community must in majority accept the rule of
law,
accept the authority of the courts, respect the police, follow the law, and willing to engage with
officials (government). Every individual has a duty to uphold the rule of law.

RAZ
Joseph Raz’s Rule of Law:

Raz states that the rule of law should have certain qualities and should be:
1. Clear
2. Prospective
3. Stable
The rule of law should also provide for certain aspects:
4. Access to Courts
5. Executive acts within the law
6. Prosecuting authorities effective
4, 5 and 6 connect to his broader understanding of the law as a social practice. His points are necessary
in order for a community to possess legal order.
For Raz the law is characterised by its action guiding quality. These are authoritative statements of how
people should behave. If any of the elements are taken away this goal cannot be achieved.

The Rule of Law is nested within the social construct. Raz’s rule of law is initially descriptive in 1-3
(clear, prospective, stable). He states that the one good thing of the rule of law is negative liberty.
Autonomy is protected since there is awareness of how state power is exercised, even though the law in
itself be terrible and violate certain fundamental rights. This certainty is the benefit of the rule of law.
Justice is not included in Raz’s account of the rule of law because unjust rules can still make up a legal
system that follows the rule of law. The presence or absence of justice in a legal system does not mean
that it is not a working legal order.
Dicey, in contrast with Raz, presented rule of law as a principle of constitutionalism and how people
should behave. Raz believes rule of law is all about providing people the opportunity to predict their
behaviour in accordance with law.

DWORKIN

Dworkin’s account of the rule of law:

The rule of law requires the exercise of power be justified before the courts. This nests into the broader
understanding of the nature of law. It is a justification by the courts of the coercion of the law. Courts
are there to make sure that when people are coerced there is good reason for it. Legal reasoning is a
justificatory business. This flows from Dworkin’s understanding of the nature of law as a justificatory
practice.

CONCLUSION

Raz describes the rule of law within a society that possesses it. Nature of law: yes for Raz and yes for
Dworkin but not for Dicey. Dworkin thinks it is a principle of the constitution and Dicey might agree
because it is a principle that structures the operation of the constitution.
Raz would disagree.
Raz, Dicey and Dworkin would disagree that the rule of law is a legal rule; but there could be a distinct
set ofrules that could be defined as the rule of law that reflect it.
Craig provides a division between formal and substantive conceptions of the rule of law.

  On the formal side: Dicey, Raz (look at the structure and the form but don’t discuss the content
of the law)
  Substantive side: Dworkin, Allan (consider the impact of justice) Craig himself took a middle
ground.

Barber does not like this division into substantive and formal aspects because Dicey had great concern
with the content of the rule of law. A better way to divide up the rule of law is to think about the
different questions the theories answer and think of the issues in broader terms.

Turpin and Tomkins: (96-126)

The sovereignty of Parliament concern the relationship of Parliament to the law; the rule of law
concerns that of the government to the law.
The minimum element of the rule of law is that the government is subject to the law and may
exercise its power only in accordance with law. In England it is established that the use of public power
must be justified by law and not by the claims of state necessity (see Entick v Carrington). Express
legal authority must be shown for interferences with individual rights. However, if the citizen’s interest
is not supports by a legally acknowledged right, a public authority may be able to act to the detriment
of that interest without having to show specific legal authority for its action (see Malone v
Metropolitan Police Commissioner and R(Fewings) v Somerset County Council).

The rule of law is undermined if the state exercises its powers in such a way as to make it impossible,
or even very difficult, for persons affected to challenge the legality of the state’s action. It is also
undermined when the state commits or connives at breaches of the law. The government and other
public authorities cannot always be relied upon to respect the law and observe its constraints. A state
can therefore claim to uphold the rule of law only if it provides the effective means for the prevention
and redress of illegal action by those who wield public powers. So, it is a requirement of the rule of law
that there are independent courts or other agencies which will check and control the actions of public
authorities to ensure their compliance with the law. It is also a requirement of the rule of law that the
government should comply with judgments of the courts given against it.
Another element of the rule of law, that all are equal before the law is an issue that has been only
recently applied. Ministers were thought to be immune, in their official capacities, from the coercive
jurisdiction of the courts, it appeared also that there was no jurisdiction to make a finding of contempt
against a minister who disregarded a court’s orders. This stance was altered following M v Home
Office.
Regarding discretionary powers, if they are conferred in wide and unqualified terms, there is a risk
put forth by Dicey that its exercise may be infected by uncertainty, inconsistency or even perversity.
Constitutional Reform Act 2005 §1 – “This Act does not adversely affect… the existing constitutional
principle of the rule of law”
The Act does not define the existing constitutional principle of the rule of law, or the Lord Chancellor’s
existing constitutional role in relation to it and leaves it to the courts to define it when the occasion
arose.

Dicey:

Two features that characterise the political institutions of the land is the supremacy of Parliament
(deriving from the Crown) and the rule of law.

The three terms of the rule of law are:

1. 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 (there is no
exercise by persons of authority wide, arbitrary, or discretionary powers of constraints).
2. Every man, whatever his rank or condition, is subject to the ordinary law of the realm and amenable
to the jurisdiction of the ordinary tribunals.
3. The general principles of the constitution (right to personal liberty, right of public meeting, etc.) are
aresult of common law.

Dicey criticizes the Bastille in France as a symbol of lawless arbitrary power. He gives Voltaire as an
example of a person that was convicted for things he did not write. Arbitrary in this sense is a formal
concept as people are held without lawful authority or crimes are vague.
Even though in England some official positions (for example soldier or clergymen) incur legal
liabilities from which other men are exempt, they cannot escape the duties of the ordinary citizen and
the law of the realm applies to all. In contrast with England, in France officials in their official capacity
are to an extent exempted from the ordinary law of the land and from the jurisdiction of the ordinary
tribunals. In France, droit administratif and tribunaux administratif are concerned with the affairs or
disputes of the government or its servants, This does not exist in England as it is against the rule of law.
In England courts have secured rights, while in most foreign countries depend on constitutions which
can be suspended. Since the English constitution is based on the rule of law, suspension of any rights
would be revolutionary.
“The rule of law means, in the first place, the absolute supremacy or predominance of regular law as
opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative,
or even of wide discretionary authority on the part of the government. Englishmen are ruled by the law,
and by the law alone; a man may with us be punished for a breach of law, but he can be punished for
nothing else.
It means, again, equality before the law, or the equal subjection of all classes to the ordinary law of
the land administered by the ordinary law courts; the ‘rule of law’ in this sense excludes the idea of any
exemption of officials or others from the duty of obedience to the law which governs other citizens or
from the jurisdiction of the ordinary tribunals.”
In his conception of equality before the law, Dicey criticizes droit administratif, administrative law
in France that was administered by separate administrative courts declaring it rested on “ideas foreign
to the fundamental assumptions of our English common law, and especially too what we have termed
the rule of law.” He believed instead that officials and those in government should enjoy no special
exemption from obedience to the law.
A problem with Dicey’s first principle is that it underestimates the existence of the discretionary
power and its necessity for governmental power.
Dicey’s third principle means that if fundamental rights are to be protected, then the common law
technique is better than that around the continent. Bills of Rights are ineffective as they can be repealed
while the common law is entrenched.

F. A. Hayek:
Formulation of rule of law: “stripped of all technicalities this 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.”

Raz: (The Rule of Law and Its Virtue)

One of the main fallacies in the doctrine of rule of law is the assumption of its overriding
importance.
The rule of law is a political ideal which a legal system may lack or possess to a certain extent. It is
also to be insisted that the rule of law is just one of the virtues by which a legal system may be judged
and.
The broad sense of the rule of law means that people should obey the law and be ruled by it and that
people should be able to be guided by it. In its narrow sense it means the government shall be ruled by
law and be subject to it. The rule of law could be met by regimes whose laws are morally objectionable
provided they comply with the formal requirements.
If the rule of law is taken to encompass morality and substantive rights then the rule of law will
no longer be independent and instead based on a certain political theory. Hence, the rule of law
should be independent of substantive rights and seen in formal terms.
The doctrine of the rule of law derives from the intuition that the law must be capable of guiding the
behaviour of its subjects (formal principle). Mainly a supporter of the formal conception of the rule of
law and believes that human rights, equality, etc. are not requirements for conformity to the rule of law.
Deliberate disregard of the rule of law violates human dignity (treating humans as persons capable of
planning and plotting their future) but adherence to it does not guarantee it.
The rule of law is a negative virtue since the law inevitably creates a great danger of arbitrary power
and the rule of law is designed to minimise the danger created by the law itself.
Raz’s principles of the rule of law: (1-3 set standards, 4-8 guide the legal machinery to not distort the
enforcement and provide remedies in case of deviation)
1. All laws should be prospective, open, and clear.
2. Laws should be relatively stable.
3. The making of particular laws (particular legal orders) should be guided by open, stable, clear and
general rules.
4. The independence of the judiciary must be guaranteed.
5. The principles of natural justice (open and fair hearing, absence of bias, evidence presented must be
accessible to both parties) must be observed.
6. Courts should have review powers over the implementation of the other principles.
7. Courts should be easily accessible.
8. The discretion of the crime preventing agencies should not be allowed to pervert the law.
The rule of law is a necessary feature of all legal orders, and a political or constitutional principle
which guides the shaping of an entire legal order.
Allan: (Legislative Supremacy and the Rule of Law: Democracy and Constitutionalism)
The central problem of constitutional theory is devising means for the protection and enhancement of
individual human rights in a manner consistent with the democratic basis of institutions.
The constitution possesses its own harmony, in which the protection of individual liberties can
coexist with recognition of the ultimate supremacy of the democratic will of Parliament.
The rule of law’s most obvious application to constitutional theory is the requirement that the actions
of the executive, and those of every other civil authority or government official, should be justified by
law.

The substantive view of the rule of law presents it is a dynamic concept which should be employed
not only to safeguard and advance the civil and political rights of the individual in a free society, but
also to establish social, economic, educational and cultural conditions under which his legitimate
aspirations and dignity may be realised.
The failure to recognise the importance and scope of the rule of law as a juristic principle has
distorted out understanding of parliamentary supremacy and led in part to our present fears of
constitutional imbalance.
The courts are subject to the will of Parliament. They are bound to apply an Act of Parliament
whatever view the judges take of its morality or justice, or of its effect on important individual liberties
or human rights. Important freedoms are at the mercy of a temporary majority of the House of
Commons, generally manipulated by the executive government, which cannot even claim the support
of a clear majority of the electorate.
The ideal of the rule of law requires that the nature and limits of official encroachment on the
liberties of the citizen be clearly stated in advance of any action against him in the name of the state.
Therefore, the citizen can plan his life in light of his knowledge of the requirements of the law. The
rule of law requires that governmental actions in relation to the citizen be circumscribed by rules which
limit the scope of official discretion.
Formal conceptions of the rule of law are themselves based upon substantive foundations, namely
ideas of moral autonomy and the respect for the individual. It is therefore unreasonable to preserve the
dichotomy between form and substance.
In normative terms, adjudication involves the application of principles as well as rules. In descriptive
terms, the common law courts in the UK do in fact reason in this manner.
Legal systems have always distinguished between formal/procedural and substantive norms,
notwithstanding the fact that the former may be underpinned by substantive values. In order for these
broader substantive concepts to be rendered operational, it is necessary to articulate the particular
conception of liberty or equality, etc. which one believes should guide legislative and judicial
behaviour.
The rule of law is a legal principle; a substantive legal rule which is, or should be, applied by
Commonwealth courts and to be understood through examination of case law.
Craig: (Formal and Substantive Conceptions of the Rule of Law)
Formal conceptions of the rule of law address the manner in which the law was promulgated (by a
properly authorised person, in a proper manner, etc.), the clarity of the ensuing norm (sufficiently clear
to guide an individual’s conduct), and the temporal dimension of the enacted norm (prospective or
retrospective). Formal conceptions do not seek to pass judgment upon the actual content of the law.
They are not concerned with whether the law is good law or bad law as long as the formal requirements
are met. This view is supported by Raz and Dicey.
Substantive conceptions of the rule of law accept the rule of law has formal attributes but also that
certain substantive rights are based on, or derived from the rule of law. The concept is used as the
foundation of these rights, which are used to distinguish between ‘good’ laws that comply with rights
and ‘bad’ laws that do not.
Legal Positivism: in any legal system, whether a given norm is legally valid and hence whether it
forms part of the law of that system, depends on its sources, not its merits.
Dworkin distinguishes between two conceptions of the rule of law: rule book conception (the
government should never exercise power against individuals except in accordance with rules which
have not been set out in advance and made available to all) and the rights conception (citizens have
moral rights and duties with respect to one another, and political rights against the state as a whole,
these rights should be recognized in positive law so they can be enforced upon the demand of the
individual citizens through courts). The substantive view of the rule of law emphasizes that not only
should general concepts of equality,liberty, and the like be emphasized but also that their particular
conceptions be revealed. Dworkin’s rights based analysis goes on to state that the very meaning of the
rule of law will be linked with one’s definition of law itself and with the proper adjudicative role of the
judge. A positivist on the other hand would subscribe to the formal sense of the rule of law and keep it
distinct from the content of particular laws.

Barber: (Must Legalistic Conceptions of the Rule of Law Have a Social Dimension?)
Conceptions of the rule of law can be placed on two axes. First, a line can be drawn between those
conceptions that focus on questions of legal procedure, structure, and the formulation of laws, and,
alternatively, those which include social and political rights at their core. These are respectively the
legalistic and non-legalistic conceptions of the rule of law.
A further and more profound division can be detected between those theorists who regard their
conceptions as a product of legal theory and those who locate their conceptions within a broader
discipline of political philosophy.

These two divisions between legalistic and non-legalistic conceptions and between conceptions lying
in legal and political philosophy, do not map on to each other.
Under legalistic conceptions of the rule of law, Barber examines Raz’s and Dicey’s rule of law.
Within Raz’s account of legalistic conceptions advanced as an aspect of legal theory there are two
virtues. The first of these is that a virtue is demonstrated where an agent acts in the right manner for the
right reasons. Adherence to the dictates of the rule of law is a virtue where it is done out of a desire to
protect people’s autonomy. The second virtue is used in a more unusual way as signifying the essential
qualities of a thing by which its nature can be gauged. Here, the rule of law is a virtue in itself. All legal
systems must therefore comply with the principles of the rule of law to some extent, and a legal system
qua legal system is better the more it conforms.
Political theory instructs the powerful to follow the dictates of the rule of law because of the
contribution this principle normally makes to citizen’s autonomy. This is a moral virtue. In legal
theory, if a legal system is to exist it must be the case that the bulk of the laws within it are, for the
most part, clear, stable, open, and so forth. This is an internal value.
Within Dicey’s account of political theory, there exist three elements. First, individuals should not be
punished or penalised save where they had committed a distinct breach of the law. Second, all,
including state officials, were bound by the ordinary law of the land and amenable to the jurisdiction of
the ordinary tribunals. Finally, individual rights are better protected by the common law than by
constitutional guarantees.
Whereas Raz’s rule of law flows from the necessary features of the legal system, Dicey’s
conceptions of the rule of law is unambiguously a political principle that seeks to constrain the
powerful (state officials, trade unionists, and the like). Dicey’s conception of the rule of law is squarely
on the side of political theory.
Non-legalistic conceptions of the rule of law include rights which are not directly related to the
structure of law or the process of the legal system. They are social, political, and economical rights.
The common good includes the basic liberties of thought, speech, conscience and association, couples
with broader considerations of equal dignity, fair treatment, and respect for citizens.
A legal system must have rules that succeed in limiting both the physical and economic ability of the
powerful to exact retribution on those who attempt to assert their legal rights. It also requires a minimal
level of education amongst its citizens.

Bingham: (The Rule of Law)

The core of the existing principle of the rule of law is that all persons and authorities within the State,
whether public or private, should be bound by and entitled to the benefit of laws publicly and
prospectively promulgated and publicly administered in the courts.
Divided the rule of law into eight sub rules:
1. The law must be accessible and, so far as possible, intelligible, clear and predictable.
2. Questions of legal right and liability should ordinarily be resolved by application of the law and not
the exercise of discretion.
3. The laws of the land should apply equally to all, save to the extent that objective differences justify
differentiation.
4. The law must afford adequate protection of human rights.
5. Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil
disputes which the parties themselves are unable to resolve (legal redress should be an affordable
commodity).
6. Ministers and public officials at all levels must exercise the powers conferred on them reasonably, in
good faith, for the purpose for which the powers were conferred and without exceeding the limits of
such powers.
7. Adjudicative procedures provided by the state should be fair.
8. The existing principle of the rule of law requires compliance by the state with its obligations in
international law.

R (Purdy) v Director of Pubic Prosecutions [2009] UKHL 45

Related with the clarity of law and the circumstances that the DPP uses to prosecute under the
Suicide Act 1961 §2(1) since the ECHR Article 8 requires accessibility and foreseeability in
assessing
how prosecutorial discretion was likely to be exercised. (see also: Introduction to the Constitution
of the UK)
- About a claimant suffering from a disease  and contemplating suicide should her life start to
become unbearable  asking the DPP to clarify circumstances in which prosecution will be brought
where the person’s suicide was assisted like the issue was on whether the DPP was required to
mention the offence specific policy of assisted suicide wrt Suicide Act 1961 s 2
- Ruled that the DPP (respondent) was supposed to promulgate (proclaim) a policy
- Lord Hope & Hale: Of course circumstances of the case can always change  but the DPP still has
to indicate in advance what his general approach towards the exercise of his discretion regarding the
prosecution of this case.  a custom bult policy statement indicating the various factors for and
against prosecution
- SC = HOL
-
R (Corner House) v Director of the Serious Fraud Office [2008] UKHL 60
The Director of the Serious Fraud Office discontinued a criminal investigation into British
Aerospace (BAe), who was the main contractor for an arms deal between the UK and Saudi Arabia in
which there existed allegations of bribery. The government of Saudi Arabia had made a threat that if
the investigations were not halted the Saudis would halt intelligence cooperation with the UK. This, it
was feared, would be so contrary to British national security that it would jeopardise ‘British lives on
British streets’. The Divisional Court held that it was a breach of the rule of law for an independent
prosecutor to have yielded to political and diplomatic threats. The Divisional Court ruled that the
decision was unlawful not because he had taken into account the considerations of national security but
because he had surrendered to them. Steps instead should have been taken to resist the threat. It was
held that “submission to a threat is lawful only when it is demonstrated to a court that there was no
alternative course open to the decision maker.” The Divisional Court took into account the rule of law
when making this decision. The court considered that it had itself been affronted by the Saudis’ threat,
as that threat had been directed not only at the UK’s political, diplomatic and security interests, but also
at the independence and integrity of its legal system.

The House of Lords unanimously overturned the decision of the Divisional Court. Instead of asking
whether the Director had done everything to avoid acceding to the threat, the question was whether in
deciding that the public interest in pursuing an important investigation into alleged bribery was
outweighed by the public interest in protecting the lives of British citizens, the Director made a
decision outside the lawful bounds of the discretion entrusted to him by Parliament. The only question
that concerned the House of Lords was the lawfulness to take national security and public safety
concerns into account.
Ahmed and others v Her Majesty’s Treasury [2010] UKSC 2
Concerned with the lawfulness of two Orders in Council that had been made under the United
Nations Act 1946. The Orders, known as the Terrorism Order (TO) and the Al-Qaida Order (AQO),
had been made in order to comply with requirements as to the freezing of terrorist assets laid down in a
series of resolutions of the UN Security Council. The TO and the AQO conferred on the Treasury
broad powers to freeze all financial and economic resources of persons reasonably suspected to be
involved with terrorism.
The consequences of the exercise of these powers were described by the Supreme Court as “so drastic
and so oppressive” that the persons affected were to be considered “effectively prisoners of the state”.
United Nations Act 1946 §1 confers upon ministers the power to make such Orders in Council as
appear “necessary or expedient” for the purpose of implementing in the UK the requirements of
international law as laid down by the UN. The Treasury relied on this power in making the TO and the
AQO.
The Supreme Court, sitting in a panel of seven. Ruled that the general words of the 1946 Act did not
confer upon ministers the power to make Orders in Council that overrode individuals’ fundamental
rights.
The court applied the rule in Simms that general legislative provisions need to be read subject to
fundamental rights. The AQO was replaced with a new Order in Council based on the European
Communities Act 1972 and the TO was replaced with the Terrorist Asset Freezing etc. Act 2010.
“…nobody should conclude that the result of these appeals constitutes judicial interference with the
will of Parliament. On the contrary it upholds the supremacy of Parliament in deciding whether or not
measures should be imposed that affect the fundamental rights of those in this country.”
Walumba Lumba v Secretary of State for the Home Department [2011] UKSC 12
Concerned with the legality of detaining foreign nationals who had completed prison sentences for
criminal offences, pending their deportation.
Held that their detention was unlawful since the policy under which they had been detained had
not been published and was inconsistent with published policy. The tort of false imprisonment was
satisfied since the appellants had been detained and their detention had not rested on a lawful decision.
However, since the appellants could have been detained lawfully for this period under the published
policy, they were entitled only to very little damages.

It is lawful for the Secretary of State to operate a policy which sets out the practice that she will
normally follow in deciding whether or not to detain FNPs pending their deportation. However, as
regards the application of the statutory power to detain, it is unlawful in public law for the
Secretary of State to maintain an unpublished policy which is inconsistent with her published
policy and which applies a near blanket ban on the release of FNPs. A government department that
adopts and applies a policy which is contrary to its published policy is acting unlawfully.  the
executive trying to circumvent the law again
R (Reilly) v Secretary of State for Work and Pensions (No. 1) [2013] UKSC 68
Concerned with the legality of the Department for Work and Pensions’ controversial back to work
schemes which require benefit claimant to undertake unpaid work in order to continue receiving
payments. The challenge relied upon the European Convention on Human Rights Article 14 which
prohibits slavery, servitude and forced labour.
§17A of the Jobseeker’s Act 1995 authorises the Secretary of State to make regulations which
require that in prescribed circumstances to participate in specific work or work related schemes for
a
determined period.
It was held that the regulations set by the Department did not comply with §17A because they did
not contain a sufficient prescribed description of the schemes --- no legal certainty. Legal certainty
is
important when a statute provides for the making of regulations which significantly impact people’s
lives.
Since the work was directly related to benefits, the conditions did not fall under Article 14 of ECHR.
Where regulations may be made to prescribe a description of a type of benefits scheme, those
regulations must actually contain a description which goes beyond that in the primary legislation.

Malone v Metropolitan Police Commissioner [1979] Ch 344

Concerned with tapping by the government of Malone’s phone. Malone’s telephone had been tapped
in order to hear and record his conversations. He was then charged with handling stolen property. The
tapping had not been done with the authority of a warrant issued by the Secretary of State. Malone
brought
proceedings on grounds that the tapping was authorised neither by common law or statute.
“England, it may be said, is not a country where everything is forbidden except what is expressly
permitted: it is a country where everything is permitted except what is expressly forbidden.”
“…it can lawfully be done simply because there is nothing to make it unlawful.”
The court held that it was not unlawful for the government to tap Malone’s phone. Malone then took
his case to the ECtHR which ruled that Article 8 of the ECHR had been infringed. The ECtHR held
that “the minimum degree of legal protection to which citizens are entitled under the rule of law in a
democratic society is lacking.”
According to the principle, the act of public authority will be upheld if it is in accordance with law in
a sense that it does not infringe any. The administrative is treated like a private individual, who is free
to do whatever the law does not prohibit.

R (Unison) v Lord Chancellor [2017] UKSC 51

Employment tribunal – Fees. The Employment Tribunals and the Employment Appeal Tribunal Fees
Order 2013, SI 2013/1893, which allowed fees to be imposed in respect of proceedings in employment
tribunals and the Employment Appeal Tribunal was unlawful, both at common law and under European
Union law, and indirectly discriminatory, because it effectively prevented access to justice. So held the
Supreme Court in allowing the appellant trade union's appeal in respect of its unsuccessful judicial
review challenge concerning the Order.
- challenges the lawfulness of the Fees Order, which was made by the Lord Chancellor in the
exercise of statutory powers.
- If you do the fees order---}make ppl pay to go to ET----} The Review Reportalso reported a greater
fall in type A claims, which tend to be of lower value, than in type B claims.
- Lord Reed: Furthermore, it is not only where fees are unaffordable that they can prevent access to
justice.
They can equally have that effect if they render it futile or irrational to bring a claim. As explained
earlier, many claims which can be brought in ETs do not seek any financial award: for example, claims
to enforce the right to regular work breaks or to written particulars of employment.
- * discuss more of the other side by Lord Chancellor
- determined that the Lord chancellor acted disproportionately
R (Fewings) v Somerset County Council [1995] 1 All ER 513

Countered the principle in Malone: “For private persons, the rule is that you may do anything you
choose which the law does not prohibit… But for public bodies the rule is opposite, and so od another
character altogether. It is that any action to be taken must be justified by positive law… The rule is
necessary in order to protect the people from arbitrary interference by those set in power over them.”