House of Lords - Constitution

Select Committee on Constitution Sixth Report

APPENDIX 5: PAPER BY PROFESSOR PAUL CRAIG: THE RULE OF LAW

1. Introduction

This paper seeks to provide guidance concerning the meaning of the 'rule of law', in the light of section 1 of the Constitutional Reform Act 2005, which makes explicit reference to that concept.

A 'health warning' is in order for anyone venturing into this area: a cursory glance at the index of legal periodicals revealed 16,810 citations to books and articles concerned with the rule of law, and that is certainly an underestimation, since many articles discuss the concept in ways that might not necessarily be picked up by the search engine and the number only covers legal material.

There is considerable diversity of opinion as to the meaning of the rule of law and the consequences that do and should follow from breach of the concept. I will nonetheless attempt to identify as objectively as possible different senses of the rule of law.

2. Dicey's Conception of the Rule Law

Modern conceptions of the rule of law will be considered below. It would however be odd not to advert to Dicey's conception,[174] given the prominence that it has had in the UK. It should nonetheless be realised that his conception of the rule of law was ambiguous in certain respects.

Dicey's first principle of the rule of law was 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. In this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint'.

The first sentence requires that laws under which people are condemned should be passed in the correct legal manner and that guilt should only be established through the ordinary trial process. This is an important principle, although it should be noted that nothing here speaks to the content of the laws which an individual will have to face when taken before the courts. The meaning of the second sentence is more problematic. The word 'arbitrary' could connote a clear law, which was properly enacted by Parliament, but which might nonetheless be regarded as arbitrary if it was thought to infringe certain fundamental rights, or if it entailed excessive punishment. The word 'arbitrary' could alternatively be used to describe a law passed in the correct legal manner, but where it was very vague or unclear, with the result that individuals had no real idea how to plan their lives in the light of the relevant legal rule. This sense of arbitrariness is independent of whether the content of the legislation was just or unjust.

Dicey's second principle of the rule of law concerns equality: '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'.

This formulation is concerned primarily with equal access to the courts, not with the nature of the rules which individuals find when they get there.[175] It is true that Dicey was explicitly against officials being accorded any special privileges, but beyond this Dicey's second principle does not take one very far. He showed little concern with the role of law in deciding whether different rules applicable to different groups were defensible on the ground that that there was some rational justification for the difference in treatment.

Dicey's third principle was that the unwritten constitution in the UK could be said to be pervaded by the rule of law because rights to personal liberty, or public meeting resulted from judicial decisions, whereas under many foreign constitutions such rights flowed from a written constitution.

This third limb of the rule of law is ambiguous. It might be read to mean that a society must possess certain individual rights if it is to conform to the rule of law. The alternative reading was that if you wished to protect such rights then the common law technique was better than that employed on the continent. Dicey dealt in detail with the precarious protection of rights on the continent, where constitutions enshrining rights would often be abrogated at the stroke of the pen or the point of a sword. He felt that in the UK, where individual rights were the result of numerous judicial decisions indicating when the individual was at liberty to speak freely etc, it would be considerably more difficult for an authoritarian regime to sweep these rights aside.

3. Modern Conceptions of the Rule of Law

The Diceyan view of the rule of law was therefore ambiguous in certain respects, and similar uncertainties surround the historical meaning of the phrase 'government of laws, not of men'.

The modern literature on the rule of law is, as noted above, extensive and diverse. A number of different meanings of the rule of law can nonetheless be identified.

(a) The Rule of Law and Lawful Authority

A core idea of the rule of law to which all would subscribe is that the government must be able to point to some basis for its action that is regarded as valid by the relevant legal system. Thus in the UK such action would commonly have its foundation in statute, the prerogative or in common law power. The relevant measure would then have to be made by the properly authorised person or institution, in the properly authorised manner

If the government cannot provide a legal foundation for its action then the UK courts would regard the action as unlawful, since there would be no lawful authority for it.

This core meaning of the rule of law tells one nothing as to the nature of the challenged governmental action. The government might be seeking to achieve some benign objective, or it might be attempting to do something that most would regard as undesirable. This is irrelevant for the purposes of the present inquiry. The measure would be equally contrary to the rule of law if the government could not point to some basis for its action that would be regarded as valid by that legal system.

(b) The Rule of Law and Guiding Conduct

The meaning of the rule of law considered in the preceding section is important, but limited. Any law properly passed by Parliament would meet the rule of law defined in this manner. Thus the fact that laws should be passed in the correct legal manner is a necessary facet of the rule of law, but it is not sufficient.

It is for this reason that most would agree that the rule of law demands more than this. A further important aspect of the rule of law is that the laws thus promulgated should be capable of guiding ones conduct in order that one can plan ones life.

It is from this general precept that Raz deduced a number of more specific attributes that laws should have in order that they could be said to comply with the rule of law.[176] All are related to the idea of enabling individuals to be able to plan their lives. The 'list' includes the following: that laws should be prospective, not retrospective; that they should be relatively stable; that particular laws should be guided by open, general and clear rules; that there should be an independent judiciary; that there should be access to the courts; and that the discretion which law enforcement agencies possess should not be allowed to undermine the purposes of the relevant legal rules.

The rule of law in the sense articulated here could be met by regimes whose laws were morally objectionable, provided that they complied with the formal precepts of the rule of law. It is equally the case that not all laws passed by a democratic regime will necessarily comply with the rule of law.

The rule of law on this view is essentially a negative value, as Raz himself admits. Given that the law can empower the state to do all manner of things the rule of law minimises the danger created by the law itself. It does so by ensuring that whatever the content of the law, at least it should be open, clear, stable, general and applied by an impartial judiciary.

It would however be mistaken not to recognise the more positive side of the rule of law when viewed in this manner. Even if the actual content of the law is morally reprehensible, conformity to the rule of law will often be necessary to ensure that individuals actually comply with the demands which the law imposes.

It is also important to recognise, as Raz emphasises, that the rule of law in the above sense is only one virtue of a legal system, and may have to be sacrificed to attain other desired ends. We may feel that the rule of law virtues of having clear, general laws should be sacrificed if the best or only way to achieve a desired goal is to have more discretionary, open-textured legal provisions. This may be so where it is not possible to lay down in advance in the enabling legislation clear rules in sufficient detail to cover all eventualities. Modifications to the rule of law in this manner are not somehow forbidden or proscribed. Given that it is only one virtue of a legal system it should not prevent the attainment of other virtues valued by that system.

It is moreover important to be clear as to the consequences of breach of the rule of law in the sense considered in this section. The fact that a law is vague or unclear, and that it therefore provides little by way of real guidance for those affected by it, will not lead to a statute being invalidated in the UK. The courts may well interpret such a statute narrowly, in favour of the individual in such circumstances. They might also read it down pursuant to the Human Rights Act 1998, if the particular statute would otherwise infringe rights derived from the European Convention on Human Rights. If the courts felt unable to read it down, they could issue a declaration of incompatibility under the HRA, and the matter would be sent back to Parliament for reconsideration. The courts therefore have considerable interpretive techniques at their disposal to ensure that legislation that fails to meet the requirements of the rule of law set out above is construed narrowly in favour of the individual. This does not alter the fact that UK courts have not traditionally exerted power to invalidate an Act of Parliament on such grounds.

The matter is different if the provision that fails to comply with the rule of law is something other than a statute. There is nothing to prevent the courts from invalidating other measures, whether they take the form of delegated legislation, individual ministerial decisions, acts of local authorities or decisions of agencies. If such a measure fails to comply with the requirements of the rule of law it is always possible for the courts to use one of the principles of judicial review to annul the measure. Thus if a minister purports to make a measure retrospective the courts will require express authorisation from the enabling statute, or something closely akin thereto, before they would be willing to accept that the minister's powers extended this far.[177] Similarly, if the contested ministerial measure was very vague or unclear the courts would have a number of options at their disposal. They might decide that this was not consistent with the primary legislation; that it should be annulled under section 6 of the HRA; that the vagueness of the measure was indicative that the minister was acting for improper purposes; or that the challenged measure was an unreasonable exercise of the discretionary power vested in the minister.

Many would subscribe to the analysis presented above, although they might well disagree either as to its application in any particular instance, or as to whether the rule of law values should be 'sacrificed' to attain some other desirable goal.

There have however been more radical challenges by those who argue that the formal conception of the rule of law was always a mask for substantive inequalities in power, and that in the modern day this formal conception is in any event increasingly unattainable.[178]

A key issue is whether the rule of law should encompass more than the formal conception presented in this section. The contending arguments are complex, but the essence of the disagreement can be presented as follows.

The rule of law as presented thus far is not concerned with the actual content of the law, in the sense of whether the law is just or unjust, provided that the formal precepts of the rule of law are themselves met. To put the same point in another way, it is necessary on this view to consider the content of the law in order to decide whether it complies with the precepts of the rule of law concerning clarity, generality, non-retrospectivity etc, but provided that it does so comply then that is the end of the inquiry.

The rationale for restricting the rule of law in this manner is as follows.[179] We may all agree that laws should be just, that their content should be morally sound and that rights should be protected within society. The problem is that if the rule of law is taken to encompass the necessity for 'good laws' in this sense then the concept ceases to have an independent function. There is a wealth of literature devoted to the discussion of the meaning of a just society, the nature of the rights which should subsist therein, and the appropriate boundaries of governmental action. Political theory has tackled questions such as these from time immemorial. To bring these issues within the rubric of the rule of law would therefore rob this concept of an independent function. Laws would be condemned or upheld as being in conformity with, or contrary to, the rule of law when the condemnation or praise would simply be reflective of attachment to a particular conception of rights, democracy or the just society. The message is therefore that if you wish to argue about the justness of society do so by all means. If you wish to defend a particular type of individual right then present your argument. Draw upon the wealth of literature which addresses these matters directly. It is however on this view not necessary or desirable to cloak the conclusion in the mantle of the rule of law, since this will merely reflect the conclusion which has already been arrived at through reliance on a particular theory of rights or the just society.

(c) The Rule of Law, Justice and Accountable Government

The view presented above has however been challenged. Those who support the opposing view accept that the rule of law has the attributes mentioned in the previous section, but they argue that the concept has more far-reaching implications. Certain rights are said to be based on, or derived from, the rule of law. The concept is used as the foundation for these rights, which are then used to evaluate the quality of the laws produced by the legislature and courts.

It has also been argued that the rule of law provides the foundation for the controls exercised by the courts over governmental action through judicial review. In this sense the rule of law is expressive of how the state ought to behave towards individuals in society. The rule of law is said to demand that governmental action conforms to precepts of good administration developed through the courts, this being an essential facet of accountable government in a democratic society. The constraints imposed on government through judicial review are in part procedural and in part substantive. The range of these principles varies, but normally includes ideas such as: legality, procedural propriety, participation, fundamental rights, openness, rationality, relevancy, propriety of purpose, reasonableness, equality, legitimate expectations, legal certainty and proportionality. There has been a vibrant academic debate as to whether such principles must be legitimated by reference to legislative intent. There is nonetheless general agreement that it is the courts that have developed the principles of judicial review over the past 350 years.

This general view has been advanced by a number of writers and judges, although the precise detail of their analyses differ.

Thus Dworkin has argued forcefully that subject to questions of 'fit', the courts should decide legal questions according to the best theory of justice, which is central to the resolution of what rights people currently possess.[180] According to this theory, 'propositions of law are true if they figure in or follow from the principles of justice, fairness and procedural due process that provide the best constructive interpretation of the community's legal practice'.[181] It is integral to the Dworkinian approach that, subject to questions of fit, the court should choose between 'eligible interpretations by asking which shows the community's structure of institutions as a whole in a better light from the stand-point of political morality'.[182] On this view an individual will have a right to the legal answer which is forthcoming from the application of the above test.

Dworkin accepts the formal idea of the rule of law set out above, labelling this the 'rule book' conception. This requires that the government should never exercise power against individuals except in accordance with rules which have been set out in advance and made available to all.[183] Such values feature in any serious theory of justice.[184] However as Dworkin notes, this says little if anything about the content of the laws which exist within a legal system. Those who restrict the rule of law in this manner care about the content of the law, but regard this as a matter of substantive justice, which is 'an independent ideal, in no sense part of the ideal of the rule of law'.[185]

Dworkin argues that we should however also recognise a rights-based conception of the rule of law. On this view citizens have moral rights and duties with respect to one another, and political rights against the state. These moral and political rights should be recognised in positive law, so that they can be enforced by citizens through the courts. The rule of law on this conception is the ideal of rule by an accurate public conception of individual rights. In the words of Dworkin, this view of the rule of law 'does not distinguish, as the rule book conception does, between the rule of law and substantive justice; on the contrary it requires, as part of the ideal of law, that the rules in the book capture and enforce moral rights'.[186] It does not mean that this conception of the rule of law is consistent with only one theory of justice or freedom. There is no such argument. It does mean that it is not independent of the particular theory of justice, or vision of freedom, which constitutes its content at any point in time.

Similar themes have been advanced by Sir John Laws, writing extra-judicially. In an important series of articles he articulated the role of the courts in the protection of fundamental rights.[187] The detailed nature of the argument is not of immediate concern to us here. Suffice it to say for the present that Sir John Laws presented an essentially rights-based conception of law and the role of the judge in cases involving fundamental rights. He posited a higher order law which was binding on the elected Parliament, with the courts as the guardian of both fundamental individual rights, and what may be termed structural constitutional rights.[188] The thesis is premised on a particular conception of liberalism and individual autonomy, with a divide drawn between positive and negative rights. The rule of law is held to encompass an attachment to freedom, certainty and fairness. The first of these elements is the substantive component of the rule of law, while the second and the third bring in the more traditional attributes of the formal rule of law.[189]

The important recent lecture by Lord Bingham on the rule of law is also relevant in this regard, more especially because it was given against the background of the Constitutional Reform Act 2005.[190] Lord Bingham articulates eight principles that comprise the rule of law. Certain of these principles address the more formal dimensions of the rule of law. These include the idea that the law must be accessible, and so far as possible, intelligible, clear and predictable; that questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion; and that means should be provided for resolving without prohibitive cost or inordinate delay bona fide civil disputes which the parties themselves are unable to resolve.

It is however clear that Lord Bingham considers the rule of law as extending beyond these basic precepts. He regards it as including the central idea that the laws of the land should apply equally to all, save to the extent that objective differences justify differentiation, and that it demands that the law must afford adequate protection for fundamental rights. Lord Bingham expressly confronts the objection advanced by Raz to the inclusion of fundamental rights within the rubric of the rule of law, but disagrees with him in the following terms.[191]

A state which savagely repressed or persecuted sections of its people could not in my view be regarded as observing the rule of law, even if the transport of the persecuted minority to the concentration camp or the compulsory exposure of the female children on the mountainside were the subject of detailed laws duly enacted and scrupulously observed. So to hold would, I think, be to strip the existing constitutional principle affirmed by section 1 of the 2005 Act of much of its virtue and infringe the fundamental compact which … underpins the rule of law.

It is equally clear that Lord Bingham views the principles of judicial review as having their foundation in the rule of law. Thus he states that 'ministers and public officers 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',[192] and 'adjudicative procedures provided by the state should be fair'.[193]

Jowell has also articulated a view of the rule of law, which has both a formal and a substantive dimension.[194] He accepts that one must be careful about equating the rule of law with the substance of particular rules. He accepts also that a significant part of the rule of law is concerned with procedure or form as opposed to substance. Jowell does however believe that the rule of law has a substantive dimension. He perceives the rule of law as a principle of institutional morality and as a constraint on the uninhibited exercise of government power. The practical implementation of the rule of law takes place primarily through judicial review. Its substantive dimension is manifest in the judiciary's willingness to strike down administrative or executive action if it is unreasonable, arbitrary or capricious.

Allan's interpretation of the rule of law also contains an admixture of formal and substantive elements.[195] He argues that we should go beyond the formal conception of the rule of law, but that we should stop short of regarding the rule of law as the expression of any particular theory of substantive justice. The rule of law on this view does not entail commitment to any particular vision of the public good or any specific conception of social justice, but does require that all legal obligations be justified by appeal to some such vision. The rule of law should embrace, in addition to its formal attributes, ideals of equality and rationality, proportionality and fairness, and certain substantive rights. These are said to constitute central components of any recognisably liberal theory of justice, while leaving the scope and content of the rights and duties which citizens should possess largely as a matter for independent debate and analysis. Formal equality is to be supplemented by a more substantive equality, which requires that relevant distinctions must be capable of reasoned justification in terms of some conception of the common good. Allan's theory also embraces certain substantive rights, namely freedoms of speech, conscience, association, and access to information. It is recognised that there will be other rights within a liberal polity, which should be faithfully applied, but these are not regarded as a constituent part of the rule of law.

It should be recognised that any approach of the kind under examination will require some choice as to what are to count as fundamental rights, and the more particular meaning ascribed to such rights. This choice will reflect assumptions as to the importance of differing interests in society. This is unavoidable. It is of course true that any democracy to be worthy of the name will have some attachment to particular liberty and equality interests. If, however, we delve beneath the surface of phrases such as liberty and equality then significant differences of view become apparent even amongst those who subscribe to one version or another of liberal belief. This leaves entirely out of account the issue as to how far social and economic interests ought to be protected. It also fails to take account of other visions of democracy, of a communitarian rather than liberal nature, which might well interpret the civil/political rights and the social/economic rights differently. It is therefore neither fortuitous, nor surprising, that in other common law systems which possess constitutionally enshrined rights, such as the United States and Canada, there is considerable diversity of opinion even amongst those who support a rights-based approach, as to whether this should be taken to mean some version of liberalism, a pluralist model, or a modified notion of republicanism.

This point is equally true of ideas such as legality, rationality, participation, openness, proportionality, procedural fairness and the like, which can be given interpreted differently depending upon the more general scheme into which they are to fit.

The consequences of breach of the rule of law in the sense considered within this section should also be addressed. It is important, as when discussing other versions of the concept, to distinguish between the consequences of breach of the rule of law in relation to primary statute and in relation to other measures.

The short answer in relation to a primary statute that violates the rule of law is as follows. The fact that a statute does not conform to this conception of the rule of law does not in itself lead to its invalidation. The UK courts have not traditionally exercised the power of constitutional review to annul primary statutes for failure to conform to fundamental rights, or other precepts of the rule of law that constitute the principles of judicial review. This proposition must nonetheless be qualified in three ways.

First, there are statements by judges countenancing the possibility that the courts might refuse to apply an Act of Parliament in certain extreme circumstances. The examples tend to be of (hypothetical) legislation that is morally repugnant, or of legislation through which Parliament seeks to re-order the constitutional structure by abolishing judicial review, by making illegitimate use of the Parliament Acts or by extending very considerably the life of a current Parliament. It should moreover be recognised that the case law authority for the traditional proposition that courts will not invalidate or refuse to apply statute is actually rather thin. There are to be sure many judicial statements extolling the sovereignty of Parliament, but they are principally just that, judicial statements rather than formal decisions. Insofar as there are formal decisions that could be said to be based on the traditional proposition, the facts of such cases were generally relatively innocuous. They were a very long way from the types of case where courts might consider it to be justified to refuse to apply a statute, which also means that such cases could be readily distinguished should a court feel minded to do so.

Secondly, one who subscribes to the version of the rule of law discussed in this section might well argue that courts should generally exercise the ultimate power to invalidate statute for failure to comply with constitutionally enshrined rights, or with rights that are regarded as fundamental or foundational even where they are not formally enshrined in a written constitution. Dworkin is a prominent exponent of this view. The literature on this topic is vast, with the debate for and against such judicial power being replayed in successive academic generations.

Thirdly, courts or judges who subscribe to the conception of the rule of law discussed in this section have in any event powerful interpretive tools at their disposal through which to read legislation so that it does not violate fundamental rights or other facets of the rule of law. Thus even prior to the Human Rights Act 1998, the courts made it clear through the principle of legality that statutes would be read so as to conform to such rights. If Parliament intended to infringe or limit fundamental rights then this would have to be stated expressly in the legislation, or be the only plausible reading of the statutory language. Legislation was therefore read subject to a principle of legality, which meant that fundamental rights could not be overridden by general or ambiguous words. This was, said Lord Hoffmann, because there was too great a risk that the full implications of their unqualified meaning might have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts would therefore presume that even the most general words were intended to be subject to the basic rights of the individual. Parliament had, therefore, to squarely confront what it was doing and accept the political cost. An interpretive approach is clearly evident once again in the Human Rights Act 1998, section 3, which provides that 'so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights'. Section 3 does not, however, affect the validity, continuing operation or enforcement of any incompatible primary legislation. Where a court is satisfied that primary legislation is incompatible with a Convention right then it can, pursuant to section 4 of the HRA, make a declaration of that incompatibility.

The consequence of breach of the rule of law in relation to measures other than primary statute is more straightforward. Insofar as the rule of law is regarded as the foundation of the principles of judicial review then it follows that breach of the rule of law, manifested through breach of one of the more particular principles of judicial review, can lead to annulment of the measure. This says nothing about whether the judicial decision will be controversial or not. The great many judicial review decisions generate no political controversy, but there will inevitably be instances where Parliament, or more usually the relevant minister, feels that the court's judgment was 'wrong' in some way. There will more generally be wide-ranging academic debate about the principles of judicial review and the way in which they are applied in particular cases.

It is fitting to conclude this paper by reverting to Lord Bingham's lecture, the catalyst for which was the statutory mention of the rule of law in the Constitutional Reform Act 2005, section 1. The importance of the interpretive tools used by courts is apparent once again in the following extract.[196]

[T]he statutory affirmation of the rule of law as an existing constitutional principle and of the Lord Chancellor's existing role in relation to it does have an important consequence: that the judges, in their role as journeymen and judgment-makers, are not free to dismiss the rule of law as meaningless verbiage, the jurisprudential equivalent of motherhood and apple pie, even if they were inclined to do so. They would be bound to construe a statute so that it did not infringe an existing constitutional principle, if it were reasonably possible to do so. And the Lord Chancellor's conduct in relation to that principle would no doubt be susceptible, in principle, to judicial review.

174 The Law of the Constitution (10th ed, 1959). Back

175 G. Marshall, Constitutional Theory (Clarendon, 1971), p 137. Back

176 'The Rule of Law and its Virtue' (1977) 93 LQR 195. Back

177 If there were express authorisation in the primary statute then it might be challenged under the HRA. Back

178 R. Unger, Law in Modern Society (Free Press, 1976), pp 176-181, 192-223. Back

179 Raz, n.3, 196. Back

180 R. Dworkin, Law's Empire (Fontana, 1986). Back

181 Ibid. p 225. Back

182 Ibid. p 256. Back

183 R. Dworkin, A Matter of Principle (1985), pp 11-12. Back

184 Ibid. pp 12-13. Back

185 Ibid. p 11. Back