The Rule of Law and its Underlying Values

Introduction

Despite the uncertainty attached to the precise definition of the Rule of Law it is, in the UK, accepted
as never before as one of the fundamental principles of our unwritten democratic constitution. It is
frequently invoked by the courts as a standard by which to judge whether power has been abused. It
is engaged as a yardstick by which to assess the democratic validity of government proposals. Senior
judges have very recently devoted extra-judicial speeches to elaborating the content of the Rule of
Law. It has even received statutory recognition in the Constitutional Reform Act 2005, the first section
of which states that that Act does not adversely affect ‘the existing constitutional principle of the rule of
law’. Most significantly, some of our judges have recently suggested that Dicey’s hierarchy of
principle, with the Rule of Law playing second-fiddle to PS might be changing, and that ‘the rule of law
enforced by the courts is the ultimate controlling factor on which our constitution is based.’ (Lord
Hope, obiter, in Jackson)

Dicey’s Rule of Law: Its Critics and Supporters

According to Dicey, the Rule of Law has at least three meanings

1. Individuals ought not to be subjected to the power of officials wielding wide discretionary
powers.
2. It entails the ‘equal subjections’ of all classes to one law administered by the ordinary courts.
3. It expresses the fact that there is here no separate written constitutional code, and that the
constitutional law is ‘the result of the judicial decisions determining the rights of private
persons in particular cases brought before the courts’

– Dicey’s views came under much criticism from the late 1920s onwards. (2) and (3) first and
later on even (1) especially after WW2, there was a recognition that wider discretion was
inevitable in an increasingly complex state
– Despite this, Dicey’s views refused to die and in the 60s to 70s and, there were those that
claimed (1) was bad in relation to the secret formula benefits were given on for example or
the way in which individuals were displaced from their homes without consultation by
programmes for urban redevelopment

The Values Underlying the Rule of Law

• Dicey’s values have been criticized but remain a compelling idea, although variously
interpreted
• Some see the Rule of Law as embodying formal qualities in Law (stability, access to an
impartial judiciary etc...)
• Others criticize that view. Dworkin has called it the ‘rulebook conception’ of the Rule of Law
and prefers the ‘rights conception’ under which legal rules contain inherent moral content. (on
the basis that positivists contend that even Nazi laws must be regarded as law)
• They have different aims however. Dworkin is seeking a general theory of law, and Dicey is
seeking a general principle of how power should be deployed by government in a democracy.
• However, is Dicey’s RoL really wholly formalistic and without substantive content? To answer
this, we need to consider the values underlying Dicey’s RL.

Legality

1. The law must be followed (speaks to both those expected to follow the law and those
expected to implement it)
2. In so far as legality addresses the actions of public officials, it requires also that they act
within the powers that have been conferred upon them.
Certainty

• Dicey was less concerned that laws were ‘harsh’ than that they be known. Certainty rather
than substantive fairness, was the key value.
• Per Maitland (Dicey supporter) ‘Known general laws, however bad, interfere less with
freedom than decisions based on no previously known rule’

Consistency

• There is an aspect of substantive equality in this aspect of the Rule of Law; as Dicey says, the
highest official will be treated similarly to everyone else. The extent to which substantive
equality, as well as formal equality, is contained within the Rule of law will be considered
further below

Accountability

1. Rules provide a published standard against which to measure the legality of official action
2. The actual process of making rules and their publication generates public assessment of the
fidelity of the rule to legislative purpose (e.g. the process of devising a points system for
housing allocation thus forces the official into producing a formal operational definition of
purpose.
3. The process of making rules, as well as the rules themselves, may generate scrutiny and
appraisal that make officials subject to assessment on the basis of fidelity to the purpose of
the governing scheme

Efficiency

Due Process and Access to Justice

The substantive dimension of this value emerges when we consider that it endorses the notion that
every person is entitled to be treated with due regard to the proper merits of their cause. Failure to
provide that treatment diminishes a person’s sense of individual worth and impairs their dignity. The
right to due process extends to concern that individuals should not have decisions made about their
vital interest without an opportunity to influence the outcome of those decisions And it requires
restrictions on rights, liberties, and interests to be properly justified.

The Limits of the Rule of Law’s Values

• The benefits of rules – their objective, even-handed features – are opposed to other
administrative benefits, especially those of individual treatment and responsiveness.
• Our administrative law recognises this through the principle against the fettering of discretion.
○ E.g. where the zoning map in effect creates a series of rules about what can be done
on the land, this is greatly softened by the fact that officials take into account the
formal plan but have the discretion to take “other material considerations” into
account.
• There is some discretion in the enforcement of rules. E.g. the prosecution of someone barely
speeding for an emergency makes no sense in furthering the goal of preventing unsafe
driving.
• Thus there is no doubt that some of the twentieth century critics of Dicey’s Rule of Law were
right that discretionary power is often desirable and, in a complex modern state, inevitable.
• As with rules, adjudication too is not appropriate in all situations. E.g. where parties have to
live with each other after the dispute, mediation may be preferred rather than adjudication
where the result is imposed.

Modern Conceptions of the Rule of Law

 • In Britain, the Rule of Law serves as a principle that constrains governmental power, but only
in the area where its values apply. It is by no means the only principle constraining the ‘all-
intrusive claims’ of a sovereign parliament

The Practical Implementation of the Rule of Law

• Our courts have not yet felt themselves able to disapply primary legislation that offends the
Rule of Law
• As a constitutional principle, the Rule of Law serves as a basis for the evaluation of all laws
and provides a critical focus for public debate. (e.g. proposals to evade the rule of law by
prohibiting JR on decisions on asylum have been abandoned in the face of strong opposition
on the ground that the proposals offended the RoL’s moral strictures.
• Even before the HRA, the courts would seek to reconcile the principles of PS and the RoL
where possible. (per Lord Steyn in ex p Pierson, ‘... unless there is the clearest provision to
the contrary, Parliament must be presumed not to legislate contrary to the Rule of Law’
• This presumption in favour of the Rule of Law (and other fundamental constitutional
principles, such as freedom of expression) was restated clearly by Lord Hoffman in ex p
Simms

The practical implementation of the Rule of Law has taken place primarily through judicial review of
the actions of public officials. During the first half of the twentieth century, the courts rarely interfered
with the exercise of discretionary powers. From that time on however, they began to require that
power be exercised in accordance with three ‘grounds’ of judicial review, each of them resting in large
part on the Rule of Law

1. Legality

• The first ground requires officials to act within the scope of their lawful powers
• This exercise is a clear implementation of the Rule of Law, whereby the courts act as
guardians of Parliament’s intent and purpose.
• The definition of the purpose of a given statute is no mere mechanical exercise, and is often
complicated by the fact that the statute confers wide discretionary powers. And although there
are many administrative tasks which cannot be pre-determined by any rule, the courts have
reconciled Dicey’s fear of any discretion with a view that no discretion is wholly unfettered.
Per Lord Upjohn in Padfield, “The use of that adjective... can do nothing to unfetter the control
which the judiciary have over the executive, namely that in exercising their powers the latter
must act lawfully and that is a matter to be determined by looking at the Act and its scope and
object in conferring a discretion upon the Minister rather than by use of adjectives”

2. Procedural Propriety

• This requires decision-makers to be unbiased and to grant a fair hearing to claimants before
depriving them of a right or significant interest (e.g. livelihood or reputation)
• The kind of procedural protection is a concrete expression of the Rule of Law. Its content is
variable, depending on the issue. However, per Lord Hoffman in Aolconbury Developments
Ltd, “The Rule of law rightly requires that certain decisions, of which the paradigm examples
are finding of breaches of the criminal law and adjudication as to private rights, should be
entrusted to the judicial branch of the government”
• Note that over the past few years, the courts have extended the requirement of a fair hearing
to where a ‘legitimate expectation’ has been induced by the decision maker. (endorsed in
CCSU) In such a case, the claimant has expressly or impliedly been promised either a
hearing or the continuation of a benefit. The courts will not sanction the disappointment of
such an expectation unless the claimant is permitted to make representations on that matter.

3. ‘Irrationality’ or ‘Unreasonableness’
 • The fact that this is a ground for review under the RoL, shows that the RoL becomes a
substantive doctrine and not merely formal or procedural.
• Our courts tread wearily in this area however and interfere only using the Wednesbury
formula, which requires that the decision be beyond the range of reasonable responses.
• However, where the Role of Law or other constitutional principles are in issue, the courts
scrutinize the decision with greater care (under the HRA, the courts adopt the even stricture
scrutiny under the test of ‘proportionality’) and also adopt the ‘principle of legality’ (as
described by Lord Hoffman in ex p Simms) which presumed that Parliament intends the Rule
of Law to prevail.

The practical implementation of the Rule of Law over the years makes it clear that its substantive aims
underlie and endorse the strikeing down of a number of decisions, albeit often without mentioning its
name. (e.g. ex p Leech (no. 2), ex p Witham, R(Anufrijeva))

The Rule of Law therefore, possesses substantive content. It always has. Its promotion of the core
institutional values of legality, certainty, consistency, due process and access to justice promote
respect for the dignity of the individual and enhance democratic accountability. The rule of law thus
advances substantive as well as formal goals.

The Scope and Status of the Rule of Law

The scope is broad but not broad enough to serve as a principle upholding a number of other
requirements of a democracy. E.g. it does not address the full range of freedoms protected by bills of
rights in other countries or international instruments of human rights.

The Rule of Law and Equality

• As a starting point, Dicey considers that it requires formal equality (i.e. everyone is subject to
it to the same degree)
• The reach however of this type of equality is sometimes limited because its primary concern
is not with the content of the law but with its enforcement and application alone.
• Formal equality however does not prohibit unequal laws. E.g. it prohibits racially based
enforcement of a law but a law that discriminated on the basis of race could be validly
enacted.
• There are two opposing views as to whether substantive equality qualifies as a feature of the
Rule of Law. Those who believe that discriminatory laws are not ‘law’ would of course not
permit them to qualify as fulfilling the Rule of Law. On the other hand, as Lord Hoffman has
said equality in itself is ‘one of the building blocks of democracy’. It is therefore not necessary
to subsume substantive equality within the Rule of Law in order to demonstrate that
discriminatory laws violate one of the fundamental requirements of democratic
constitutionalism.

The Rule of Law and Parliamentary Sovereignty

In the absence of any formal constitutional source, it is theoretically open to the Rule of Law to
replace the sovereignty of Parliament as our primary constitutional principle. This was raised in some
of the dicta in Jackson.

Per Lord Steyn;

‘in exception circumstances involving an attempt to abolish judicial review or the authority of the
courts, the courts may have to consider whether this is a constitutional fundamental which even a
complaisant House of Commons cannot abolish.’

Lady Hale;
‘The courts will treat with particular suspicion (and might even reject) and attempt to subvert the rule
of law by removing governmental action affecting the rights of the individual from all judicial powers.’

Lord Hope;

‘it is no longer right to say that Parliament’s freedom to legislate admits of no qualification’ and that
‘the rule of law enforced by the courts is the controlling principle upon which our constitution is based’

Thus, it is no longer self-evident or generally accepted that a legislature in a modern democracy

should be able with impunity to violate the strictures of the rule of law.

Conclusion

• Note why Dicey is still the starting point

• Note that perhaps the most enduring contribution of our common law has been the
elaboration of the content of the Rule of Law by means of JR
• The RoL supplies the foundation of a new model of democracy which limits governmental
power in certain areas, even where the majority may prefer otherwise.
• It is a principle that requires feasible limits on official power so as to constrain abuses which
can occur even in the most well-intentioned governments.
• It may not be elastic enough to contain all the necessary requirements of a rights-based
democracy nevertheless, it has displayed enduring qualities, both formal and substantive, that
have over the years demonstrated that the Rule of Law is a fundamental and constituent
feature of any true constitutional democracy.