Constitutional Law

Constitutional Law Constitutional Principles: The rule of law

Rule of Law • Meaning of the doctrine: • In reality it is neither a rule or law • It is a doctrine of political morality that aims at ensuring the correct balance of rights and powers between individuals and the state • Adherence to the doctrine requires more than to govern according to the law since this is not necessarily equivalent to govern under the law • “Only in a country where the rule of law means more than formal, legal validity will subjects enjoy real protection from official tyranny and abuse” Mathews

Rule of law • Law is an instrument for exercising state power that in some circumstances is also a means of protecting the people against arbitrary and abusive government • Aristotle: ‘Government by laws was superior to government by men’

Rule of Law • Dicey’s definition (Introduction to the Study of Law and Constitution) 1885 • Constitution is governed by three main principles • Three meanings of the Dicey’s definition • First, • ‘It means in first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excluded the existence of arbitrariness, of prerogative, or even a wide discretionary authority on the part of the government.... A man can be punished for a breach of law, but he can be punished for nothing else

Rule of Law Dicey’s definition • Thus his first point refers to absence of arbitrary power • Such a power can be defined that has no identifiable legal origins or limits. • Example Entick v Carrington 1765: court refused to accept that a government Minister in absence of any common law or statutory authority had any power to grant warrants permitting entry and search of private premises

Dicey’s definition • No person can be punished except for a breach of law. Penalty can only be imposed on an individual for a breach of an established legal rule proved in the ordinary courts of law • Controversial: detention of terrorist suspects up to 28 days without trial

Dicey’s definition • Second part of the Dicey’s definition • ‘equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts’ • No one is above the law, officials and citizens need to obey the same law • He opposes that officials enjoy legal privileges and immunities • Crown Proceedings Act 1947 (Crown to be sued in contract and tort)

Dicey’s definition • Third, • ‘the law of the Constitution, the rules which in foreign countries form part of a constitutional code, are not the source but the consequence of the rights of individuals, as defined and enforced by the courts..., thus the constitution is the result of the ordinary law of the land”

Dicey’s definition • Third part, explanation • The meaning of this statement implies that the rights of the individual are not only ensured by the guarantees set down in a formal document but by the ordinary remedies available against those who unlawfully interfere with someone’s liberty

Rule of Law • There have been some interpretation to give the doctrine greater content • idea to offer minimum standards in terms of the way, laws are expressed and administrated • The emphasis is on the need for the rules and procedures that would ensure that laws are used for the protection of rights and not just a means of legitimising the use of powers

Rule of Law • The legal concept of "the rule of law" was incorporated into our judicial system. Hayek explains, the rule of law means that people do not have to answer to the arbitrary decisions of governmental officials; instead, they guide their actions by what is prohibited by a clearly defined law. Freedom, therefore, means answering only to a well-defined, previously established law, rather than to the arbitrary and discretionary edicts of some.

Ambiguity of the rule of law • The rule of law is also now considered an outdated legal concept. Today, people must answer to hundreds of thousands of arbitrary, unclear edicts from the politicians and bureaucrats rather than to clearly defined laws

Recent adaptation of the rule of law Raz • One of the proponents if the doctrine is Joseph Raz(1977). He proposed a procedurally oriented version of the doctrine in 8 postulates. He shares common ground with the constitutional theorists A. V. Dicey Hayek. Thomson. • Raz's principles define the requirements that should guide the individual's behaviour and should minimize the danger that could result from the exercise of discretionary power in an arbitrary way.

Raz’s principles • 8 of Raz's principles are as follows: • 1. That law should be general ( not discriminate) prospective rather than retroactive, open, clear • 2. Law should be stable and not changed too frequently, as lack of awareness of the law prevents one from being guided by it.

Raz • 3.There should be clear rules and procedures for making laws. • 4. The independence of the judiciary has to be guaranteed. • 5. The principles of natural justice should be observed, particularly those concerning the right to a fair hearing..

Raz’s principles • 6.The courts should have the power of judicial review over the way in which the other principles are implemented. • 7. The courts should be accessible; no man may be denied justice. • 8. The discretion of law enforcement and crime prevention agencies should not be allowed to pervert the law

Raz • According to Raz, the validity of these principles depends upon the particular circumstances of different societies, whereas the rule of law generally "is not to be confused with democracy, justice, equality (before the law or otherwise), human rights of any kind or respect for persons or for the dignity of man".

Lord Steyn • How wide-ranging and strong the rule of law is when measured against parliamentary supremacy • Since Dicey's observations in The Law of the Constitution (1885), the rule of law has played a pervasive role in our constitutional thinking. • But, until recently it was confidently assumed that parliamentary supremacy ultimately always trumps the rule of law. • After the long debate, judicially and academically. As the scope of judicial review came to be broadened, the rule of law has played an ever larger role

Lord Steyn • .Initially, its role was largely restricted to ensuring procedural fairness. Gradually, the rule of law acquired substantive content. For example, the rule of law was the foundation of a decision upholding access to justice where a prison governor refused a prisoner access to his lawyer. • Another case was where it was held that the Lord Chancellor's imposition of substantial court costs unlawfully impeded access to the courts.

Lord Styin • Until recent times, however, it was widely believed that the rule of law could never prevail against an express enactment of Parliament. Moreover, it was thought that the rule of law does not cover all the elements of a rights-based democracy. In general terms that may still be right. • But a series of decisions of the House of Lords in the last few years have breathed new life into the rule of law.

Lord Steyn • In Anufrijevathe question came before the House of Lords whether the withdrawal of income support by an internal note on a departmental file from a date before notification of the decision was lawful. By a majority of the House held that the uncommunicated decision had no legal effect. The House stated that the decision may have a more general bearing on the development of our public law.

Lord Steyn The House observed: • “The arguments for the Home Secretary ignore fundamental principles of our law. Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice. That is a fundamental and constitutional principle of our legal system.”

Lord Steyn • The House invoked the constitutional principle requiring the rule of law to be observed. In the leading judgment, I observed: • “That principle too requires that a constitutional state must accord to individuals the right to know of a decision before their rights can be adversely affected. The antithesis of such a state was described byKafka

Lord Steyn Kafka: a state where the rights of individuals are overridden by hole in the corner decisions or knocks on doors in the early hours. That is not our system. I accept, of course, that there must be exceptions to this approach, notably in the criminal field, e.g. arrests and search warrants, where notification is not possible. But it is difficult to visualise a rational argument which could even arguably justify putting the present case in the exceptional category.” Clearly this is a wide application of the rule of law, beyond earlier categories. The constitutional impact of the decision is clear.

Rule of law • Implications today: • 1) the rule of law should embody a preference for orderly life within an organised society • 2) the rule of law expresses fundamental principle that government must act according to law and in the cases before the court what the law requires must be enshrined in judicial decision • 3) the rule of law should be applied according to the procedures lied down for its execution

Rule of Law • British tradition: • Government must act according to law: the remedy should be available in ordinary courts for unlawful acts of government • Human Rights Act extended to all courts the duty where possible to interpret legislation consistently with the European Convention on Human Rights

Constitutional Law