The Rule of Law

Ms. Suchitra Vijayan 2nd year LLB(Hons) with European Union Law University of Leeds U.K.

The rule of law is a fundamental building block of the western democratic order. The jurisprudence of rule of law has played a significant role in the process and development of English legal and political thought. A vague concept of rule of law started evolving more than 2000 years ago, at the time of Aristotle . Later a strong assertion of rule of law was laid down by chief justice Coke, who was dismissed from the bench for asserting the Supremacy of Law above the King. However his views were later accepted by the parliament when it passed the Petition of Rights in 1688, and with the passage of time and rise of territorial states in the 16th century the Law of England manifested it self as a supreme entity. Since then "the concept of rule of law" has gained different interpretations over the years, especially with political prominence of the bourgeois class, and the increasing popularity of laissez-faire government in the 19h century. Since then this concept has changed, adapted and regenerated it self over the years. However in the grand old tradition of any legal - political concept, the theory of rule of law has been distorted, redefined and reinvented, to be bandied about and conveniently invoked every time it is politically expedient to do so. Now with United Kingdom encompassing within itself, the European community law and with the incorporation of the Human rights act, the concept of rule of law as been refashioned again to fit its contemporary needs.

The rule of law in its modern sense owes a great deal to Professor AV Dicey-The Father of modern English constitutional law. Introduction to the study of the Law of the Constitution was first published in 1885 and since then has retained its position as a certifiable authority on the Principles of constitutional law . In his book he states that

'rule of law … which forms the fundamental principle of the constitution … It 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…It means, again equality before law, or equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts'

"A man may be punished for a breach of the law, but he can be punished for nothing else."

However before discussing the essential value structures and fundamental principles of rule of law it is interesting to note that the English law does not list down precisely a defined set of fundamental civil or human rights entitled to its citizens. In traditional English legal term, the concept of popular rights has been eclipsed by the concept of parliamentary sovereignty. It has been argued by many that though Dicey never explicitly stated the existence of human right, he counter balances this lacuna by projecting judicial decision as the yard stick of determining the rights of private individuals. According to Dicey , although [rule of law] 'declare no principle and define no rights... they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty

Judicial accountability to rule of law and Ultra vires

Accountability to the rule of law, in its most basic form aims at structuring and placing certain limits on governmental action. Time-tested constitutional mandates of separation of powers, checks and balances, independent constitutional review and an independent judiciary provide the institutional basis for judges to find and articulate laws independently. The most disputed violation relating to rule of law occurs where in state action conflicts directly with individual rights. Especially when a, wide range of discretionary powers are conferred on the executive, and it exercises powers not under its legal jurisdiction. The simple proposition that a public authority may not act outside its powers forms the formalistic basis of administrative law . With in it lies the core principle of Ultra Vires. It is also essential to note that any administrative act which is Ultra Vires is void in law i.e. deprived of legal effect. The land mark case which asserted this Principle was Entick v Carrington , where the court ruled that a general warrant issued by the home secretary for entry into private property and seizure of allegedly seditious material was contrary to the law and amounted to trespass of the property.

Parallel to the decision in Entick v Carrington, the House of Lords held that the Home Secretary was in contempt of the court on the account of failure to respect a court order concerning a deportee, in M v Home Office the House of Lords further held that the Secretary of State was not entitle to claim crown immunity. An injunction was granted against the secretary of State in his official capacity and the department which he was responsible was held in contempt .This legal precedent clearly illustrates the role of judicial accountability towards the protection of individual rights and placing checks and balances on the executive. However an apparent contradiction arose when Liversidge v Anderson was decided. The case challenged the legality of detention authorised under the order by the Home secretary. The House of Lords going against the principle established in Entick v Carrington held that at times of emergency the courts did not possess the judicial validity to review the actions of home secretary. Such conflicting judgements do not certify the existence of judicial protection against executive actions. However it should also be noted that the HRA Act 1998, incorporated the European Convention on human rights into domestic law which now enables citizen to challenge the validity of the Acts of parliament.

It is also essential to realise that whenever the parliament considers necessary it can pass retrospective legislation, nullifying the effect of the judicial decision. This clearly highlights the judicial subordination to parliamentary supremacy and imposed limitation of the Judges to uphold the rights. The classic example of this is being Burmah Oil v Lord Advocate . After the House of Lords awarded compensation to be paid for the wartime destruction of oil installations, the government speedily introduced the War damages Act 1965 nullifying decision retrospectively. However, recently there have been conflicting views regarding the extent of retrospective legislation, over the War Crimes Act 1991. For the first time the 1991 Act has come up for consideration in Strasbourg in Sawoniuk v UK . There two different sets of contentions and counter arguments over this issue namely:-

(i)There are those who feel that the Act is a piece of populist legislation designed to facilitate the prosecution of easy geriatric targets, with a certain convenient disregard for the rule of law and the principles of fair justice.

(ii) While others believe that this statute represents an important attempt to impose retrospective justice on the perpetrators of truly evil deeds who might otherwise escape retribution.
However at the end of the day it is important to note that that this kind of legislation ups the ante on fair trial rights for criminal defendants. Though it is important to bring to justice those involved in crimes against humanity, legislation must not aim at redressing just a single case at a given point of time, on the other hand it must aim at encompassing all future probabilities, and filtering the occurrence of future misuse . For at the end of the day Legislation should be prospective and not retrospective. Looking from a vantage point it is quite difficult, not to notice the inherent conflict between the Rule of Law and the supremacy of the parliament. Moreover, government according to law does not qualify to reality if those who govern and those who make laws are the same people. As the Thatcher era and the current Labour government shows that a government with a large majority in the House of Commons can push through almost any legislation. Thus subjecting the existence of rule of law through sceptic scrutiny reveals that, no legal philosophy can be adhered to with complete obedience.

The principle of Natural Justice is a direct corollary to the principle of rule of law. The first and fore most principle of natural justice states that, "No man shall be the judge of his own cause." It is on this ground that a decision of a bench of magistrates was quashed by the Kings Bench division on the basis that one of the judges had personal interest in the question under scrutiny in Dimes v Grand Junction canal . In January 1999, appeal was made by the defence in the Pinochet Case (R v Bow Street Metropolitan Magistrate ex p Pinochet Ugarte ), dealing with the Chilean dictator tried for crimes against humanity. Another panel of law lords set aside the decision of the earlier hearing of Lord Hoffman's decision , on the basis of his special involvement the with voluntary organisation Amnesty International invalidated the previous hearing .

The second principle of natural justice being "no party must be condemned unheard". Though this principle is a flag posts of modern judicial process, there are many instances and cases of breach of this principle. Especially in Northern Ireland separate systems of criminal courts namely - the 'Diplock courts' were set up. Where defendants in terrorist cases, did not have the right to trial by jury. This breaches Article 6 of the European convention of human rights . Other breaches include the government changing the law to its own requirements through parliament e.g. the 1989 Official secrets Act blocked the defences used in cases that it lost, such as Spycatcher 1988 and Ponting 1985.

The dictates of due process of law demands that procedural fairness is maintained in all legal proceedings. This concept of justice emphasises interpersonal adjudication, law based on standards and the importance of procedures. However the Wolfe Tone's case proved other wise. In the recent years there have been many instances of miscarriage of justice- for instance "Birmingham six", "Guildford four", "Maguire Seven". In each of these cases the evidence relied upon was unreliable. Later the convictions were quashed by the Court of appeal, yielding to public pressure and campaigns. Thus such serious miscarriages of justice reflects a poor manifestation of Justice, goings against the, essential principles of rule of law. In Rowe, Davis and others v UK the applicants complained that their trial for murder had been unfair and in breach of Art 6. The prosecution with held certain evidence from the defence in a murder trial on grounds of public interest. The Court held that this was in breach of Art 6(3)(d) because important evidence had been concealed from the defence, thereby depriving them of the opportunity to challenge it in judicial proceedings. All these cases go on to prove the importance of judicial fairness in the process of adjudication. Judicial system which exhibits decent standards of criminal conviction with low rates of mistakes is an essential index to prove that the rights of individuals are upheld.

The convention on Human rights was first ratified by the member states in 1951. In spite of playing a pivotal role in the drafting of the convention, The British Government had strong reservation regarding the implementation of the convention into its domestic law. However in 1965 the government gave individuals right to petition in the European court of human rights under the convention. Between 1975 and 1990 the European court of human rights decided 30 cases involving the United Kingdom, 21 of these resulted in findings of violation against UK, and by 1997 the toll has risen to 50.However the introduction of Human rights Act 1998 has placed important new functions on the courts, extending the rights protected by the European Convention on Human Rights. The judges now have a duty to interpret all legislation consistently with Convention rights, and a power to declare primary legislation to be incompatible with Convention rights In Rights Brought Home (1997), the Government emphasised that the judges should not be given power to strike down the Acts of a sovereign Parliament, there by restricting the scope of the judiciary. The beginning of the 1990's saw a marked shift towards the assertion of human rights and other civil rights in day today life. In 1994 the House of Lords gave a declaration that British legislation on Sex Discrimination was in breech of EC law, even without the ruling from the ECJ in Equal Opportunities Commissions v Secretary of state . Cases such has Costello v UK , A v UK , both imposed liability on the State for the infliction of corporal punishment on children by private parties. The ruling immediately prompted government to take notice of the situation. Other important effects of the convention can be found in the context of freedom of expression. The decisions in Sunday Times v United Kingdom(1979) Sunday Times v United Kingdom(1992) , were potent influences upon British judicial attitudes, because the European Court of Human Rights decided that the House of Lords had violated the right to free expression, guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms Art 10 , by granting injunctions restraining contempt (in A-G v Times Newspapers Ltd 1974) , and breach of confidence (in A-G v Guardian Newspapers Ltd 1987 (Spycatcher) ). Similarly, the decision in Rantzen v Mirror Group Newspapers (1986) Ltd influenced the European Court of Human Rights in Tolstoy v United Kingdom (1995) , in deciding that a jury's award of damages was so excessive as to amount to a breach of Art 10 of the Convention. Apart form the above cited cases, other area of controversy and serious breach of Human rights deals with interrogation, terrorism and institutional racism. The first Compton report considered the 11 cases of "interrogation in death" at an interrogation centre in Northern Ireland in 1971, the report laid down pre conditioned protocols which are to be followed and required an official authorisation by the minister involved to carry out the interrogation. However it's a sad state of affairs to realise that these recommendations have still not be implemented. The world conference on Religion and Peace, held in October 1970 declared that

The recent decisions of the Third Section of the European Court of Human Rights in four applications concerning alleged violations of Art 2 of the European Convention have prompted considerable public criticism from political figures in the United Kingdom. In all four cases (which were brought by relatives of 12 persons, all but one of whom were killed by the police or security forces in Northern Ireland in the 1980s and early 1990s), the ECHR found a violation of Art 2 and determined that each applicant should be awarded £10,000 as compensation for non-pecuniary damages. Soon after the HRA act came in existence, the Dianne Pretty case came to the fore front, the case dealt with the contention whether the Right to life enshrined in the HRA act also, guarantees a person the right to die. Though Ms Pretty lost the case, the decision just marks the beginning of the new phase of legal chapter in British constitutional history. At this point it is quite too early to give a complete appraisal of the HRA act. However it is essential to note that Westminster needs a mechanism that will lead to an impartial appraisal for compatibility with human rights being made whenever new clauses are proposed. This would reduce the likelihood of fundamental rights being eroded as blatantly. Finally, even if all human rights are fundamental, some are more fundamental than others. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual's liberty constitutes an important component.

Conclusion

The rule of law is a key component in the constitution-implementing and safeguarding apparatus. An independent judiciary, independent constitutional review, and the notion of the supremacy of law all work together to ensure that the letter and spirit of the constitution are complied with in the working of a constitutional government. Technically Rule of law has been claimed as the most important constitutional principle. Still there have been many instances of breach of Rule of law in the British system, for instance violation of human rights in Northern Ireland, Governments restriction toward the right to freedom of expression (Spy catcher), Retrospective law such as the War Crimes Act 1990, which makes actions unlawful in this country after they were committed. Discrimination in the courts and institutional racism eg Blacks far more likely to receive custodial sentences. The controversial case involving the murder of the black teenager Stephen Lawrence . Unequal access to the law in civil cases. "The law like the Ritz is open to everyone" Lord Denning . Wealth buys greater access to the civil law eg libel cases. However a few breaches do not essentially mean the failure of a legal principle. Most legal concepts and doctrines develop for a reason, and are the product of hard-learned lessons. It is also essential to note that the concept of rule of law is going through a continuous process of evolution. At an earlier point it was used to assert the supremacy of the parliament over the king, and with the wake of Liberalism it made a progression towards civil rights. And with the on set of the HRA act, we are moving towards a phase of individualism. Where in more and more state actions are going to be challenged as infringement of human rights. Finally to quote Lord Lester "As the impact of Human rights Act comes to be understood , British Judges will increasingly be called upon to act as constitutional judges when interpreting legislation and developing common law… They will have to move from their earlier relatively sheltered position as lions under the throne of the Sovereign Queen in the parliament to become a co-ordinate branch, separate and independent, but working in partner ship with the other two branches of the government".