The Rule
of Law
"A judge should value independence above gold, not for his or her own
benefit, but because it is of the essence of the rule of law."
Lord Chief Justice Phillips, 2007
It is universally
agreed amongst democratic states that the rule of law is a vital element
in a free democracy. The UK (along with only New Zealand and Israel) does
not have a written constitution and so such a principle is not enshrined
in the constitution, but it is jealously guarded by the courts.
The effect of the
Constitutional
Reform Act 2005 is to enshrine this principle in legislation for the first time.
The effect of the
Human Rights Act has gone some way to ensure some basic rights cannot
be removed by the state and are actionable in the courts.
The conflict between
the courts and Parliament create a tension in this respect. This is
largely resolved by the courts enforcing the will of Parliament, but
retaining the right to review activities of the executive by way of
judicial review. For example, the government (the executive) claims
to act using prerogative powers, of which little is known, or indeed
whether they exist, only the courts are in a position to challenge this
claimed authority of the executive.
This bedrock of a
democratic free society forms the basis of both Distributive Justice and
Corrective Justice and as part of the system of formal justice, which some
writers call procedural justice, ensures the English Legal System is a
fair system. Whichever, analysis is being used it means the Rule of
Law, and this includes Natural Justice.
What is the Rule of
Law?
The Rule of Law and
Natural Justice require that everyone be subject to the same law, that the
law should do justice by not punishing those whose actions are innocent or
justified. That there must be certainty in the law, so that all can
regulate their affairs accordingly. There must be access to
independent tribunals and a system of appeals, and a means of preventing
arbitrary law-making particularly by officials and inferior courts.
The English Legal
System attempts to meet these requirements and is largely successful.
There are however, concerns regarding access to justice and the
implications of Access to Justice Act 1999. The Community
legal Advice ensures legal advice and representation, but legal aid does
not cover all types of case, and people with even modest incomes may not
be eligible. Darling J is supposed to have said, "The law, like the
tavern, is open to all", but it may be more correct to say, as did Lord
Justice Matthew almost a century ago, “In England justice is open to all,
like the Ritz”.
Everyone
is subject to the law
However, if the
Government does not like the result it can usually reverse it by
legislation.
There are many
examples of the government, through Parliament enforcing its will when the
courts have ruled against them. These include,
Burmah Oil
v Lord Advocate
[1964] HL parliament
passed the War Damage Act 1965 enacted to prevent others obtaining
compensation.
In
Congreve v Home
Office
[1976] CA
the Home Secretary tried to prevent purchase of TV licences to beat the
rise in cost of the licences.
After
Council of Civil Service Unions v Minister for the Civil Service [1984]
HL the government banned trade union membership at a listening station.
Despite a court
injunction the Home Office deported M, claiming a misunderstanding,
M v Home Office [1993] HL
In R v Home
Secretary ex p Fire Brigades Union [1995] HL the
Criminal Injuries Compensation Scheme was altered using Royal Prerogative
instead of pending statutory power, and was ruled unlawful by the court.
A just legal system
has rules, and principles that are understood by those applying them.
There is machinery for applying the rules. The rules apply to all
persons, no-one should be above the law, and all people should be treated
equally. As Lord Denning said, "Be you ever so high, the law is above
you." (Gouriet v Union of Post Office Workers and Others
[1977] CA)
The law should be
applied without fear or favour, malice of ill will, or prejudice, bias or
fear from others, particularly the powerful. This means there must be an
independent and impartial judiciary.
Equality
before the law
Formal justice
requires that like should be treated as like, in other words everyone
should be treated the same irrespective of wealth or position, gender,
colour or race. Not only should they be treated the same by the
police but sentences should be the similar for similar crimes.
The Criminal Justice Act 1991 described this concept as "Just
deserts". There are of course exceptions, and these can
sometimes be seen in the wishes of Parliament, which provides defences.
Equality and
justice, however, are not identical if equality is used only to mean that
all people are to be treated alike for this fails to take account of
differences in character, upbringing, status, education and so on.
Discrimination on the grounds of age, sex, and colour and so on should not
be tolerated but recognition of human differences must be retained if
justice, in its widest sense of fairness, is to be achieved. Some consider
that in the interests of justice some individuals or groups should benefit
from positive discrimination so as to even out the disadvantages
experienced by such individuals or groups in the past. Others would see
this as unfair and that promotion or preferment should be achieved only on
merit.
Given that
individuals or groups may discriminate against others in subtle as well as
overt ways the law has had to develop the notion of direct and indirect
discrimination in an attempt to change attitudes and ensure fairer
treatment of those who would otherwise stand little chance of success in
employment, education, housing or other social activities.
English law has
taken an incremental approach to discrimination, outlawing discrimination
on the grounds of sex and race, disability and now, sexual orientation.
The law does not present a consistent approach and one area of
discrimination may not be matched in another, for example, the Race
Relations Act 1976 is not matched by similar religious discrimination:
discrimination on the grounds of religion in the workplace is however,
covered by the Employment Equality (Religion or Belief) Regulations 2003.
This presents problems in a modern pluralistic society. The legal
profession and system is itself accused of discriminating against women
and minority ethnic groups with the result that much talent is lost to the
legal profession and judiciary. Awareness within the profession and
judiciary has increased and conscious efforts are being made to improve
accessibility.
Writing in industry publication New Law
Journal, leading legal figures including Michael Mansfield, QC, writing in
the New Law Journal in July 2007, attacked the Labour Government over a
series of issues including the independence of the judiciary, intervention
in the legal system and failure to uphold the rule of law.
Mr Mansfield one of Britain’s top criminal barristers said,
“This is my fortieth year of practice at
the criminal Bar and, in my view, the greatest damage to the reputation,
quality and integrity of the English system has been inflicted by a Labour
Government first elected in 1997.
“I am certain that when the legal welfare system was envisaged in the
post-war years of an earlier Labour Government, nothing of this kind could
have been contemplated. The kernel of the attack has been an utter
disregard for the rule of law, due process and a fundamental lack of
respect for the independence of the judiciary.”
Defences
It is the case that
the same actus
reus,
with the same consequences can have liability extinguished or reduced by
statute law; for example, killing when labouring under diminished
responsibility, immunity from prosecution if under 10, or causing damage
to protect ones own property. The common law has adopted this idea
for hundreds of years, by doing justice with defences that justify or
excuse, and result in complete acquittal, such as the use of force in
self-defence, insanity or automatism the making of a mistake as to fact.
Other partial
defences such as provocation are intended to do justice, so that those who
kill while not fully responsible for their actions are not convicted of
murder. In provocation, the characteristics of the defendant are
relevant; therefore, not all people are treated alike.
Standards
of care do not always appear to equal
A learner driver
doing her best can be contrasted with a surgeon who has to fall
significantly below the standard expected.
Nettleship
v Weston
[1971] CA
a learner driver doing her incompetent best, is expected to reach the
standard of a competent driver.
Snelling v
Whitehead
(1975) HL
7 year old boy caused accident, but the driver is not found to be
negligent.
Whitehouse
v Jordan
[1981] HL
a doctor causes brain damage to baby but is not held negligent.
The law will not
allow some defences in some cases because it is thought that justice would
not be served, so, the defences of necessity and duress are not available
in cases of murder or attempted murder.
R v Dudley
& Stephens
(1884) CCR
shipwrecked sailors ate a cabin boy in order to survive.
R v Howe
[1987] HL
the defendants were involved in murders but were not the actual killer.
Southwark
BC v Williams
[1971] CA
Lord Denning would not extend the defence of necessity for a homeless
family that squatted.
Certainty
In any discussion of
justice, two concepts are of particular importance namely certainty and
equality.
Law needs to be
certain in its scope and effect if people are to know how to order their
affairs and to accord the law respect. However, the advantage of certainty
must not over-emphasise particularly with regard to substantive justice
where a patently unjust law, no matter how certain in its terms or effect,
will remain one which offends again principles of morality or notions of a
‘higher’ law.
Certainty can also
easily slide into rigidity with the effect that the law and legal system
will fail to meet changing social needs. This was a major criticism of the
common law and one, which Equity attempted to remedy. Once Equity itself
applied the doctrine of precedent, it too became rigid and less able to
adapt to meet changing needs. A balance has to be found between, on the
one hand certainty and, on the other, flexibility. Another aspect of
certainty is that the takes prospective effect rather than a retrospective
effect. If law applies to the future those affected will be able to
arrange their affairs in such a way as to conform to the law. If the law
has retrospective effect, actions they perform which were legal when
performed become illegal later. This is seen as unjust, unless there
are special circumstances that necessitate a law having retrospective
effect, for example the War Crimes Act 1991 and the Northern
Ireland Act 1972.
There is also a
presumption in legislation that law does not have extra-territorial
effect; in a modern society, this is not considered just, as those who
offend abroad and return to the UK are seen to have escaped justice. There
are many examples of modern law, “plugging the gap”.
The law must be
certain and available to all, no laws must be made in secret (it is
alleged that there are only three places where laws are made in private;
Cuba, North Korea, and the European Union). Hence, all Acts of
Parliament and Statutory Instruments and Local Bye-laws must be published.
The law is usually framed in such a way that it only proscribes
(prohibits) activity, so if activities are not proscribed then they can be
engaged in quite lawfully.
Precedent
In order to provide
certainty in the law judges are bound by precedent and consistent rules of
evidence and procedure and principles. Their decisions must be reasoned so
it possible to understand the law.
Impartial
judiciary
The independence and
impartiality of the judiciary is essential and the main way in which the
citizen is protected from dictatorial government. However, this says
nothing of the substance of the rules, which are to be administered and
applied. They may be considered to be unjust, wrong or immoral.
The positivist looks
to the process by which law is made. If this has been complied with, no
matter the content of the rules, they are to be obeyed and applied. The
natural lawyer will question the content or substance of the law and, in
extreme situations may be willing to question the authority of the legal
system itself, and if this is found wanting will either conclude that it
is not law at all or that the citizen is not morally obliged to obey it.
For example
Albert Venn Dicey (English academic born 1835) writing in 1885,
claimed the law at that time operated a formal equality at the expense of
a substantive quality. The law was blind to the differences of wealth or
power and assumed all possessed abstract rights and duties. Whereas,
FA von
Hayek
(Austrian economist born 1899) thought the law should apply to all and
benefit none in particular. Hayek regretted the role of the law (in 1944)
to be what he saw as supporting an interventionist state replacing a
free-market economy. The law provided a legal framework for a
particular form of economic activity.
