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RULE OF LAW
The Diceyan Orthodoxy
'No man can lawfully be made to suffer in body or goods…'.
Primary concern is with protecting individual rights and liberties
'…except for a distinct breach of the law'.
This reinforces the conclusion that government has to operate within a framework of laws superior to the mere actions of government
Supremacy of Regular law over arbitrary power
'…must be established in the ordinary legal manner before the ordinary courts of the land'.
The courts, rather than the government, must determine whether or not the law has been broken.
Equality before the law; no higher law
Modern day Dicean
For Hayek, the function of the rule of law is to ensure that:
'government in all its actions is bound by rules fixed and announced beforehand'
o Hayekians believe that society's interests are best served by reducing the power and size of government to a minimum,
thereby giving individual citizens as much freedom as possible to organise their social and economic affairs.
Jones - rule of law in welfare state
Born out of Butskellism: Butler and Gaitskell (politicians)
This perspective assumes firstly that government should play an extensive role in economic affairs, and secondly that individuals must accept significant limits on their autonomy if the legislature deems such restraints in the public interest.
o Rule of law is a relative rather than absolute political value
One can dilute Dicey's model without removing its basic features.
BUT three arms of government must accept an
Legislature bestows wide discretion on government bodies, it may not grant them arbitrary powers.
Forgoes some sense of predictability stating that citizens need merely know/understand general boundaries.
Joseph Raz's Rule of Law
Distinguished formal and structural with substantive rule fo law
Formal ROL is about having legal procedure (courts,
lawyers etc.) establishes legal certainty Substantive ROL is about the outcome - fairness and protection of individual rights
Lon Fuller supports this: legal systems require an element of morality
Harlow and Rawlings' Law and Administration (1980)
o Could analyse public law by using a traffic light metaphor:
o Red light: Diceyan perspective
Hayek, echoing Dicey's suspicion of the executive,
maintain that the rule of law's primary concern should be to stop government interfering with individual autonomy.
E.g. Anisminic v Foreign Compensation Commission
o Green Light: Jones
Jones, in contrast, believe that the Diceyan preoccupation with individual rights is misplaced.
Assume that Parliament and the courts should loosen the legal constraints on government discretion,
enabling government to curb individual autonomy in order to promote society's collective well-being.
o Amber light: Harlow & Rawlings
This does not mean that, in practice, legal controls lie at the precise mid-point of the theoretical continuum,
but that individual cases are located at various positions on the spectrum.
Some flexibility but not too much.
Entick v Carrington (1765)
o Entick assisted John Wilkes' radical political through printing.
Home secretary, under orders from George III and signed by Home Secretary issues a general warrant allowing Mr Carrington to break into Entick's press and take away any printing materials there and dispose of them.
o Prima facie trespass, but Carrington argued the warrant provided a lawful excuse.
Defence could not be sustained - no legislation in force which authorised the Home Secretary to grant such a warrant.
o Camden CJ rejected both of these desperate defences
'If it is law, it will be found in our books. If it is not to be found there, it is not law.'
o Led Heuston to characterize the courts as the 'lions under the throne' of the British constitution
An independent judiciary: Act of Settlement 1701 Judges appointed by crown; dismissible by Commons and Lords
The Rule of Law under orthodox or Diceyan perspective
o 1. No man (person) shall be lawfully made to suffer in body or goods
2. Except for a distinct breach of the law
3. Established before the ordinary courts of the land
4. No arbitrary power
5. 'Equality before the law' i.e. no special status for government officers per se
Separation of Powers
1) The Legislature: Law-making body
House of Commons, House of Lords, Royal Assent.
o 2) The Executive: Implements the law
The Crown, Governement and Cabinet.
o 3) The Judiciary: Interprets and enforces the law
Cannot JR parliament
Principles of Statutory interpretation
Literal Rule - R v Judge of the City of London Court
 per Lord Esher
Golden Rule - examined in the light of other parts of the Act
Mischief Rule - what mischief was the provision meant to resolve
Purposive Interpretation - Magor and St Mellons v
Liversidge v Anderson (1942)
o Defence Regulations 1939 reg 18B
"If the Home Secretary has reasonable cause to believe any person to be of hostile origins or association..., he may make an order against that person directing that he be detained."
Liversidge committed to prison, no reason given.
o The Majority held that
The Home Secretary could use reg. 18b to imprison anyone he thought was of hostile origins.
He did not need to offer the court any evidence to show that his belief was reasonable.
o Per Lord Wright
"All the word 'reasonable', then, means is that the minister must not lightly or arbitrarily invade the liberty of the subject.
o Lord Atkins Dissenting:
Lord Atkin thought if Parliament said 'reasonable cause to believe', it intended that there be some plausible evidence on which that view was based.
The only way in which could be given this interpretation is in Alice through the Looking Glass -
Humpty Dumpty 'when I use a word it means just what
I chose, neither more nor less.'
Viscount Simon LC wrote to ask Aitkin to amend the strong terms of his dissenting judgement. He refused.
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