(2) The Core Rule of Law

Question 1

What is the Rule of Law?

Answer 1

There is no universally accepted definition of the Rule of Law - it is, however, a constitutional concept designed to regulate the conduct of public officials and underpin the idea of limited government.

Question 2

What two things epitomise the uncertainty surrounding a definition of the Rule of Law?

Answer 2

1. Lord Bingham’s comment - ‘I was not sure that all those who used the expression knew what they meant, or meant the same thing’
2. The lack of consensus among academic commentators over what should be considered the ‘true’ Rule of Law

Question 3

What are the three key interpretations of the Rule of Law?

Answer 3

1. The Core Rule of Law - Dicey
2. The Extended Rule of Law - Fuller
3. The Substantive Rule of Law - Dworkin

Question 4

What was Dicey’s Core Rule of Law?

Answer 4

According to Dicey, The Rule of Law simply requires the government to point to legal authority for its actions and prevents it from receiving special privileges in court.

Question 5

Where does the concept of the Core Rule of Law originate from?

Answer 5

Ideas of the significance of the Rule of Law date back to ancient Athens – Aristotle observed – the absence of law would let ‘passion perver[t] the minds of rulers’.

Question 6

Dicey recognised the significance of the Rule of Law in relation to which other constitutional doctrine?

Answer 6

Parliamentary Sovereignty - Dicey recognised that the Rule of Law provided something of a break on the unfettered legislative power of Parliament.

Question 7

What is a potentially limiting factor upon the reliability of Dicey’s position?

Answer 7

The fact that Dicey’s work and opinions must be viewed with the knowledge that he wrote with the agenda of preserving the UK’s Victorian governance order against change.

Question 8

Which school of thought was particularly influential upon Dicey’s thinking?

Answer 8

Legal positivism - this suggested that laws themselves are neither good nor evil but simply rules that govern society.

Question 9

What were the two key concepts that underpinned Dicey’s Core Rule of Law?

Answer 9

1. Government by Law

2. Equality before the Law

Question 10

What is the government by law requirement?

Answer 10

Government actions require authority - there must be clearly identifiable principles empowering public officials to act in a manner affecting the interest of private persons -and the relevant principles must be pointed to by public officials when making decisions.

Question 11

What requirements are there of the laws relied upon by public officials under the government by law pre-requisite?

Answer 11

The principles empowering public officials to act in a manner affecting the interest of private persons must be clear and specific – ‘no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law’.

Question 12

What were Dicey’s two key aims when enforcing the government by law requirement?

Answer 12

1. To restrict the operation of arbitrary power.
2. Allowing people to plan their lives – Friedrich Hayek said it allowed individuals to ‘foresee … how the authority will use its coercive powers in given circumstances, and to plan ones live accordingly’.

Question 13

What key case did Dicey turn too, to demonstrate how deeply rooted the government by law requirement was in the UK Constitution?

Answer 13

Dicey turned to case law seeking to demonstrate the courts readiness to accept such a principle – the most famous case in this regard is Entick v Carrington.

Question 14

What was the significance of Entick v Carrington?

Answer 14

In this case it was held that the relevant exercising of state power required clear justification under common law or statute – something that was lacking in this case.
In this way Entick v Carrington represents a ringing endorsement of the rule of law and of the system of democratic government.

Question 15

What is the equality before the law requirement?

Answer 15

This requirement holds that there should be no discrepancy between the treatment of public and private bodies before the law - or, alternatively, no inherent privilege for public officials. Indeed, there should be no special privileges for government – administration of law affecting relations between public officials and private persons should be done by ordinary courts rather than specialist ones.

Question 16

What was the underlying aim of the equality before the law requirement and how did Dicey seek to fulfil it?

Answer 16

Dicey wanted to ensure that public officials were accountable to the courts for their exercise of public functions. His requirement of equality before the law was designed to do this by preventing courts affording undue leniency to the public body – ‘here every man, whatever be his rank or condition, is subject to the ordinary law of the realm’.

Question 17

Which key case did Dicey turn too, to demonstrate the deeply rooted nature of the requirement in the UK Constitution?

Answer 17

Dicey sought to embed, in the UK Constitution, the notion that relations between private parties and public officials were to be addressed in the ordinary way – unless a law had granted some special power to the official.
This position was illustrated in the case of Pedro v Diss – here it was established that ‘[o]nce they go beyond their specified powers, the police have no special privileges’.

Question 18

Which other understanding or concept compliments the requirement of equality before the law?

Answer 18

The democratic understanding of the equal worth of individuals.

Question 19

Which other decision is of significance in regards to the equality before the law requirement?

Answer 19

M v Home Office – here it was ultimately held by the House of Lords (following great contestation from both sides) that it is possible to issue binding injunctions against ministers (something the Home Secretary has sought to dispute – blatantly in conflict with Dicey’s requirement of equality before the law) and that ministers could also be found to have acted in contempt of court.

Question 20

What exceptions are there to Dicey’s requirement of equality before the law?

Answer 20

The general rule or principle of equality before the law does, however, have some exceptions, in some instances some groups may be granted special privileges before the law;

1. Diplomatic Immunity
2. Immunity relating to Parliamentary Proceedings
3. Judicial Immunity relating to Court Proceedings

Question 21

What is the idea of diplomatic immunity?

Answer 21

Diplomats are excluded from the operation of domestic law.
Their immunity is designed to prevent them from being ‘framed’ for criminal offences or hounded by law enforcement when visiting other states.

Question 22

What potential issues are there with the idea of diplomatic immunity?

Answer 22

Diplomatic immunity can, and has, been abused by diplomats and their origin states who choose to disregard national law for no good reason.

Question 23

Holistically, is diplomatic immunity reconciled with equality before the law?

Answer 23

Overall, diplomatic immunity is accepted as although it can in some circumstances represent a significant inroad to the principle of equality before the law – ‘its practical utility’ counterbalance this.

Question 24

What is the idea of immunity relating to Parliamentary Proceedings?

Answer 24

MPs enjoy various privileges designed to protect parliamentary proceedings from interference. The key example of immunity in this setting is immunity in regards to free participation in parliamentary proceedings – this right is also enshrined in the bill of rights 1689 – ‘[T]he Freedom of Speech and Debates or Proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament’.

Question 25

What examples are there of MPs exercising their right to immunity relating to Parliamentary proceedings?

Answer 25

Comments made recently by an MP naming Philip Green as the businessman under investigation for abuse of his previous employees represent one instance of parliamentary special privilege being exercised.
Other examples can be seen in the comments made by Lord Campbell-Savours in a House of Lords Debate in 2006 and the case of R v Chaytor.

Question 26

What is the broader significance of the case of R v Chaytor in regards to immunity relating to Parliamentary proceedings?

Answer 26

In this case the defendants were found guilty and imprisoned following the reasoning that the special privilege afforded to parliamentarians should be interpreted as narrowly as possible so as to protect the parliamentary functions but to reduce the infringement on the overarching value of equality before the law.

Question 27

What acts as a slight limitation on the absolute immunity relating to Parliamentary proceedings?

Answer 27

Abuse of this privileges, if/when it occurs, will still be policed, only by Parliament themselves rather than the courts - thus excluding the jurisdiction of the ordinary courts.

Question 28

What is the idea of judicial immunity relating to court proceedings?

Answer 28

Historically it has been accepted that judges should be afforded absolute immunity from liability for actions or words in the course of performing their role in the judicial office.

Question 29

Which case established, or at least supports, judicial immunity relating to court proceedings?

Answer 29

The case of Anderson v Gorrie saw it established that – ‘no action lies for acts done or words spoken by a judge in the exercise of his judicial office, although his motive is malicious and the acts or words are not done or spoken in the honest exercise of his office’.

Question 30

What acts as a slight limitation on the absolute immunity relating to court proceedings?

Answer 30

Judges acting in bad faith can still be removed from office, just by resolution by both houses of parliament. Furthermore, rather than being able to bring civil actions, there are other protections for the administration of justice – like contempt of court.

Question 31

What is the justification for judicial immunity in relation to court proceedings?

Answer 31

This civil action rather than an ordinary domestic law one is supposedly justified by the fact that – ‘if such an action would lie the judges would lose their independence, and the absolute freedom and independence of judges is necessary for the administration of justice’.

Question 32

What did Lord Hope note in the case of Arthur J S Hall v Simons in regards to judicial immunity?

Answer 32

He said - ‘[a]ny immunity from suit is a derogation from a person’s fundamental right of access to the court which has to be justified’.

Question 33

What was the overarching aim of Dicey’s Core Rule of Law?

Answer 33

Dicey’s fairly rigid requirements were designed to prevent governments introducing legislation granting broad discretionary powers to ministers and officials.

Question 34

How was Dicey’s Core Rule of Law consistently challenged, and arguably put into decline, in the early 20th century?

Answer 34

His rigid approach could not be reconciled with the need for flexibility as the state expanded in the early 20th century – providing education, healthcare, social housing and so on. Parliament repeatedly snubbed the Diceyan view - introducing special tribunals to administer law in various, specific, new areas. This contributed to a new generation of legal theorists developing further challenges to Dicey’s position.

Question 35

How did Ivor Jennings criticise Dicey’s position?

Answer 35

He challenged Dicey’s vision of the rule of law as outmoded – saying Dicey’s obsession with the supposed dangers of discretionary powers of officials and tribunals no longer reflected the reality of the UK Constitution.

Question 36

What are the limitations of the core rule of law?

Answer 36

1. It is such a narrow concept ministers soon became adept at circumventing it.
2. Issues recognising the infringement of individuals legally recognised rights
3. Issues with interpretation of the equality before the law requirement
4. Self-undermining observations from Dicey

Question 37

How does the narrowness of the concept act as a weakness for the core rule of law?

Answer 37

Officials may be able to rely on broad discretionary authority given to them by statutes to satisfy the lawful authority requirement – as illustrated in the case of R v Inland Revenue Commissioners, ex parte Rossminster. Furthermore, this case seemed to demonstrate that the government by law requirement imposes no restrictions on the quality of the law relied upon, simply that it can positively be identified or pointed too.

Question 38

What issues are there with recognising the infringement of individuals legally recognised rights?

Answer 38

Individuals subject to unauthorised government action have to be able to show that their legally protected interests have been affected in order to gain a remedy before the courts. Initially Dicey was willing to trust the courts to judge and identify cases where relevant private interests were at stake, however, following cases such as Malone v Metropolitan Police Commissioner the ability of the courts to do so was called in to question.
Following such cases it appeared that if the claimant could not identify a legally recognised right which has been infringed by the government judges would not properly evaluate whether officials could point to authority for their actions.

Question 39

What issues are there with the interpretation of the equality before the law requirement?

Answer 39

Cases such as Malone v Metropolitan Police Commissioner demonstrate a key issue with judicial interpretation and application of the concept of equality before the law. It seems that rather than interpreting the equality before the law requirement to mean that public authorities should not normally be beyond the authority of ordinary courts – just as private individuals aren’t – it was interpreted to mean public authorities should be treated in the same way as private individuals.

Question 40

How do the issues with the interpretation of the equality before the law requirement weaken the core rule of law?

Answer 40

This creates issues as it leads to the position that individuals supposedly affected by unauthorised government action have to first demonstrate that a particular law has been broken – as a private individual would – this undermines the core rule of laws equality before the law requirement and allows government to be subject to no greater restrictions that private individuals.

Question 41

What self-undermining observations from Dicey weaken the core rule of law?

Answer 41

Dicey himself conflates or categorises private individuals with public officials – stating that both must point to legal authority for any of their actions. This approach make the common mistake of treating private and public bodies the same way.

Question 42

What potentially served to resolve some of the issues with the equality before the law requirement - strengthening the core rule of law?

Answer 42

1. After the case of M v Home Office the equality before the law requirement was restated – ‘For private persons, the rule is that you may do anything you choose which the law does not prohibit … But for public bodies the rule is the opposite, and so of another character altogether. It is that any action to be taken must be justified by positive law.’ - providing some clarity to the interpretation of equality before the law.

Question 43

What is argued to partially resolve the issue regarding issues recognising the infringement of individuals legally recognised rights?

Answer 43

The HRA 1998 seemingly enumerated the interests (human rights) the courts were obliged to protect – thus not leaving it as an entirely discretionary power of the courts to determine when such interests were at stake – as was the case in the Malone case.
This was illustrated by the ECHR making up for the deficiency of the common law when Mr Malone took his case to them, subsequent to the failure of it in UK Courts.

Question 44

What do some academic commentators say about the core rule of law?

Answer 44

Many commentators see the core rule of law as providing UK Courts with a relatively restricted role – simply policing the existence of legal authority and seeking to maintain equality in the administration of justice.

Question 45

What ongoing significance is the core rule of law said to have, and what somewhat limits it?

Answer 45

It is seemingly broadly accepted that the rule of law in this core and perhaps basic or fundamental sense is important and necessary in preventing rules from exercising their power by arbitrary discretion.
This concept does not, however, require laws to be ‘good’ in nature and thus is regarded by some to be a relatively uninspiring concept.

Question 46

What did Adam Tomkins say about the core rule of law?

Answer 46

Adam Tomkins maintains that the core rule of law is what ‘as a matter of British constitutional law, is what is meant by “the rule of law”’.
According to Tomkins conceptions that go beyond this are not established features of the UK Constitution.

Question 47

What could be considered the final nail in the coffin (in regards to application) of Dicey’s core rule of law?

Answer 47

In a sense, the final nail in the coffin of Dicey’s initial view of the rule of law was hammered home when the UK government assumed wide-ranging discretionary powers to enable it to conduct the first world war – Dicey himself later acknowledged the decline of his vision.