public law,

RETHINKING THE CONCEPT OF THE RULE OF LAW IN MODERN BRITAIN


By Tevž Sitar Apr 16, 2021

INTRODUCTION

Western countries take pride in their orderly constitutional systems which reflect their aspirations to respect human rights and the rule of law (“RoL”). However, when considering the actual meaning and intended genuine effect of the RoL, the concept actually generates more confusion than its inconclusive terminology suggests.

Situating the concept of the RoL in the British constitutional system and identifying its role in the exercise of law-making reveals unexpected complications. Recent events, such as Brexit negotiations and the COVID-19 pandemic, present an opportunity for the exploration of the true meaning of the RoL in modern Britain and evaluating its role in the British constitution.

Last year, Parliament enacted the Coronavirus Act 2020, in which it granted the Government extensive discretionary powers through delegated legislation.1 Later in the year, the Government proposed clauses in the Internal Market Bill that would directly breach international law.2 Even though the events clearly had major implications for the RoL, the Government and Parliament were still allowed to proceed with their agenda. The events demonstrate the elusiveness of the RoL and how easily the concept is disregarded. But why has the constitutional order, purportedly based on the RoL, not disintegrated and collapsed? The answer to this question might lie in the fact that the RoL does not hold any tangible value because of its conceptual uncertainty. The concept is correctly encapsulated by Tamanaha, who noted that “everyone is for [the RoL], but have contrasting convictions about what it is”.3

This article will argue that the RoL exists only as a descriptive concept of the modern constitution, without a clear definition in both procedural accounts (arguing that the RoL covers only the form of law and its procedures) and substantive accounts (arguing that in addition to its procedural component, the RoL should also require compliance with the substance of the law and human rights). This makes it open to attacks and incapable of being justified by strong argumentation in the legal context. The article will proceed with discussing the incompatibility of a prescriptive RoL with the British constitutional system, particularly with the central principle of parliamentary sovereignty. Moreover, it will explore the role of the RoL in Britain’s political structure and raise concerns about the potential for abuse in this context. The article will conclude with proposals about the future of the RoL.

THE RULE OF LAW REASSESSED

The predicament of defining the rule of law

British jurists have attempted to define the RoL for more than a century. The most comprehensive explanation of the RoL was provided by Lord Bingham, who listed both procedural and substantive ˝sub-rules˝ that constituted the RoL.4 However, Lord Bingham himself recognised that statutory law does not define the RoL – with the Constitutional Reform Act 2005 being the only statute that mentions the RoL. The Act’s Section 1(a) states: “The Act does not adversely affect the existing constitutional principle of the rule of law”.5 According to Bingham, the authors of the 2005 Act found the task of defining the RoL too complex and therefore left it to the judiciary.6 Therefore, the principle is referred to in an Act of Parliament without any comprehensive definition. Arguing before the court that this constitutional principle has been infringed would be extremely onerous. In any event, it goes against the principle of legal certainty.7 Even though it remains a legal principle, paradoxically, it also goes against Bingham’s own elaboration on the RoL, presenting the requirement of laws being clear, predictable and questions of legal rights being resolved by application of law and not the exercise of discretion.8 The principle’s presence in an Act of Parliament would undoubtedly require more certainty as to its meaning than other non-codified principles.

Dicey’s Introduction to the Study of the Law of the Constitution also shed light on the issues of defining the RoL by drawing both from procedural and substantive accounts. Dicey emphasised that the RoL is an inherent feature of English institutions, as opposed to other European countries, e.g., France.9 He stressed three elements that make the English legal system the perfect manifestation of the RoL. Firstly, he claimed that no citizen will be punished except for a distinct breach of law established in the ordinary legal manner before ordinary Courts of the land.10 Secondly, Dicey reiterated the value of equality under the common law.11 Thirdly, he stressed that the English constitution’s protection of personal liberties is a result of “judicial decisions on rights of private persons” and not a result of some general principles in foreign constitutions.12 There are two aspects of this interpretation worth mentioning: firstly, using judicial decisions and common law as primary proof for the RoL is perhaps not the most convincing argument. It is difficult to establish that judges were guided by the RoL in decision-making while authors of other constitutions were not. Even though judges decide cases in line with procedural requirements, it is still their interpretation of fact and law. Their decisions in many cases, with the lack of common law and statutory basis, tend to be discretionary. Moreover, Supreme Court Justices, despite being bound by the stare decisis doctrine, can evidently still change previously decided law if there are strong grounds for that decision.13

Secondly, Dicey’s account clearly demonstrates that the RoL is a descriptive rather than prescriptive concept. The constitutional system contains certain elements that, when analysed jointly, encapsulate the RoL – however, rather than the concept acting as a norm or rule that the state ought to comply with, the rule of law instead describes law-making in Britain. While Dicey showed that the RoL was present in the British constitution, Britain itself did not aspire to achieve this ideal, but rather created the system and institutions which turned out to contain characteristics and an inherent value of what Dicey saw as the RoL. In the words of Finnis, Dicey’s RoL is merely “the name commonly given to the state of affairs in which a legal system is legally in good shape”.14 That is why it would be hard to say that the RoL is a British achievement as it would be impossible to prove that the concept was the absolute objective of British judges as proposed by Dicey. It is what simultaneously arose with the creation of the British legal system and did not precede its creation.

The descriptive nature of the RoL can also be traced in the procedural account of another legal philosopher, Joseph Raz, who recognised conformity to the RoL as an inherent (but non-prescriptive) value in law-making and a result of an instrumental conception of law.15 Raz created his own list of principles best explaining the RoL, and particularly emphasised the notions of certainty and prospectivity of laws.16 Evincing a procedural account, Raz associated the RoL with the protection of individuals’ freedom to plan their lives, in the spirit of Hayekian philosophy.17 Raz suggested that the RoL minimises (or attempts to minimise) the danger of infringing people’s freedom by requiring clear and prospective laws which prevents the danger of ruling by arbitrary power.18

However, we should question whether the RoL as such (representing legal certainty, predictability and accessibility as proposed by Bingham) is necessary, as its component principles already exist in the British constitution. As Raz himself noted, the RoL is only one of the virtues of today’s laws.19 Indeed, we can find traces of the RoL, in terms of certainty and predictability, in laws. But it is highly questionable whether the constitutional system really requires the umbrella term of the RoL when other, clearer and better established (or at least established to the degree valuable for them to be) legal principles serve a similar purpose. Looking at the RoL as one of law’s inherent virtues, as presented by Raz, the descriptiveness of the concept is additionally reaffirmed by some substantive accounts, like Dworkin’s. His position that the RoL does not stipulate only the narrow ‘rule-book conception’, but that the concept encapsulates people’s moral and political rights,20 calls for rebuttal. With strong emphasis on substantive justice, rights, and even morality, the rights conception cannot introduce a universal RoL concept, and can only describe the understanding of these elements in a specific jurisdiction. After all, even the judge Hercules must rely on the “convictions of his nation’s character”.21

Since, as argued by this article, the RoL is not a prescriptive concept, conformity is not required. Despite Raz’s, Bingham’s and others’ explanations, the concept still lacks a dominant uniform definition (which is not atypical for such abstract terms) which only reaffirms its inability to be conformed with. For a better understanding of the concept, two solutions, though both inadequate to resolve the problem, can be proposed. If Raz tried to present conformity to the RoL as conformity to legal certainty, this should have been stated more directly and not under the (overly) generic concept of the RoL. While this definition would contribute to eliminating uncertainty, it would not contribute to defining the RoL, as it would act only as a restatement of other principles and would be essentially without its own essence. On the other hand, keeping the scope of the concept wide would distinguish the RoL from other principles but would also cause it to suffer from disproportionate conceptual uncertainty, rendering any potential prescriptive basis of the concept impossible to establish. This leads us to the fundamental problem explored by this article and to the problem pointed out by Raz himself that the RoL should not be taken blindly, on trust,22 which would be the only option when there is no clear definition.

As opposed to the theories discussed above, Griffith’s sceptical views destroy the concept as a whole but tend to be the most revealing. Griffith saw the RoL as essentially a political concept.23 Notwithstanding the lack of clear definition, the concept became “sacred and untouchable”24 and its special status is being maintained and reinforced by those who oppose any change of status quo – politicians.25 In addition to that, the RoL is also a common reference made by the judiciary in their judgments; Privacy International 26 being one of the most prominent examples. The Supreme Court emphasised the importance of effective judicial review in upholding the RoL and argued that the ouster clause in s.67(8) of RIPA 2000 27 does not disqualify the supervisory jurisdiction of the High Court. Nevertheless, the Court still did not fully overrule Parliament and ultimately recognised Parliament’s supremacy, stating that the ouster clause can exclude jurisdiction of judicial review when stated in “the most clear and explicit words”.28 However, according to Griffith, even the judiciary uses the RoL as a fig leaf 29 which allows them to exercise political power and should therefore not be considered as a strictly legalistic concept.

The incompatibility of the rule of law with the institutional framework

In this section, we turn to the issue of incompatibility of the RoL as interpreted in the aforementioned accounts and as a prescriptive concept with the British institutional framework.

Aristotle contrasted the rule of law, as a state where rulers are constrained by laws, with the rule of individuals, as a state where rulers govern arbitrarily.30 However, we ought to question whether we can distinguish between these two alternatives in the context of the British constitutional system. Laws are made by people – whether in the form of an individual or an assembly.31 As argued by Loughlin, laws are a “human creation” and can therefore not be placed above human will or government of men. Laws are unable to rule because ruling requires action.32 Humans are needed to enforce the law and, in that way, it is them who rule with laws. The state is therefore both the source and the subject of law,33 which means that in practice, the lawmaker (Parliament) is not always (or does not have to be) constrained by the law because all the power to change it lies in its hands. In enacting new laws, Parliament is realistically not accountable to anyone – not even to the already existing laws.34 The role of the Government will be analysed in the following section.

The reason for this is parliamentary sovereignty. The power of the Parliament to “make or unmake any law whatever” as described by Dicey 35 prevents the UK from having a prescriptive RoL in the sense of Bingham’s, Dicey’s and Raz’s interpretations in its legal system. Dicey provided his famous definition of parliamentary sovereignty, but also emphasised the importance of the second fundamental principle – the RoL. He argued that the two principles are not counterbalancing forces since Parliament favours the supremacy of the law.36 He pointed out two RoL characteristics in the British constitution: the stringent procedural requirements of the legislative process and supremacy of the law enforcing parliamentary sovereignty. The flaw of the former will be analysed in the following section whereas the issue of the latter characteristic is discussed here.

Dicey argued that the RoL constrains discretionary power of the government and reinforces the power of Parliament.37 Indeed, we cannot claim that the government’s exercise of power is not checked. Judicial review plays an important role in the court’s scrutiny of the legality, reasonableness and procedural propriety of the executive and administrative actions but does not play an important role in the context of the RoL.38 The more appropriate concept used would be rule by law,39 concentrating on the executive function, which is the primary task of the government. This concept also has much stronger prescriptive value, since compliance is required directly by the courts in judicial review. However, according to Schmitt, this concept should not be equated with the RoL, since rule by law can be found even in an absolute monarchy, with the monarch’s will being the law.40 While an absolute monarchy and judicial review are not two consonant concepts, the mechanism of judicial review could potentially be established in this kind of regime with the aim of scrutinising public bodies’ execution of laws, irrespective of the fact that the laws are the will of the monarch. In this sense, the law is the essential means through which governing is administered.41 Yet, this concept alone is inadequate for guaranteeing that institutional conditions make everything, and everyone subordinate to law because parliamentary sovereignty, as the central concept in British constitution, prevents that.

Rule by law and the procedure of judicial review are therefore not concerned with the way the law was enacted, which occupies a dominant position in the rule of law. The famous Entick v Carrington 42 case emphasised the notion of legality, supporting the idea of rule by law, but it constitutes only a part of the RoL definition, applying to the idea of implementing laws and not legislating. These laws are still not supreme on their own – as explained in the previous section, it is the Parliament that makes and unmakes them. The Government is certainly obliged to follow the laws enacted by Parliament, but their existence is very much dependent on the latter institution. Judicial review therefore scrutinises compliance with laws made by Parliament and protects laws, which ultimately protects parliamentary sovereignty;43 hence, the authority of the institution and not the law itself. In this spirit, the power of Parliament to legislate is not limited by any principle, and therefore Parliament always prevails over the RoL. This suggests that Dicey was wrong in asserting that the RoL is a constraint on the government. The RoL should actually be considered in the relationship with the law-maker – Parliament – to find who holds the supreme authority.

The question arising from Dicey’s argument that parliamentary sovereignty and the RoL work hand in hand is: Can there be two supreme bodies – the body of Parliament and the body of law? Parliament undoubtedly favours supremacy of the law once the law is created, insofar as it correspondingly guarantees Parliament’s authority. If the law stops serving the purpose Parliament intended it to serve, it will create a new law or repeal old law, regardless of the legitimacy of its decision. Thus, the concept cannot be prescriptive because it is theoretically irreconcilable with the fundamental principle of parliamentary sovereignty which allows Parliament to enact any law, even if it goes against certain RoL principles. The contemporary state of the British constitution allows us to trace the characteristics of the RoL in it but that does not mean that actors are guided by this principle or even compelled to observe it. It is important to remember that the question here is not “will Parliament repeal the supremacy of law, including the law over legislative procedure?” but “can Parliament repeal supremacy of law and change the law over its legislative procedure?” The fact that Parliament cannot bind its successors 44 does not change the argument – the law can still be changed for at least the mandate of the Parliament in question. Similarly, Parliament can also change its procedural rules of the legislating process which will be discussed in the next section.

Parliament has many times demonstrated willingness to create laws preventing citizens from damaging the state’s interests, with the RoL being evidently ignored. While the example might seem exceptional, it nevertheless portrays that Parliament can act contrary to the RoL. In Burmah Oil Company v Lord Advocate,45 the House of Lords decided that the British Government should have compensated Burmah Oil Company for damages done on their oil fields by British soldiers during the Second World War. In response to that, Parliament enacted the War Damage Act 1965, which retrospectively exempted the UK government from liability for war-related damages. This action goes against Bingham’s and Raz’s emphasis on prospectivity in the RoL. Moreover, the 1965 Act manifests the power vested in Parliament through parliamentary sovereignty which is above the courts’ decisions and above any specific law. The constitution does not guarantee the RoL but the rule of people, with no law being above the will of humans.

The rule of law in the context of the modern political system

In this section, the article will explore the use of the RoL as a political slogan and discuss the impossibility of embedding the RoL in Britain’s political structure.

The British constitution is based on the Westminster model. While power is divided into three branches of government, the traditional notion of the separation of powers, as proposed by Montesquieu, 46 does not apply in the UK political context.47 The Westminster Model in reality blurs the line between the legislative and executive branch. As a result, the party with the majority in the House of Commons both forms the government and also dominates the legislative process.48 Because of parliamentary sovereignty, the executive gains de facto sovereignty through its dual role in the legislative branch. The ruler is effectively also the legislator. It is true that a bill must go through the amending process of the House of Commons and the House of Lords, but in reality, the executive has proven to be well equipped to achieve its goals through procedural obstacles or even by modifying such obstacles. One example is the Parliament Act 1911.

In 1911, Lloyd George’s Liberal government proposed the Parliament Bill, which downgraded the power of the House of Lords in the legislative process. While all procedural requirements were observed in enacting the 1911 Act, the government clearly pressured the House of Lords to give their consent to the Act for their political purposes of developing social welfare.49 This is a primary example of the power of the executive changing the procedural laws when those do not serve them, without needing to perform a coup d’état. Contrary to Dicey’s theory which emphasised that the RoL is maintained by procedural safeguards in the process of legislating,50 the procedure did not provide any safeguard in this case. Since the Liberals and the coalition prevailed with their votes in the House of Commons and the Lords were passing the bill under a threat from the king to reconfigure the House, the goal of removing procedural backstops for all the future law-making was achieved purely through political conduits. In this sense, any law could be modified according to the wish of the ruling party, even if the change entailed major implications for legislative process and the structure of Parliament by, as Baroness Hale said: “redefining [Parliament] downwards”.51 The RoL is impotent in a battle with the rule of people. It was the laws that were adapted to the government’s position and not the government’s position adapted to the laws. It must be noted that while this is not an everyday occurrence, it is these rare cases that demonstrate our legal reality and how state actors are allowed to exercise their powers in practice.

This observation leads us to exploring the RoL as a protection from arbitrariness, as emphasised by Raz.52 According to Schmitt, in the RoL, a legal norm should be distinguishable from the rule of persons “whether it is an individual person, an assembly, or body whose will takes the place of a general norm that is equal for all and determined in advance”.53 Even though the alterations in the Parliament Act 1911 were proposed by the government (and not one single dictator), its enactment still contradicts Raz’s premise of protection from arbitrariness. Raz acknowledged the extent of power given to the government by law and proposed the RoL as a procedural safeguard against the danger of arbitrariness.54 Even though the Parliament Act went through all the stages of the legislative process and was therefore not arbitrarily made, substantive arbitrariness of the Government’s pursuit of its agenda permeated through the safeguards and nothing like the RoL prevents a similar enactment from taking place again. While the institutional conditions may protect the integrity of the system of rules,55 this protection is not always guaranteed, and certainly not via the concept of the RoL.

Looking towards the future

The concept remains ill-defined and vulnerable to potential abuses. That is why the RoL, as a prescriptive concept, should be removed from common use by both politicians and the judiciary. It should only be explored together with other abstract principles and aspirations promising a better and more just tomorrow (at least until a more uniform definition is found). Nevertheless, in its current state, the RoL cannot provide that. On the contrary, making false pretences and creating the impression of fictitious protection is precarious and threatens the permeation of arbitrariness and dictatorial regime into the British legal system.

Alternatively, in order to make the concept suitable for concrete use not only in political but also legal context, Parliament could consider codifying the RoL in an Act of Parliament and providing a uniform definition. By converting it into valid law, the institutions of the state would be legally obliged to follow the principle. Nevertheless, this solution should be recognised as defective for two reasons: firstly, there is no guarantee that this Act of Parliament would have longevity due to the no entrenchment rule. Secondly, the lack of uniform definition and the inherent vagueness both stand as major barriers on the path towards codification. Also, the fact that other legal principles possibly covered by the RoL, such as legal certainty and prospectivity, are to a great extent observed by lawmakers, the umbrella term of the RoL appears to be redundant in the context of the British constitution.

CONCLUSION

This article has demonstrated that the reason for the RoL being repeatedly violated and yet not being properly condemned or even judicially sanctioned is that the concept does not play any substantial role in the British constitutional regime. In fact, it does not really exist in the prescriptive sense. The RoL is desperately deprived of a concrete definition, which renders it unsuitable to be incorporated into the system as one of the constitutional principles. Moreover, the concept can only be recognised in a descriptive form while still being greatly incompatible with institutions of British constitution and being circumvented or even abused in the political context. The safest option for both the legal system and citizens would be to remove it altogether from our legal and political structure. Nevertheless, it appears to be much too useful for creating vagueness and false impression of untouchability of laws to be forgotten so easily.

I would like to thank Dr Raffael Fasel for his advice and comments that challenged me throughout my research. I would also like to thank him for his thought-provoking classes that introduced me to Public law and, inter alia, presented me with the concept of the rule of law. Moreover, I would like to thank all the editors that worked with me on the piece: Allison, Tai Shen and Maisie – thank you for all your suggestions. I would also like to thank my publications editor Ryan for his help and patience. Lastly, huge thanks go to the entire Notes team of the Editorial Board of LSE Law Review – you taught me more than I could ever expect. All errors and opinions are my own.


[1] The Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020.

[2] Law Society, ‘Westminster update: clauses allowing breach of international law removed from Internal Market Bill’ (Lawsociety.org.uk 2020) https://www.lawsociety.org.uk/topics/blogs/westminster-update-clauses-allowing-breach-of-international-law-removed-from-internal-market-bill accessed 7 February 2021.

[3] BZ Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge University Press 2004) 3.

[4] The Rt. Hon Lord Bingham of Cornhill KG, ‘The Rule of Law’ (Faculty of Law, University of Cambridge, 2006) 6 <https://www.cpl.law.cam.ac.uk/sites/www.law.cam.ac.uk/files/images/www.cpl.law.cam.ac.uk /legacy/Media/THE%20RULE%20OF%20LAW%202006.pdf > accessed 7 February 2021.

[5] Constitutional Reform Act 2005.

[6] Lord Bingham (n 4) 4.

[7] Joint Committee on Human Rights, Legislative Scrutiny: Immigration Bill, Eighth Report, Session 2013–14 (HL Paper 102, HC 935) para. 60.

[8] Lord Bingham (n 4) 6-10.

[9] A V Dicey, Introduction to the Study of the Law of the Constitution (8th edn, Macmillan 1915)110.

[10] Ibid 110.

[11] Ibid 114.

[12] Ibid 115.

[13] Lord Gardiner L.C., ‘Practice Statement (Judicial Precedent)’ (House of Lords, 1966).

[14] John Finnis, Natural Law and Natural Rights (OUP 1980) 270.

[15]Joseph Raz, ‘The Rule of Law and its Virtue’ (1977) 93 LQR 210, 229.

[16] Ibid 223.

[17] Ibid 220.

[18] Ibid 219-220.

[19] Ibid 228.

[20] Ronald Dworkin, A Matter of Principle (OUP 1985) 11.

[21] Ronald Dworkin, Law’s Empire (Hart Publishing 1998) 399.

[22] Ibid 222.

[23] J. A. G. Griffith, ‘The Political Constitution’ (1979) 42 MLR 1, 15.

[24] Ibid 15.

[25] Martin Loughlin, ‘The Political Constitution Revisited’ (2017) LSE Law, Society and Economy Working Papers 18/2017, 3 «https://eprints.lse.ac.uk/87572/1/Loughlin_Political%20Constitution_Author.pdf» accessed 7 February 2021.

[26] R (on the application of Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22.

[27] Regulation of Investigatory Powers Act 2000 (RIPA).

[28] Privacy International (n 26) [111].

[29] Griffith (n23).

[30] Iain Stewart, ‘Men of Class: Aristotle, Montesquieu and Dicey on ‘Separation of Powers’ and ‘The Rule of Law’ (2004) 4 Macquarie Law Review 187,194.

[31]Martin Loughlin, ‘The Rule of Law in European Jurisprudence’ (2009) European Commission for Democracy through Law (Venice Commission) 12.

[32] Ibid 2.

[33] Ibid.

[34] Andrew Le Sueur, Maurice Sunkin, Jo Eric Khushal Murkens, Public Law: Text, Cases and Materials(4th edn, OUP 2019)313.

[35] Dicey (n 9) 3.

[36] Ibid 268.

[37] Le Sueur et al. (n 34) 313.

[38] Ibid 612.

[39] Loughlin (n 31) 12.

[40] Carl Schmitt, Constitutional Theory (Duke University Press 2008) 181.

[41] Loughlin (n 31) 12.

[42] Entick v Carrington [1765] EWHC KB J98.

[43] R (on the application of Miller) v Prime Minister [2019] UKSC 41 [41].

[44] Le Sueur et al. (n 34) 69.

[45] Burmah Oil Company v Lord Advocate [1965] AC 75.

[46] Charles Louis de Secondat, Baron de Montesquieu, Complete works, vol. 1 The Spirit of Laws (T. Evans 1777) Book XI, Chap. VI.

[47] Le Sueur et al. (n 34) 149.

[48] Ibid 152.

[49] R (on the application of Jackson) v Attorney General [2006] 1 AC 262 [144]-[157] (Baroness Hale).

[50] Dicey (n 9) 268.

[51] R (Jackson) (n 50) [163].

[52] Raz (n 15) 219.

[53] Schmitt (n 40) 181.

[54] Select Committee on the Constitution, ‘Constitution - Sixth Report’ (House of Lords 2007) https://publications.parliament.uk/pa/ld200607/ldselect/ldconst/151/15115.htm accessed 6 March 2021.

[55] Loughlin (n 30) 14.

Article by Tevž Sitar
LLB (London School of Econonomics and Political Science) '23