Rule of Law
The rule of law, the meaning, and practical effect of the rule of law have been subjects of philosophical commentary for centuries in the context of the British constitution. The rule of law has been described in its practical manifestation to embrace the following principles.
A person should not be punishable or made to suffer in body or goods except for their breach of law established in the legal manner before the ordinary course of the land. This is in contrast to the existence of government based on arbitrary or discretionary powers.
A person is above the law. Both this person and the government are subject to ordinary law and the jurisdiction of courts and tribunals.
The general principles of the constitution are evolved by the courts in the context of a particular dispute.
An aspect of the rule is that it should not be retrospective penal law. The citizen should know at the time whether or not their conduct is unlawful. The courts interpret penal statutes narrowly and look to find an intention to impose retrospective liability.
Equally, in the context of criminal law, it is presumed that if an offense is greater than an element of moral fault or guilty mind/mens rea is required. Therefore, as is common for regulatory statutes, no intention is required, and an offense may be created without a moral fault element.
The European convention on human rights guarantees protection from retrospective legislation. Government itself is subject to the law as is any entity within the public system. This is central to the principle of equality above the law.
Public authorities may, of course, have greater powers in the individual context of their function. However, their equality before the law means that they are amenable to the courts in the same way as individuals.
There are certain immunities, narrow immunities from the principle. For example, in the context of parliamentary privileges which are mentioned separately.
The immune accountability of public officers and bodies of the law is reflected in the principle of judicial review. Under judicial review of administrative actions, the courts may find actions within or outside the powers of statute. They may find actions contrary to natural justice.
The citizen affected by an adverse decision may make an application for judicial review of its legality. They must have sufficient connection or local standby in order to bring the matter to court.
Judicial review is concerned with legality rather than the merits of a public decision. A power may be used for the wrong purpose. It may be an abuse of power. A policy may be adapted which is properly exercised discretion contemplated by statute.
The law imposes standards of reasonableness on public authority. Actions that are highly unreasonable may be categorized as outside the permissible scope of the powers concerned and accordingly unlawful.
The rules of natural justice require that there be an independent decision-maker. It also requires that the person whose interests are affected is entitled to fair procedures. In broad terms, the legality of public actions may be tested with reference to criteria of legality, rationality, and procedural fairness.
Certain limited actions of the executive are not subject to judicial review. They include dissolution of parliament, appointment of ministers, making of treaties, declaration of war, granting of orders.
The rule of law requires that the legal system exhibits certain features. The law must be — there must be a public system of courts to which the public may have access. The access must be real rather than notional. Adequate rights should be provided on affordable terms.
In the UK, the European Court of Human Rights has held that the denial of legal aid on appeals against conviction, for persons who could not afford representation, constituted a breach of the convention’s rights.
The rule of law requires that procedural fairness apply in the conduct of legal procedures. There must be an impartial judge. If there are jurors, they must not be biased. Juries must be reasonably representative of society.
The evidence obtained must be obtained by lawful means. It must be fairly presented and admissible. The proceedings must be conducted in a way that is impartial to the parties.
Trial by jury for serious criminal offenses and in civil cases involving defamation, false imprisonment, and allegations of fraud is regarded as a work of liberties. The decision of a jury is regarded as conclusive.
In principle, the jury selection should be unbiased and should lead to a jury representative of society. In practice, juries may be vetted, and certain categories may be exempted. The electoral register from whom they are chosen may be inaccurate. The process may not be entirely random.
Unlike the position in other jurisdictions, there is no detailed challenge of individual jurors and inquiry into their attitudes and perspectives. Jurors may be excused on the basis of personal knowledge and hardship conscientious objection.
They will not generally be excused on the general grounds such as race, religion, occupation, political beliefs.
The Police and Criminal Evidence Act 1984 sounds like a balance between the rights of the suspected and accused persons and the requirements of the criminal justice system. It follows a number of cases in which they were shown to be deficiencies and unsafe convictions under the existing systems, which raised doubts as to the integrity of the system.
The act provides that a confession obtained by oppression is inadmissible. The court must be satisfied that the confession has not been improperly obtained. This modified the existing position by which evidence under which the House of Lords had ruled in 1979 that evidence was admissible and there was no discretion to exclude even if it was unlawful and improperly obtained.
The mere fact that the evidence was unlawfully obtained does not mean that it will have excluded as unfair. The court may, having regard to the circumstances, including the circumstances on which it was obtained, exclude evidence if the admission would have an adverse effect on the fairness of the proceedings such that the court ought not to admit it.
The human rights act incorporates rights provided for under the European convention of human rights into domestic law. An important fact of the legislation is that the system could assert the convention directly in UK courts and were not required to undertake the process of applying to the court of human rights in Strasbourg. Judges do not have the power to set aside legislation or invalidate it. They may make a declaration of incompatibility with the convention. The parliament’s sovereign power is retained, but it is a matter for parliament to reform the law once so declared.
In practice, however, public bodies are required to comply with the convention. It is unlawful to fail to do so unless there is no alternative available because of the requirements of legislation. The courts must interpret legislation both primary and secondary in a manner in which, insofar as possible, to do so is compatible with the convention’s requirements.
The rule of law is recognized as a critical part of the European convention on human rights and in many other international human rights conventions.