morality’.
182
On this view an individual will have a right to the legal answer which
is forthcoming from the application of the above test.
Dworkin accepts the formal idea of the rule of law set out above, labelling this the
‘rule book’ conception. This requires that the government should never exercise
power against individuals except in accordance with rules which have been set out
in advance and made available to all.
183
Such values feature in any serious theory of
justice.
184
However as Dworkin notes, this says little if anything about the content
of the laws which exist within a legal system. Those who restrict the rule of law in
this manner care about the content of the law, but regard this as a matter of
substantive justice, which is ‘an independent ideal, in no sense part of the ideal of
the rule of law’.
185
Dworkin argues that we should however also recognise a rights-based conception
of the rule of law. On this view citizens have moral rights and duties with respect
to one another, and political rights against the state. These moral and political
rights should be recognised in positive law, so that they can be enforced by citizens
through the courts. The rule of law on this conception is the ideal of rule by an
accurate public conception of individual rights. In the words of Dworkin, this view
of the rule of law ‘does not distinguish, as the rule book conception does, between
the rule of law and substantive justice; on the contrary it requires, as part of the
ideal of law, that the rules in the book capture and enforce moral rights’.
It does
not mean that this conception of the rule of law is consistent with only one theory
of justice or freedom. There is no such argument. It does mean that it is not
independent of the particular theory of justice, or vision of freedom, which
constitutes its content at any point in time.
Similar themes have been advanced by Sir John Laws, writing extra-judicially. In
an important series of articles he articulated the role of the courts in the protection
of fundamental rights.
187 The detailed nature of the argument is not of immediate
concern to us here. Suffice it to say for the present that Sir John Laws presented an
essentially rights-based conception of law and the role of the judge in cases
involving fundamental rights. He posited a higher order law which was binding on
the elected Parliament, with the courts as the guardian of both fundamental
individual rights, and what may be termed structural constitutional rights.
The thesis is premised on a particular conception of liberalism and individual
autonomy, with a divide drawn between positive and negative rights. The rule of
law is held to encompass an attachment to freedom, certainty and fairness. The
first of these elements is the substantive component of the rule of law, while the
second and the third bring in the more traditional attributes of the formal rule of
law.
189 The important recent lecture by Lord Bingham on the rule of law is also relevant
in this regard, more especially because it was given against the background of the
Constitutional Reform Act 2005.
190
Lord Bingham articulates eight principles that
comprise the rule of law. Certain of these principles address the more formal
dimensions of the rule of law. These include the idea that the law must be
accessible, and so far as possible, intelligible, clear and predictable; that questions
of legal right and liability should ordinarily be resolved by application of the law
and not the exercise of discretion; and that means should be provided for resolving
without prohibitive cost or inordinate delay bona fide civil disputes which the
parties themselves are unable to resolve.
It is however clear that Lord Bingham considers the rule of law as extending
beyond these basic precepts. He regards it as including the central idea that the
laws of the land should apply equally to all, save to the extent that objective
differences justify differentiation, and that it demands that the law must afford
adequate protection for fundamental rights. Lord Bingham expressly confronts the
objection advanced by Raz to the inclusion of fundamental rights within the rubric
of the rule of law, but disagrees with him in the following terms.
191
A state which savagely repressed or persecuted sections of its people could not in
my view be regarded as observing the rule of law, even if the transport of the
persecuted minority to the concentration camp or the compulsory exposure of the
female children on the mountainside were the subject of detailed laws duly enacted
and scrupulously observed. So to hold would, I think, be to strip the existing
constitutional principle affirmed by section 1 of the 2005 Act of much of its virtue
and infringe the fundamental compact which … underpins the rule of law.
It is equally clear that Lord Bingham views the principles of judicial review as
having their foundation in the rule of law. Thus he states that ‘ministers and public
officers at all levels must exercise the powers conferred on them reasonably, in
good faith, for the purpose for which the powers were conferred and without
exceeding the limits of such powers’,
192 and ‘adjudicative procedures provided by the state should be fair’.
193 Jowell has also articulated a view of the rule of law, which has both a formal and a
substantive dimension.
194 He accepts that one must be careful about equating the
rule of law with the substance of particular rules. He accepts also that a significant
part of the rule of law is concerned with procedure or form as opposed to
substance. Jowell does however believe that the rule of law has a substantive
dimension. He perceives the rule of law as a principle of institutional morality and
as a constraint on the uninhibited exercise of government power. The practical
implementation of the rule of law takes place primarily through judicial review. Its
substantive dimension is manifest in the judiciary’s willingness to strike down
administrative or executive action if it is unreasonable, arbitrary or capricious.
Allan’s interpretation of the rule of law also contains an admixture of formal and
substantive elements.
195 He argues that we should go beyond the formal conception of the rule of law,
but that we should stop short of regarding the rule of law as the expression of any particular theory of substantive justice. The rule of law on this view does not entail commitment to any particular vision of the public
good or any specific conception of social justice, but does require that all legal
obligations be justified by appeal to some such vision. The rule of law should
embrace, in addition to its formal attributes, ideals of equality and rationality,
proportionality and fairness, and certain substantive rights. These are said to
constitute central components of any recognisably liberal theory of justice, while
leaving the scope and content of the rights and duties which citizens should
possess largely as a matter for independent debate and analysis. Formal equality is
to be supplemented by a more substantive equality, which requires that relevant
distinctions must be capable of reasoned justification in terms of some conception
of the common good. Allan’s theory also embraces certain substantive rights,
namely freedoms of speech, conscience, association, and access to information. It
is recognised that there will be other rights within a liberal polity, which should be
faithfully applied, but these are not regarded as a constituent part of the rule of
law.
It should be recognised that any approach of the kind under examination will
require some choice as to what are to count as fundamental rights, and the more
particular meaning ascribed to such rights. This choice will reflect assumptions as
to the importance of differing interests in society. This is unavoidable. It is of
course true that any democracy to be worthy of the name will have some
attachment to particular liberty and equality interests. If, however, we delve
beneath the surface of phrases such as liberty and equality then significant
differences of view become apparent even amongst those who subscribe to one
version or another of liberal belief. This leaves entirely out of account the issue as
to how far social and economic interests ought to be protected. It also fails to take
account of other visions of democracy, of a communitarian rather than liberal
nature, which might well interpret the civil/political rights and the social/economic
rights differently. It is therefore neither fortuitous, nor surprising, that in other
common law systems which possess constitutionally enshrined rights, such as the
United States and Canada, there is considerable diversity of opinion even amongst
those who support a rights-based approach, as to whether this should be taken to
mean some version of liberalism, a pluralist model, or a modified notion of
republicanism.
This point is equally true of ideas such as legality, rationality, participation,
openness, proportionality, procedural fairness and the like, which can be given
interpreted differently depending upon the more general scheme into which they
are to fit.
The consequences of breach of the rule of law in the sense considered within this
section should also be addressed. It is important, as when discussing other versions
of the concept, to distinguish between the consequences of breach of the rule of
law in relation to primary statute and in relation to other measures.
The short answer in relation to a primary statute that violates the rule of law is as
follows. The fact that a statute does not conform to this conception of the rule of
law does not in itself lead to its invalidation. The UK courts have not traditionally
exercised the power of constitutional review to annul primary statutes for failure to
conform to fundamental rights, or other precepts of the rule of law that constitute
the principles of judicial review. This proposition must nonetheless be qualified in
three ways.
First, there are statements by judges countenancing the possibility that the courts
might refuse to apply an Act of Parliament in certain extreme circumstances. The
examples tend to be of (hypothetical) legislation that is morally repugnant, or of
legislation through which Parliament seeks to re-order the constitutional structure
by abolishing judicial review, by making illegitimate use of the Parliament Acts or
by extending very considerably the life of a current Parliament. It should moreover
be recognised that the case law authority for the traditional proposition that courts
will not invalidate or refuse to apply statute is actually rather thin. There are to be
sure many judicial statements extolling the sovereignty of Parliament, but they are
principally just that, judicial statements rather than formal decisions. Insofar as
there are formal decisions that could be said to be based on the traditional
proposition, the facts of such cases were generally relatively innocuous. They were
a very long way from the types of case where courts might consider it to be
justified to refuse to apply a statute, which also means that such cases could be
readily distinguished should a court feel minded to do so.
Secondly, one who subscribes to the version of the rule of law discussed in this
section might well argue that courts should generally exercise the ultimate power
to invalidate statute for failure to comply with constitutionally enshrined rights, or
with rights that are regarded as fundamental or foundational even where they are
not formally enshrined in a written constitution. Dworkin is a prominent exponent
of this view. The literature on this topic is vast, with the debate for and against
such judicial power being replayed in successive academic generations.
Thirdly, courts or judges who subscribe to the conception of the rule of law
discussed in this section have in any event powerful interpretive tools at their
disposal through which to read legislation so that it does not violate fundamental
rights or other facets of the rule of law. Thus even prior to the Human Rights Act
1998, the courts made it clear through the principle of legality that statutes would
be read so as to conform to such rights. If Parliament intended to infringe or limit
fundamental rights then this would have to be stated expressly in the legislation, or
be the only plausible reading of the statutory language. Legislation was therefore
read subject to a principle of legality, which meant that fundamental rights could
not be overridden by general or ambiguous words. This was, said Lord Hoffmann,
because there was too great a risk that the full implications of their unqualified
meaning might have passed unnoticed in the democratic process. In the absence of
express language or necessary implication to the contrary, the courts would
therefore presume that even the most general words were intended to be subject to
the basic rights of the individual. Parliament had, therefore, to squarely confront
what it was doing and accept the political cost. An interpretive approach is clearly
evident once again in the Human Rights Act 1998, section 3, which provides that
‘so far as it is possible to do so, primary legislation and subordinate legislation
must be read and given effect in a way which is compatible with the Convention
rights’. Section 3 does not, however, affect the validity, continuing operation or
enforcement of any incompatible primary legislation. Where a court is satisfied
that primary legislation is incompatible with a Convention right then it can,
pursuant to section 4 of the HRA, make a declaration of that incompatibility.
The consequence of breach of the rule of law in relation to measures other than
primary statute is more straightforward. Insofar as the rule of law is regarded as
the foundation of the principles of judicial review then it follows that breach of the
rule of law, manifested through breach of one of the more particular principles of
judicial review, can lead to annulment of the measure. This says nothing about
whether the judicial decision will be controversial or not. The great many judicial
review decisions generate no political controversy, but there will inevitably be
instances where Parliament, or more usually the relevant minister, feels that the
court’s judgment was ‘wrong’ in some way. There will more generally be wide-ranging academic debate about the principles of judicial review and the way in
which they are applied in particular cases.
It is fitting to conclude this paper by reverting to Lord Bingham’s lecture, the
catalyst for which was the statutory mention of the rule of law in the
Constitutional Reform Act 2005, section 1. The importance of the interpretive
tools used by courts is apparent once again in the following extract.
[T]he statutory affirmation of the rule of law as an existing constitutional principle
196
and of the Lord Chancellor’s existing role in relation to it does have an important
consequence: that the judges, in their role as journeymen and judgment-makers,
are not free to dismiss the rule of law as meaningless verbiage, the jurisprudential
equivalent of motherhood and apple pie, even if they were inclined to do so. They
would be bound to construe a statute so that it did not infringe an existing
constitutional principle, if it were reasonably possible to do so. And the Lord
Chancellor’s conduct in relation to that principle would no doubt be susceptible,
in principle, to judicial review.
182
On this view an individual will have a right to the legal answer which
is forthcoming from the application of the above test.
Dworkin accepts the formal idea of the rule of law set out above, labelling this the
‘rule book’ conception. This requires that the government should never exercise
power against individuals except in accordance with rules which have been set out
in advance and made available to all.
183
Such values feature in any serious theory of
justice.
184
However as Dworkin notes, this says little if anything about the content
of the laws which exist within a legal system. Those who restrict the rule of law in
this manner care about the content of the law, but regard this as a matter of
substantive justice, which is ‘an independent ideal, in no sense part of the ideal of
the rule of law’.
185
Dworkin argues that we should however also recognise a rights-based conception
of the rule of law. On this view citizens have moral rights and duties with respect
to one another, and political rights against the state. These moral and political
rights should be recognised in positive law, so that they can be enforced by citizens
through the courts. The rule of law on this conception is the ideal of rule by an
accurate public conception of individual rights. In the words of Dworkin, this view
of the rule of law ‘does not distinguish, as the rule book conception does, between
the rule of law and substantive justice; on the contrary it requires, as part of the
ideal of law, that the rules in the book capture and enforce moral rights’.
It does
not mean that this conception of the rule of law is consistent with only one theory
of justice or freedom. There is no such argument. It does mean that it is not
independent of the particular theory of justice, or vision of freedom, which
constitutes its content at any point in time.
Similar themes have been advanced by Sir John Laws, writing extra-judicially. In
an important series of articles he articulated the role of the courts in the protection
of fundamental rights.
187 The detailed nature of the argument is not of immediate
concern to us here. Suffice it to say for the present that Sir John Laws presented an
essentially rights-based conception of law and the role of the judge in cases
involving fundamental rights. He posited a higher order law which was binding on
the elected Parliament, with the courts as the guardian of both fundamental
individual rights, and what may be termed structural constitutional rights.
The thesis is premised on a particular conception of liberalism and individual
autonomy, with a divide drawn between positive and negative rights. The rule of
law is held to encompass an attachment to freedom, certainty and fairness. The
first of these elements is the substantive component of the rule of law, while the
second and the third bring in the more traditional attributes of the formal rule of
law.
189 The important recent lecture by Lord Bingham on the rule of law is also relevant
in this regard, more especially because it was given against the background of the
Constitutional Reform Act 2005.
190
Lord Bingham articulates eight principles that
comprise the rule of law. Certain of these principles address the more formal
dimensions of the rule of law. These include the idea that the law must be
accessible, and so far as possible, intelligible, clear and predictable; that questions
of legal right and liability should ordinarily be resolved by application of the law
and not the exercise of discretion; and that means should be provided for resolving
without prohibitive cost or inordinate delay bona fide civil disputes which the
parties themselves are unable to resolve.
It is however clear that Lord Bingham considers the rule of law as extending
beyond these basic precepts. He regards it as including the central idea that the
laws of the land should apply equally to all, save to the extent that objective
differences justify differentiation, and that it demands that the law must afford
adequate protection for fundamental rights. Lord Bingham expressly confronts the
objection advanced by Raz to the inclusion of fundamental rights within the rubric
of the rule of law, but disagrees with him in the following terms.
191
A state which savagely repressed or persecuted sections of its people could not in
my view be regarded as observing the rule of law, even if the transport of the
persecuted minority to the concentration camp or the compulsory exposure of the
female children on the mountainside were the subject of detailed laws duly enacted
and scrupulously observed. So to hold would, I think, be to strip the existing
constitutional principle affirmed by section 1 of the 2005 Act of much of its virtue
and infringe the fundamental compact which … underpins the rule of law.
It is equally clear that Lord Bingham views the principles of judicial review as
having their foundation in the rule of law. Thus he states that ‘ministers and public
officers at all levels must exercise the powers conferred on them reasonably, in
good faith, for the purpose for which the powers were conferred and without
exceeding the limits of such powers’,
192 and ‘adjudicative procedures provided by the state should be fair’.
193 Jowell has also articulated a view of the rule of law, which has both a formal and a
substantive dimension.
194 He accepts that one must be careful about equating the
rule of law with the substance of particular rules. He accepts also that a significant
part of the rule of law is concerned with procedure or form as opposed to
substance. Jowell does however believe that the rule of law has a substantive
dimension. He perceives the rule of law as a principle of institutional morality and
as a constraint on the uninhibited exercise of government power. The practical
implementation of the rule of law takes place primarily through judicial review. Its
substantive dimension is manifest in the judiciary’s willingness to strike down
administrative or executive action if it is unreasonable, arbitrary or capricious.
Allan’s interpretation of the rule of law also contains an admixture of formal and
substantive elements.
195 He argues that we should go beyond the formal conception of the rule of law,
but that we should stop short of regarding the rule of law as the expression of any particular theory of substantive justice. The rule of law on this view does not entail commitment to any particular vision of the public
good or any specific conception of social justice, but does require that all legal
obligations be justified by appeal to some such vision. The rule of law should
embrace, in addition to its formal attributes, ideals of equality and rationality,
proportionality and fairness, and certain substantive rights. These are said to
constitute central components of any recognisably liberal theory of justice, while
leaving the scope and content of the rights and duties which citizens should
possess largely as a matter for independent debate and analysis. Formal equality is
to be supplemented by a more substantive equality, which requires that relevant
distinctions must be capable of reasoned justification in terms of some conception
of the common good. Allan’s theory also embraces certain substantive rights,
namely freedoms of speech, conscience, association, and access to information. It
is recognised that there will be other rights within a liberal polity, which should be
faithfully applied, but these are not regarded as a constituent part of the rule of
law.
It should be recognised that any approach of the kind under examination will
require some choice as to what are to count as fundamental rights, and the more
particular meaning ascribed to such rights. This choice will reflect assumptions as
to the importance of differing interests in society. This is unavoidable. It is of
course true that any democracy to be worthy of the name will have some
attachment to particular liberty and equality interests. If, however, we delve
beneath the surface of phrases such as liberty and equality then significant
differences of view become apparent even amongst those who subscribe to one
version or another of liberal belief. This leaves entirely out of account the issue as
to how far social and economic interests ought to be protected. It also fails to take
account of other visions of democracy, of a communitarian rather than liberal
nature, which might well interpret the civil/political rights and the social/economic
rights differently. It is therefore neither fortuitous, nor surprising, that in other
common law systems which possess constitutionally enshrined rights, such as the
United States and Canada, there is considerable diversity of opinion even amongst
those who support a rights-based approach, as to whether this should be taken to
mean some version of liberalism, a pluralist model, or a modified notion of
republicanism.
This point is equally true of ideas such as legality, rationality, participation,
openness, proportionality, procedural fairness and the like, which can be given
interpreted differently depending upon the more general scheme into which they
are to fit.
The consequences of breach of the rule of law in the sense considered within this
section should also be addressed. It is important, as when discussing other versions
of the concept, to distinguish between the consequences of breach of the rule of
law in relation to primary statute and in relation to other measures.
The short answer in relation to a primary statute that violates the rule of law is as
follows. The fact that a statute does not conform to this conception of the rule of
law does not in itself lead to its invalidation. The UK courts have not traditionally
exercised the power of constitutional review to annul primary statutes for failure to
conform to fundamental rights, or other precepts of the rule of law that constitute
the principles of judicial review. This proposition must nonetheless be qualified in
three ways.
First, there are statements by judges countenancing the possibility that the courts
might refuse to apply an Act of Parliament in certain extreme circumstances. The
examples tend to be of (hypothetical) legislation that is morally repugnant, or of
legislation through which Parliament seeks to re-order the constitutional structure
by abolishing judicial review, by making illegitimate use of the Parliament Acts or
by extending very considerably the life of a current Parliament. It should moreover
be recognised that the case law authority for the traditional proposition that courts
will not invalidate or refuse to apply statute is actually rather thin. There are to be
sure many judicial statements extolling the sovereignty of Parliament, but they are
principally just that, judicial statements rather than formal decisions. Insofar as
there are formal decisions that could be said to be based on the traditional
proposition, the facts of such cases were generally relatively innocuous. They were
a very long way from the types of case where courts might consider it to be
justified to refuse to apply a statute, which also means that such cases could be
readily distinguished should a court feel minded to do so.
Secondly, one who subscribes to the version of the rule of law discussed in this
section might well argue that courts should generally exercise the ultimate power
to invalidate statute for failure to comply with constitutionally enshrined rights, or
with rights that are regarded as fundamental or foundational even where they are
not formally enshrined in a written constitution. Dworkin is a prominent exponent
of this view. The literature on this topic is vast, with the debate for and against
such judicial power being replayed in successive academic generations.
Thirdly, courts or judges who subscribe to the conception of the rule of law
discussed in this section have in any event powerful interpretive tools at their
disposal through which to read legislation so that it does not violate fundamental
rights or other facets of the rule of law. Thus even prior to the Human Rights Act
1998, the courts made it clear through the principle of legality that statutes would
be read so as to conform to such rights. If Parliament intended to infringe or limit
fundamental rights then this would have to be stated expressly in the legislation, or
be the only plausible reading of the statutory language. Legislation was therefore
read subject to a principle of legality, which meant that fundamental rights could
not be overridden by general or ambiguous words. This was, said Lord Hoffmann,
because there was too great a risk that the full implications of their unqualified
meaning might have passed unnoticed in the democratic process. In the absence of
express language or necessary implication to the contrary, the courts would
therefore presume that even the most general words were intended to be subject to
the basic rights of the individual. Parliament had, therefore, to squarely confront
what it was doing and accept the political cost. An interpretive approach is clearly
evident once again in the Human Rights Act 1998, section 3, which provides that
‘so far as it is possible to do so, primary legislation and subordinate legislation
must be read and given effect in a way which is compatible with the Convention
rights’. Section 3 does not, however, affect the validity, continuing operation or
enforcement of any incompatible primary legislation. Where a court is satisfied
that primary legislation is incompatible with a Convention right then it can,
pursuant to section 4 of the HRA, make a declaration of that incompatibility.
The consequence of breach of the rule of law in relation to measures other than
primary statute is more straightforward. Insofar as the rule of law is regarded as
the foundation of the principles of judicial review then it follows that breach of the
rule of law, manifested through breach of one of the more particular principles of
judicial review, can lead to annulment of the measure. This says nothing about
whether the judicial decision will be controversial or not. The great many judicial
review decisions generate no political controversy, but there will inevitably be
instances where Parliament, or more usually the relevant minister, feels that the
court’s judgment was ‘wrong’ in some way. There will more generally be wide-ranging academic debate about the principles of judicial review and the way in
which they are applied in particular cases.
It is fitting to conclude this paper by reverting to Lord Bingham’s lecture, the
catalyst for which was the statutory mention of the rule of law in the
Constitutional Reform Act 2005, section 1. The importance of the interpretive
tools used by courts is apparent once again in the following extract.
[T]he statutory affirmation of the rule of law as an existing constitutional principle
196
and of the Lord Chancellor’s existing role in relation to it does have an important
consequence: that the judges, in their role as journeymen and judgment-makers,
are not free to dismiss the rule of law as meaningless verbiage, the jurisprudential
equivalent of motherhood and apple pie, even if they were inclined to do so. They
would be bound to construe a statute so that it did not infringe an existing
constitutional principle, if it were reasonably possible to do so. And the Lord
Chancellor’s conduct in relation to that principle would no doubt be susceptible,
in principle, to judicial review.
No comments:
Post a Comment