Rule of Law

Focus: anti-terrorism laws

Outline:
1. General principles of the rule of law
a. Historical emergence – Aristotle
b. ‘Natural law’ and ‘Positivist’

2. AV Dicey’s 3 postulates
a. No man can be punished unless there is a breach of law
i. Terrorism
b. All is equal under the law
c. Rights and freedoms are protected under the common law courts

3. Criticisms of Dicey’s 3 postulates

a. Sir Ivor Jennings

4. Lord Bingham’s 8 sub-rules

a. The law must be clear, accessible, intelligible and predictable
b. Questions of legal rights should be resolved by application of the law and not by exercise of discretion
c. Law should apply equally to all, except to the extent that objective differences justify differentiation
d. The law must afford adequate protection of human rights
e. There must be proper channels for resolving conflicts without prohibitive cost or inordinate delay
f. All ministers and public officers must exercise power in good faith
g. Judicial and other adjudicative procedures must be fair and independent
h. There must be compliance by the state with its international law obligations

General Principles of the Rule of Law

The historical emergence of the rule of law was recognised by Aristotle, who stated ‘It is more proper that law should
govern than any one of the citizens’. This was popularised by A.V. Dicey in the 19th century, where according to him,
parliamentary sovereignty and the rule of law are the two pillars of the largely unwritten UK constitution.

The rule of law implies that everyone is subject to the law, irrespective of rank or class. In this sense, it can be contrasted
against autocracy or dictatorship, where the rulers are held above the law. This can be seen during the Holocaust,
where Hitler acquired unlawful arbitrary use of power to kill Jews during the Second World War. However, Raz (1979)

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states that the rule of law has ‘enduring importance as a central artefact in our legal and political culture’. A more
passionate view can be found in Karl Marx’s writings, where he believes the law is made by the capitalist for the
capitalist and thus, suggests that we should have a classless society where everyone is equal.

Sometimes, the rule of law can be seen as a means to justify an end. With this, two schools of thought form.
(1) Natural Law
a. Law based on morality. It is more of a theoretical approach, and supporters of this concept argues
that morality comes from God
b. Some legal principles have derived from the Bible – the principle of love thy neighbour can be seen in
Donoghue v Stephenson
c. They state that immoral law is not law – lex injusta noves lex
d. Natural law however, is broad and very subjective as morality is subjective, and interpretations of
what is ‘moral’ vary from one person to another.
e. Thomas Fuller and A.V. Dicey are supporters of this theory

(2) Positivist
a. Conversely, academicians like John Austin claims that law and morality are not the same thing, as law
does not have to derive from the word of God alone.
b. This is in line with Raz’s (1979) view that law can exit without a legal pursuing moral good.
c. Even if a law is immoral, if it is a valid act of Parliament it is considered law and we are bound by it.
Therefore, this school of thought requires the laws to pass and be enacted by Parliament for them to be
considered ‘law’.
Dworkin, a famous jurist, synthesises both concepts and advocates that law must go through the procedural processes,
but it cannot be law if it lacks humanity or morality.

All in all, what all these legal theorists are advocating on the rule of law, it is to meticulously protect an individual’s
rights and liberties as opposed to the State as a whole. Despite this, the rule of law has been described to be an “an
exceedingly elusive notion”. However, this can be reconciled with J. Raz, ‘The rule of law and its virtue’ (1977) – ‘It is
merely designed to minimise the harm to freedom and dignity which the law may cause in its pursuit of its goals however
laudable these may be.’

A.V. Dicey’s Three Postulates

(1) No man can be punished unless there is a breach of law

(2) All is equal under the law
(3) Civil liberties are protected under common law courts

FIRST POSTULATE

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The notion that no man is punishable unless there is a distinct breach of law centres around two areas. The first is where
this postulate prevents any retrospective laws to be passed and secondly, to prevent arbitrariness in law.

Retrospective laws are quite technical. The idea of retrospective effect means that once these laws are passed, it applies
not only to the case in hand but to all subsequent cases before it on the matter even though the events in question
occurred before the previous authority was overruled. The First Postulate guards any possible retrospectively passed laws
because it obviously creates injustice by subjecting those who weren’t liable, liable under a new law. Article 7 of the
European Convention of Human Rights (ECHR) also prohibits any imposition of criminal liability by virtue of the
Human Rights Act (1998).

This can be seen in the cases of Waddington v Miah, where the courts needed Article 7 to interpret the Immigration Act
1971 and ruled that it should only have a prospective effect. This can also be seen in the case of Phillips v Eyre (1870).

Nevertheless, the War Damage Act 1965 was passed retrospectively in light of the case of Burmah Oil v Lord Advocate
(1965), where it compensation to be awarded for the destruction of oil installations in war time was disallowed. The case
of R v R (marital rape) was also passed retrospectively, and held that husbands could be committed of rape against their
wives.

ANTI-TERRORISM LAWS
The second part of this postulate is to prevent arbitrariness in the law. This can be exemplified in anti-terrorism laws.
Such laws have been said to perpetuate suspicions based on culture and profiling. This all happened in the wake of the
‘9/11’ incident in the US and since then, countries have tightened their anti-terrorism laws. In light of this, the UK passed
the Anti-Terrorism, Crime and Disorder Act 2001 which created huge public affront on the fact that it allows for the
detention of non-nationals for an indefinite period without trial and deportation who are only suspected of being
terrorists, and hope for their release is through government sanctions. This is governed under Part 4 of the Act.

On one hand, it can be argued that such laws passed can be justified as it was passed in the interests of keeping citizens
safe through strict regulations. However, the more concerning matter is that it is an outright denial of a person’s right
to fair trial, which contravenes Article 6 of the European Convention of Human Rights. Moreover, it is discriminating
non-nationals. There is much difficulty when an innocent person could be held liable for crimes he did not commit.
Article 5 of the Convention also does not permit internment on security grounds.

However, this element of discrimination is not new, as the Holocaust is a prime example of how executives passing
arbitrary or draconian laws to eradicate Jewish persons. As established earlier, this goes against the rule of law, mainly
because of the autocratic behaviour of its leaders. A similar situation persisted in America after the Pearl Harbour
incident.

Several case laws have dealt with the anti-terrorism laws, the first being the case of A v Secretary of State for the Home
Department (Belmarsh 9 case) (2004) where the House of Lords held hat the indefinite detention of foreign prisoners
was incompatible (Section 4 HRA 1998) with the convention rights. The majority of the Law Lords argued that it was

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contrary to the ECHR because it discriminated between nationals and foreign nationals (Article 14 ECHR). As a
result, the HOL made a declaration of incompatibility under Section 4 of the HRA 1998 and allowed the appeals.

Lord Hoffman ‘The real threat to the life of the nation, in the sense of a people living in accordance with its traditional
laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what
terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.’

Lord Walker of Gestingthorpe (dissenting judge) – takes a different approach, and states that when the country is faced
with threats from ‘enemies’, there is a need for these anti-terrorist measures to be ‘strictly necessary’.

A year later, the government passed the Terrorism Act 2006 and introduced a control order, and allows for the
government to derogate from the ECHR when it is necessary. This was to ensure they were still protecting their
communities from terrorist violence. We can see the Act in operation in a recent case R v Ali [2018] EWCA Crim 547,
where the defendant’s conviction for the dissemination of three videos supporting the Islamic State was upheld, after
considering whether such dissemination of videos contravened a defendant’s right to freedom of expression pursuant to
Article 10 of the ECHR.

In the case of Chahal v UK (1997), the UK government’s decision of deporting Mr Chahal, an Indian citizen, was held to
be against Article 3 of ECHR on the prohibition of torture or degrading treatment. However, it is submitted that if this
happened after the 2006 Act was enacted, the decision may not be in favour of Chahal due to the potential of the courts
derogating from convention rights.

This issue of arbitrariness in law is further exemplified in royal prerogatives, which are arbitrary in nature as it is the
residual powers of the Monarch (A.V. Dicey). It is important to note that the courts will not intervene in non-justiciable
matters such as national security. However, the exercise of royal prerogative was capable of being adjudicated by the
courts under judicial review as per The GCHQ case.

Criticism – Sir Ivor Jennings

 Whens Dicey assumed that discretionary use of powers is inconsistent with the first postulate, it is a week
understanding of limited Parliamentary time.

Good quote to conclude with:

Baroness Hale of Richmond in the Belmarsh case – states that the will of the majority in order to give effect to
democracy ‘cannot prevail if it is inconsistent with the equal rights of minorities’.
SECOND POSTULATE

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The second postulate is on how all is equal before the law. This means that citizens and public bodies are subjected to
the law. The Early evidence of such adherence to this postulate is the Bill of Rights 1689, where the even the Monarch
could not be above the law.

In the case of Ex parte Fire Brigades Union and Others, despite the authority and royal prerogatives have, the case is a
prime example of how the courts maintain strict observance of this postulate by preventing executives to use the privilege
of prerogative to defeat an Act of Parliament. This is to ensure democracy and to ensure that the law prevails.

Sir Ivor Jennings noted, however, that some members of the judiciary, legislature and executive are immune from
certain suits, which is called diplomatic immunity. This goes to show that not all parties are equal, as there are
distinctions that exist between groups and individuals within the infrastructure of the State itself.

However, the courts have played a pivotal role in ensuring equality in the law. The case of Entick v Carrington held that
the Secretary of State’s act of trespassing into another’s property was held to be unlawful as it interfered with an
individual’s right to private life as per Article 8 of the ECHR. Furthermore, the Home Secretary was held liable for
contempt of court in M v Home Office for failing to abide by a High Court order which ordered a Zairian teacher
claiming refugee status.

THE THIRD POSTULATE

Civil liberties are protected under the common law courts.

This postulates reflects Dicey’s preference for common law protection of human rights over formulated code of rights.
The courts will intervene between Government and citizens in granting a remedy to individuals whose rights have been
infringed to prevent any abuse of power exercised by the executive. This is in line with Lord Woolf’s statement “if
Parliament did the unthinkable, then I would say that courts would also be required to act in a manner which was
without precedent.”

However, it must be noted that the role of the courts do not protect individual rights from legislative invasion because
Parliamentary sovereignty allows parliament to put forward legislation to nullify decisions against the executives. But
then again, the power of the courts is reflected in R v Jackson (2005) where Lord Hope and Lord Steyn said that if
Parliament used parliament sovereignty to abuse power, the courts would step in to check the powers of Parliament.

However, the strong protection of human rights by common law can be seen through the common law writ of habeas
corpus, which gave protection to individual liberty more effectively than statutes. A person can make an application for
this writ if someone is detained unlawfully to bring the person within 24 hours of detainment.

Today, the Human Rights Act 1998 offers protection to individuals by virtue of statute, thus sharing the burden of the
court to protect civil liberties. However, it does not provide full protection to citizens as if can be easily repealed.

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Moreover when it comes to substantive law, the Act is usually applied vertically against public authorities and does
not horizontal rights.

SECTION 1 OF THE CONSTITUTIONAL REFORM ACT 2005 is the only statute expressly referring to the concept
of the rule of law. It states that whatever reforms brought about by Tony Blair’s government ‘does not adversely effect –
(a) the existing constitutional principle of the rule of law, or (b) the Lord Chancellor’s existing constitutional role in
relation to that principle’.

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Lord Bingham’s 8 sub-rules

Lord Bingham in his House of Lords speech in 2006 laid down eight principles in which he believes are the modern form
of the rule of law.

(1) The law must be clear, accessible, intelligible and predictable

a. In order for the law to be effective, the law must be able to account for laypersons to comprehend the
law. However, in reality, this requirement is complex. For example, judges may differ on the law and
the diversity in opinion may lead to further complications.
b. In terms of statutes, there have been interpretive difficulties among judges itself. In 2004, 3500 pages
of primary legislation was created. This makes the law bulky and difficult to understand.

(2) Matters of legal rights should be resolved by application of the law and not by discretion
a. Element of discretion especially prevalent in immigration matters. The regulations governing the
immigration sectors are not uniformed. The same power is given to judges, especially in debt
collection matters.
b. This discretionary element is designed to allow for a ‘human’ factor. However, they do sacrifice
consistency in the application of the law in exchange. The
c. Law should apply equally to all, except to the extent that objective differences justify differentiation

(3) Laws of the land should apply equally to all, except to the extent that objective differences justify
differentiation
a. There are special laws for the handicapped, mentally ill, children and prisoners.

(4) The law must afford adequate protection of human rights

a. For example in the UK, there is the HRA 1998.
(5) There must be proper channels for resolving conflicts without prohibitive cost or inordinate delay
(6) All ministers and public officers must exercise their power in good faith
(7) Judicial and other adjudicative procedures must be fair and independent
(8) There must be compliance by the State and its international law obligations