Judicial interpretation of the rule of law

Historically, constitutional lawyers have extolled the virtues of the UK's adherence to the Rule of Law. In
countries with codified constitutions, judicial responsibility for the rule of the law is their power to
interpret, and apply terms of the constitution. In the UK, without a codified constitution, the judges
apply the common law to protect the rule of law.

The courts have interpreted the rule of law through a selection of cases that have examined the legality,
the irrationality or the procedural impropriety of the actions of the executive or public bodies, or
whether their actions conform to the Human Rights Act 1998. The main principles of the rule of law,
along with judicial interpretation are considered here.

i. No one must be punished by the state except for a breach of the law

Punishment without trial has been brought back into focus due to anti-terrorism legislation, including
Section 1 of the Anti-Terrorism, Crime and Security Act 2001 (now repealed).  In A and others v
Secretary of State for the Home Department  [2004] UKHL 56, the appellants were detained without trial
on grounds that they were suspected of involvement in terrorist activity and were alleged to be a danger
to the public. The appellants claimed that if they were returned to their home countries, they would be
killed and could not be deported. The Home Secretary certified that the detainees could be held
indefinitely without trial.

Lord Bingham of Cornhill, in the House of Lords: the appellants were all foreign non-UK nationals. None
had been subject to criminal charge. The right to liberty exists within Article 5(3) European Convention
on Human Rights (ECHR). The UK had sought to derogate from the ECHR under Article 15, claiming that
a 'state of emergency' existed in the light of the terrorist attacks of September 11, 2001. The House of
Lords found that indefinite detention without trial was always illegal; its justification had to be utterly
exceptional. Since the legislation was discriminatory against non-nationals, it was not justifiable.

Exam consideration: UK governments have used the interests of 'national security' and public safety in
response to terrorism in order to attempt to circumvent the rule of law on numerous occasions,
particularly since the events of September 11, 2001. Consider the competing interests of 'national
security' and the rule of law, which should take precedence? Be prepared to justify your answer.

ii. Government under law: equality before the law

Key Case: In Entick v Carrington (1765) 19 St Tr 1029, Entick was alleged to be the author of seditious
writings. Agents of the King, acting under the warrant of the Secretary of State broke into Entick's house
and removed his papers. The act was found to be common trespass, as it was not justified by any
specific legal authority; the Secretary of State was found liable in damages to Entick. Lord Camden CJ
held:

By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man
can ever set his food upon my ground without my licence, but he is liable to an action... If he admits the
fact, he is bound to shew by way of justification, that some positive law has empowered or excused him.

The defendants claimed they were acting under the authority of the Secretary of State, through the
power of the Constables Act 1750. The court found that the Secretary of State did not have power to
issue such a warrant, reiterating that state officials needed to have legal power to act and must abide by
the law.

In M v Home Office and another [1994] 1 AC 337 HL, M was a citizen of Zaire, he sought political asylum
in the UK; his claim was rejected as was his claim for judicial review of the decision. He was informed he
would be deported, but disputes between the Secretary of State and the Home Office led to his
deporting being order, then postponed, then reordered with neither side appearing to be aware of their
own legal powers. The Home Secretary was eventually held to be in contempt of court. The principle
that the executive is subject to full judicial oversight was upheld in this case.

In R v Mullen [2000] QB 520, CA the appellant had been unlawfully deported to the UK to face criminal
charges, Mullen claimed he had been forcibly brought to the UK, rather than extradited according to the
law. The case reached the Court of Appeal (CA) to decide whether his unlawful extradition rendered his
final conviction for conspiracy to cause explosions. The CA held that in order to uphold the rule of law
and administration of justice, his conviction must be quashed. The case confirms that whatever the
crime the appellant was accused of it does not justify the state acting outside the law.

iii. Individuals' rights are protected through the ordinary law and the ordinary court system

The process of judicial review allows an individual to challenge a decision of the executive through the
courts.

Key Case: In R (on the application of G) v IAT and another; R (on the application of M) v IAT and
another [2005] 2 All ER 165, CA, G and M had had their asylum applications rejected by the Secretary of
State and sought to appeal those decisions. Their appeals to the Adjudicator and IAT were also rejected.
The appellants no longer had access to judicial review proceedings and now had recourse to a review of
written submissions by a High Court judge. The latter process replaced under the Asylum and
Immigration [Treatment of Claimants] Act 2004, section 26(5)(a), the previous judicial review
proceedings in asylum cases. The CA found that although the statutory regime was not as extensive as
judicial review, it did provide access to judicial scrutiny and oversight of judicial action. It was not found
to be a breach of Article 6 (the right to a fair trial) of the ECHR.

iv. Legal certainty and non-retrospectivity

The rule against the retrospectivity of criminal law was upheld in the joint cases of R v Rimmington; R v
Goldstein [2006] 2 All ER 257, HL, in this case is was the legal certainty of the common law that was in
question.  The appellants submitted that the crime of causing public nuisance, which is governed in
common law and not statute, is too uncertain and lacks the predictability. The court found that within
the common law the issue of judicial precedent is an indispensable foundation upon which to uphold
legal certainty. The requirement was for sufficient rather than absolute certainty, which the HL upheld
was provided by the case by case basis of judicial precedent.

v. Fair hearing by an independent judiciary

In Matthews v Ministry of Defence [2003] 1 All ER 689, HL a former member of the Navy claimed
personal injury as a result of exposure to asbestos during his time as a member of the armed forces
between 1955 and 1968. The MoD claimed it was not liable due to section 10(1) Crown Proceedings Act
1974 gave immunity the Crown, although repealed in 1987. The HL held that section 10(1) 1974 Act did
not offend against the right to a fair trial under Article 6 ECHR, because this did not bar the courts from
considering the case; the Crown was permitted to limit liability for its tortious acts.

In R (on the application of Anderson) v Secretary of State for the Home Department  [2002] 4 All ER 1089,
HL A was convicted of murder and given a mandatory life sentence, which permits the prisoner to be
considered for release on licence. At this time, the Home Secretary held the power to set the tariff. Lord
Steyn held that "the power of the Home Secretary in England and Wales to decide on the tariff to be
served by mandatory life sentence prisoners is a striking anomaly in our legal system"[para 51]. He rules
that an accused may be tried and convicted only by the courts, on the basis of the rule of law since 1688.
The tariff had been left in the hands of the Home Secretary, but this is subject to review by the courts as
to whether the executive had breached Article 6 in affording the tariff.

vi. The rule of law and substantive judgments

Traditionally judicial review has been restricted to the legality, rationality, and procedural propriety of
the executive's action, omission rather than the review of the content of its decision. The following case
considers whether judicial review should not review the substance of the executive's decision in matters
related to human rights.

In R (on the application of Al Rawi and others) v Secretary of State for Foreign and Commonwealth
Affairs and another [2006] EWCA C 1279, the CA held that the role of the courts has expanded in human
rights cases to consider the proportionality of the decision, as well as its strict compliance with the law.
This was a consequence of the Human Rights Act 1998.

G. The UK Legal System and the Rule of Law

Exam Consideration: An exam question may require the writer to assess the continuing value of the rule
of law in contemporary legal debates. You should be aware of recent legal issues, which bring into
question the applicability of Dicey's (and other authors) conception of the rule of law.

Arbitrary and wide discretionary powers

Statutory provisions often afford public bodies the discretion to act in ways they consider to
be reasonable. This discretion can be wide and arbitrary, which provides a threat to the rule of law. This
occurs frequently in relation to issues of national security and immigration issues regarding suspected
terrorists.  The following statutory powers are relevant here:

 Section 3(5)(a) Immigration Act 1971 provides that an individual may be deported if the

 Section 21(1) Anti-terrorism, Crime and Security Act 2001 permits the Secretary of State to
deport terror suspects if they believe the person's presence is a threat to national security

In SSHD v Rehman  [2003] 1 AC 153, the provisions of the Immigration Act 1971 as amended by the
British Nationality Act 1981 were considered. The HL considered whether it was necessary to engage in,
promote, or encourage violent activity targeted at the United Kingdom, and that a high degree of
probability that the applicant was a threat to national security was necessary before she or he could be
deported. The HL held:

 The Secretary of State had discretion to determine what was conducive to the public good;
  The Secretary of State could take an overall view;

 Actions against other states which threaten the national security of the United Kingdom can also
be taken into account;

 The standard of proof of specific facts is based on the ordinary civil balance of probability.

In R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60, the Serious Fraud
Office was investigation allegations that British Aerospace paid enormous bribes to Saudi Arabian
officials while negotiating aircraft sales. The Saudi's threatened to stop cooperating with Britain in anti-
terrorism measures if the investigation was not halted and to withdraw from the deal. The Divisional
Court held that the SFO's decision to stop the investigation was based upon threats and incompatible
with the rule of law. The HL however, allowed the SFO a very broad discretion to consider the possibility
of the threat to British lives and national security if Saudi Arabia failed to carry on its intelligence sharing
in relation to the 'war on terror' and this was a relevant consideration in the exercise of his discretion.

Exam Consideration: This was a controversial decision, as it appears to undermine the rule of law
completely and was a response to threats from the Saudi government. James Wilson, in Halsbury's Law
Exchange  refers to this decision as 'The day we sold the Rule of Law':
http://www.halsburyslawexchange.co.uk/10541/

Privileges, immunities and the rule of law

Equality before the law is potentially undermined by special powers, privileges and immunities from
ordinary law that Parliament has granted.

 Article 9 of the Bill of Rights 1689 affords MPs absolute immunity from actions in the tort of
defamation arising out of anything said or done in the course of parliamentary debate or
proceedings.

 The International Organisations Act 2005 provides immunities and privileges on a number of

 The Trade Union and Labour Relations (Consolidation) Act 1992 confers a number of

 The Diplomatic Privileges Act 1964 brings the 1961 Vienna Convention on Diplomatic

Exam Consideration: Consider what the rationale may be for conferring certain immunities in this way,
do you agree?

The judicial extension of the criminal law

Dicey argued that 'a man may with us be punished for a breach of law, but he can be punished for
nothing else'; hence the courts should not be able to extend criminal offences laid down by parliament.

In Shaw v DPP [1962] AC 220, Shaw published a directory, which contained the names and addresses of
female sex workers. He was charged with conspiracy to corrupt public morals; conspiring with
advertisers. After being convicted he appealed on the grounds that there was no such offence as
'conspiracy to corrupt public morals'. The HL held (Lords Simonds for the majority) that there was a
residual judicial power to enforce the supreme and fundamental purpose of law, which in this case
included the protection of safety, order and moral welfare of the state against novel and unexpected
attacks. Lord Reid in dissent argued it was contrary to the rule of law for the judiciary to extend criminal
offences on public policy grounds.