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attacking the great issues of poverty and inequality and in establishing a welfare
state, just as, in more recent years, thoroughgoing policies concerning trade
unions, local government, devolution and the privatisation of public-sector
undertakings were put into e¬ect by means of the same sovereign authority.
(See Ewing, ˜Human rights, social democracy and constitutional reform™, in
C Gearty and A Tomkins (eds), Understanding Human Rights (1996), ch 3.)
However serviceable for realising the goals of elected governments, must
a legally unlimited power be regarded as something alien to the idea of consti-
tutionalism, creating a constant danger of arbitrary rule? It is ˜Parliament™s
76 British Government and the Constitution

sovereign power™, said Lord Scarman, ˜more often than not exercised at the will
of an executive sustained by an impregnable majority, that has brought about
the modern imbalance in the legal system™ (English Law “ The New Dimension
(1974), p 74). Or is constitutional balance preserved by constraints on
Parliament such as those we have noted above as well as by countervailing
features of the democratic system: elections, opposition parties in Parliament,
organised groups in civil society?

Jeffrey Goldsworthy, The Sovereignty of Parliament: History
and Philosophy (1999)
What is at stake is the location of ultimate decision-making authority “ the right to the ˜final
word™ “ in a legal system. If the judges were to repudiate the doctrine of parliamentary
sovereignty, by refusing to allow Parliament to infringe unwritten rights, they would be
claiming that ultimate authority for themselves. In settling disagreements about what
fundamental rights people have, and whether particular legislation is consistent with them,
the judges™ word rather than Parliament™s would be final. Since virtually all significant moral
and political controversies in contemporary Western societies involve disagreements about
rights, this would amount to a massive transfer of political power from parliaments to judges.
Moreover, it would be a transfer of power initiated by the judges, to protect rights chosen
by them, rather than one brought about democratically by parliamentary enactment or
popular referendum.

3 The rule of law
The idea of the rule of law is rooted in the history of European political thought
and constitutionalism, although with us it was ¬rst given a clear de¬nition in
Dicey™s Law of the Constitution in 1885. Indeed, Dicey™s argument in this book
was that the law of the constitution contained two fundamental doctrines: the
sovereignty of Parliament and the rule of law. (Dicey recognised, of course, that
there was considerably more to the constitution than law alone, but he focused,
in this book, only on its legal elements.) The sovereignty of Parliament concerns
the relationship of Parliament to the law; the rule of law concerns that of the
government to the law.
Edward McWhinney rightly sees the English version of the concept as a ˜his-
torically received notion™ and says that it is, in essence, ˜a distillation of English
common law legal history from the great constitutional battles of the
seventeenth century onwards™ (Constitution-making: Principles, Process, Practice
(1981), p 10. See further Ja¬e and Henderson, ˜Judicial review and the rule of
law: historical origins™ (1956) 72 LQR 345.) The rule of law is both a legal rule
and a political ideal or principle of governance comprising values that should
be re¬‚ected in the legal system and should be respected by those concerned in
the making, development, interpretation and enforcement of the law. Through
the courts™ acknowledgement of the demands of the rule of law, it has acquired
77 The ideas of the constitution

the status of an ˜overarching principle of constitutional law™ (Lord Steyn,
˜Democracy through law™ [2002] EHRLR 723, 727). This has now been recog-
nised in statute, section 1 of the Constitutional Reform Act 2005 somewhat
cryptically providing that ˜This Act does not adversely a¬ect . . . the existing
constitutional principle of the rule of law™ (see further on the Constitutional
Reform Act, below, pp 117“23).
The ideal of the rule of law has been formulated in many ways, both broad
and narrow, and there is much disagreement as to the values or principles that
it embraces. The argument has often focused on Dicey™s classic exposition of
the rule of law, and in particular on the ¬rst two meanings he gives to this

Dicey, The Law of the Constitution (1885), pp 202“3

[The rule of law] means, in the first place, the absolute supremacy or predominance of
regular law as opposed to the influence of arbitrary power, and excludes the existence
of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the
government. Englishmen are ruled by the law, and by the law alone; a man may with us be
punished for a breach of law, but he can be punished for nothing else.
It means, again, equality before the law, or the equal subjection of all classes to the ordi-
nary law of the land administered by the ordinary law courts; the ˜rule of law™ in this sense
excludes the idea of any exemption of officials or others from the duty of obedience to the
law which governs other citizens or from the jurisdiction of the ordinary tribunals.

In this section we consider, ¬rst, what is probably the most basic sense of the
rule of law: namely, the notion that government must act in accordance with,
and not beyond, its legal powers. As we shall see, even this aspect of the rule of
law has not escaped controversy in the British context. We then consider the
claim of the rule of law that government should not be treated di¬erently in law
from the ways in which ordinary persons are treated. We shall see, again, that in
Britain (as in fact in most other countries) the government is able to bene¬t
from a number of legal immunities and privileges, which distinguish its legal
position from that of others, albeit that important House of Lords case law has
in recent years attempted to limit the range of these immunities. In the third
section we consider something of the problem that executive and administra-
tive discretion poses for the rule of law. In the ¬nal sections we outline a number
of wider conceptions of the rule of law, conceptions which British constitu-
tional law has not yet embraced, at least, not in full.

(a) Government under law
The minimum element in the rule of law is that the government is subject to
the law and may exercise its power only in accordance with law. A government
that claimed to be above the law and to be subject to no legal restraint in
78 British Government and the Constitution

issuing commands to give e¬ect to its view of the public (or its own) inter-
est, would undoubtedly be a government that did not acknowledge the rule
of law. In England it was established long ago in the following case that the use of
public power must be justi¬ed by law and not by the claims of state necessity.

Entick v Carrington (1765) 19 St Tr 1029 (Court of Common Pleas)
The King™s messengers, armed with a warrant of the Secretary of State to arrest
the plainti¬ (claimant), John Entick, alleged to be the author of seditious writ-
ings, and to seize his books and papers, broke into and entered his house and
took away his papers. Entick sued the o¬cers for trespass to his house and
goods, and the defendants sought to justify the legality of the warrant. Unable
to ¬nd speci¬c authority in law, they argued that such warrants had been issued
frequently in the past and executed without challenge, and that the power of
seizure was essential to government.

Lord Camden CJ: . . . This power, so claimed by the secretary of state, is not supported by
one single citation from any law book extant. . . .
If it is law, it will be found in our books. If it is not to be found there, it is not law.
. . . By the laws of England, every invasion of private property, be it ever so minute, is
a trespass. No man can set his foot upon my ground without my licence, but he is liable to
an action, though the damage be nothing. . . . If he admits the fact, he is bound to shew by
way of justification, that some positive law has empowered or excused him. The justification
is submitted to the judges, who are to look into the books; and [see] if such a justification
can be maintained by the text of the statute law, or by the principles of common law. If no
such excuse can be found or produced, the silence of the books is an authority against the
defendant, and the plaintiff must have judgment. . . .
I come now to the practice since the Revolution, which has been strongly urged, with this
emphatical addition, that an usage tolerated from the era of liberty, and continued down-
wards to this time through the best ages of the constitution, must necessarily have a legal
commencement. . . .
With respect to the practice itself, if it goes no higher, every lawyer will tell you, it is much
too modern to be evidence of the common law. . . .
This is the first instance I have met with, where the ancient immemorable law of the land,
in a public matter, was attempted to be proved by the practice of a private office.
The names and rights of public magistrates, their power and forms of proceeding as
they are settled by law, have been long since written, and are to be found in books and
records. . . . [W]hoever conceived a notion, that any part of the public law could be buried
in the obscure practice of a particular person?
To search, seize, and carry away all the papers of the subject upon the first warrant: that
such a right should have existed from the time whereof the memory of man runneth not to
the contrary, and never yet have found a place in any book of law; is incredible. . . .
But still it is insisted, that there has been a general submission, and no action brought to
try the right.
79 The ideas of the constitution

I answer, there has been a submission of guilt and poverty to power and the terror of pun-
ishment. But it would be strange doctrine to assert that all the people of this land are bound
to acknowledge that to be universal law, which a few criminal booksellers have been afraid
to dispute. . . .
It is then said, that it is necessary for the ends of government to lodge such a power with
a state officer; and that it is better to prevent the publication before than to punish the
offender afterwards. . . . [W]ith respect to the argument of state necessity, or a distinction
that has been aimed at between state offences and others, the common law does not under-
stand that kind of reasoning, nor do our books take notice of any such distinctions.

It was held that the warrant was illegal and void, and Entick was awarded
The principle a¬rmed in this great case, that a public o¬cer must show
express legal authority for any interference with the person or property of the
citizen, is still the law. But nowadays there are many statutes which authorise
such interferences and some do so in very general terms. One statute of this sort,
the Taxes Management Act 1970, was said by Lord Scarman in IRC v Rossminster
Ltd [1980] AC 952, 1022, to make ˜a breath-taking inroad upon the individual™s
right of privacy and right of property™. The Act authorises o¬cers of the Board
of Inland Revenue, acting under a search warrant, to enter premises by day or
night, if necessary by force, and seize ˜any things whatsoever™ reasonably believed
to be evidence of an o¬ence involving serious fraud in connection with tax. The
search warrant is issued by a judge who must be satis¬ed that there is reasonable
ground for suspecting that an o¬ence of fraud in relation to tax has been
committed. The warrant in the Rossminster case simply followed the wording of
the statute without specifying what particular o¬ence was suspected, and the
Court of Appeal ([1980] AC 967) held the warrant invalid for this reason. Lord
Denning cited Entick v Carrington among other cases and said (974):

When the officers of the Inland Revenue come armed with a warrant to search a man™s home
or his office, it seems to me that he is entitled to say: ˜Of what offence do you suspect me?
You are claiming to enter my house and to seize my papers.™ And when they look at the
papers and seize them, he should be able to say: ˜Why are you seizing these papers? Of
what offence do you suspect me? What have these to do with your case?™ Unless he knows
the particular offence charged, he cannot take steps to secure himself or his property. So it
seems to me, as a matter of construction of the statute and therefore of the warrant “ in
pursuance of our traditional role to protect the liberty of the individual “ it is our duty to
say that the warrant must particularise the specific offence which is charged as being fraud
on the revenue.

The House of Lords, however, reversed the Court of Appeal™s ruling and held
that there was nothing in the statute to require the particular o¬ence to be stated
in the warrant. Since the provisions of the statute had been complied with, there
was no violation of the principle of Entick v Carrington. (See too Du¬y
80 British Government and the Constitution

and Hunt, ˜Goodbye Entick v Carrington: the Security Service Act 1996™ (1997)
2 EHRLR 11.)
The requirement of the rule of law that express legal authority must be shown
for interferences with individual rights was doubtless formally satis¬ed in this
case. But is it diluted in substance, when the legal power is conferred in very
wide terms which do not have to be particularised before the power is used
against an individual?
Although the courts do in many cases uphold the rights of the citizen against
executive action that is not justi¬ed by law, a contrary tendency in our legal
system allows certain kinds of interference with private interests to be commit-
ted by a public authority without express legal justi¬cation. This is because
there are in the common law relatively few positively constituted civil rights: the
˜rights™ of the citizen have often been no more than the residue of liberty which
is beyond the limits of lawfully exercised public power. (This remains the
position at common law even after the Human Rights Act 1998: see further
chapter 11.) If the citizen™s interest is not supported by a legally acknowledged
right, a public authority may be able to act to the detriment of that interest
without having to show speci¬c legal authority for its action.

Malone v Metropolitan Police Commissioner [1979] Ch 344
(Sir Robert Megarry V-C)
The plainti¬ (claimant) had been charged with handling stolen property; in the
course of the trial, counsel for the Crown admitted that the plaintiªs telephone
line had been ˜tapped™ in order to hear and record his conversations, for the
purpose of criminal investigation. The tapping had been done on the authority
of a warrant issued by the Home Secretary in accordance with usual practice.
The plainti¬ brought proceedings against the Metropolitan Police Com-
missioner for declarations that the tapping was unlawful, inter alia on the
ground that it was authorised neither by statute nor by common law.

Sir Robert Megarry V-C: . . . England, it may be said, is not a country where everything is
forbidden except what is expressly permitted: it is a country where everything is permitted
except what is expressly forbidden.
. . . If the tapping of telephones by the Post Office at the request of the police can be
carried out without any breach of the law, it does not require any statutory or common law
power to justify it: it can lawfully be done simply because there is nothing to make it unlaw-
ful. The question, of course, is whether tapping can be carried out without infringing the law.
. . . [T]here is admittedly no statute which in terms authorises the tapping of telephones,
with or without a warrant. Nevertheless, any conclusion that the tapping of telephones is
therefore illegal would plainly be superficial in the extreme. The reason why a search of
premises which is not authorised by law is illegal is that it involves the tort of trespass to
those premises: and any trespass, whether to land or goods or the person, that is made
81 The ideas of the constitution

without legal authority is prima facie illegal. Telephone tapping by the Post Office, on the
other hand, involves no act of trespass. The subscriber speaks into his telephone, and the
process of tapping appears to be carried out by Post Office officials making recordings, with
Post Office apparatus on Post Office premises, of the electrical impulses on Post Office wires
provided by Post Office electricity. There is no question of there being any trespass on the
plaintiff™s premises for the purpose of attaching anything either to the premises themselves
or to anything on them: all that is done is done within the Post Office™s own domain. As
Lord Camden CJ said in Entick v Carrington, ˜the eye cannot by the laws of England be guilty
of a trespass™; and, I would add, nor can the ear.

Sir Robert Megarry was also of the opinion that where tapping was carried out
under warrant its lawfulness had been recognised by the Post O¬ce Act 1969.
Arguments for the plainti¬ based upon alleged infringements of rights of
privacy and con¬dentiality and breaches of the European Convention on
Human Rights were also unsuccessful.
Mr Malone subsequently complained to the European Commission of
Human Rights that the tapping of his telephone, considered in the context of
United Kingdom law and practice, had violated the European Convention on
Human Rights. The case was referred by the Commission to the European
Court of Human Rights, which ruled that there had been a violation of Article 8
of the Convention (right to respect for private life and correspondence). Since
the law of England failed to provide a clear delimitation of the power of inter-
ception, ˜the minimum degree of legal protection to which citizens are entitled
under the rule of law in a democratic society is lacking™ (Malone v United


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