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government, if the despot is scrupulous about using the forms of law. Despotic
governments, however, are not generally distinguished by a punctilious obser-
vance of the law, even law of their own making and, indeed, even democratic
governments do not always show a fastidious regard for legal requirements.
Broader conceptions of the rule of law demand more than a mere formal
99 The ideas of the constitution

compliance by public authorities with the rules of the legal system. In this light
several commentators have argued that the doctrine should be seen as includ-
ing a number of other values.
In its wider sense the rule of law has been said to require, for example, that
laws should be general, prospective, open, clear and stable. (See especially
Joseph Raz, ˜The rule of law and its virtue™ (1977) 93 LQR 195, who sees these
and other principles of the rule of law as resting on the ˜basic idea that the law
should be capable of providing e¬ective guidance™ and on respect for the dignity
and autonomy of the individual.)
The generality of a legal order would distinguish it from a regime in which
speci¬c commands were issued without regard to reasoned principle “ or in
which, in the words of Lon Fuller, governmental power expressed itself in
˜unpredictable and patternless interventions in human a¬airs™ (The Morality of
Law (2nd edn 1969), pp 157“8). It is impossible to conceive of a legal system of
which this was the characteristic feature, but a government might show a ten-
dency to act in this way in particular branches of administration.
The law should be prospective, and should not, as Willes J observed in
Phillips v Eyre (1870) LR 6 QB 1, 23, ˜change the character of past transactions
carried on upon the faith of the then existing law™. In Lauri v Renad [1892] 3 Ch
402, 421, Lindley LJ held it to be a ˜fundamental rule of English law that no statute
shall be construed so as to have a retrospective operation unless its language is
such as plainly to require such a construction™. Retrospective legislation is
sometimes justi¬ed, as Willes J conceded in Phillips v Eyre (above), to avoid ˜prac-
tical public inconvenience and wrong™, and an element of retrospectivity is an
unavoidable feature of some ¬scal legislation in particular. (See further
Dickinson, ˜Retrospective legislation and the British constitution™ 1974 SLT 25;
Feldman (1992) 108 LQR 212; and L™O¬ce Cheri¬en des Phosphates v Yamashita-
Shinnihon Steamship Co Ltd [1994] 1 AC 486.) Retrospective penal legislation is
especially o¬ensive to the rule of law and is besides contrary to Article 7 of the
European Convention on Human Rights. Our courts will interpret penal statutes
as not having retrospective e¬ect unless they are compelled by unequivocal statu-
tory provision to hold otherwise: see Waddington v Miah [1974] 1 WLR 683. In
Welch v United Kingdom (1995) 20 EHRR 247 it was held by the European Court
of Human Rights that the United Kingdom had breached Article 7 by reason of
the retrospective operation of con¬scation orders made under the Drug
Tra¬cking O¬ences Act 1986. (See also R (Uttley) v Secretary of State for the Home
Department [2003] EWCA Civ 1130, [2003] 4 All ER 891.)
Laws should be open, that is to say, made known by su¬cient publication.
As Lord Diplock remarked in Fothergill v Monarch Airlines Ltd [1981] AC 251,
279, elementary justice ˜demands that the rules by which the citizen is to be
bound should be ascertainable by him (or, more realistically, by a competent
lawyer advising him) by reference to identi¬able sources that are publicly
accessible™. In Salih v Secretary of State for the Home Department [2003] EWHC
2273, Stanley Burnton J declared it to be ˜a fundamental requisite of the rule of
100 British Government and the Constitution

law that the law should be made known™. In this case the Home Secretary had
discretion under statute to provide what was known as ˜hard cases support™
(facilities for accommodation) for failed asylum-seekers. He adopted a policy or
set of criteria that he would apply for the provision of hard case support, but
decided that he would neither publicise his support scheme nor inform failed
asylum-seekers of the possibility of applying for support. Stanley Burnton J held
that it was ˜in general inconsistent with the constitutional imperative that statute
law be made known for the government to withhold information about its policy
relating to the exercise of a power conferred by statute™. The judge concluded that
the Home Secretary™s decision not to inform failed asylum-seekers of his policy
on hard cases was unlawful. See also R (Anufrijeva) v Secretary of State for the
Home Department [2003] UKHL 36, [2004] 1 AC 604, in which Lord Steyn
declared that a constitutional state under the rule of law ˜must accord to individ-
uals the right to know of a decision before their rights can be adversely a¬ected™.
If laws are to be an e¬ective and reliable guide to conduct it is evident that
they should be clear. Expressed as a requirement of certainty, this was said by
Lord Nicholls in R v Secretary of State for the Environment, ex p Spath Holme Ltd
[2001] 2 AC 349, 397, to be ˜one of the fundamental elements of the rule of law™.
Our laws do not always measure up to this. The Law Commission observed in
1994 that ˜laws which so many people have to use, often at great personal
expense, remain unsimple, unmodern, inaccessible and unreformed™: Twenty-
eighth Annual Report (Law Com No 223, 1994), para 1.21. (See also the
admonition to Parliament and ministers in Merkur Island Shipping Corpn
v Laughton, below, p 444.) The European Court of Human Rights declared in
Sunday Times v United Kingdom (1979) 2 EHRR 245, 271, that ˜a norm cannot
be regarded as a “law” unless it is formulated with su¬cient precision to enable
the citizen to regulate his conduct™ (see also R (Gillan) v Metropolitan Police
Commissioner [2006] UKHL 12, [32]“[34]).
Laws should be stable because frequent changes in them make it di¬cult to
know the law or to plan for the future. (See Raz, ˜The rule of law and its virtue™
(1977) 93 LQR 195, 199.)
The scope of the rule of law is debatable and for some it will include
additional values, such as the recognition of certain fundamental rights of the
individual against the state, whereas others would ¬nd the validation of such
rights elsewhere, perhaps as necessary elements of a democratic polity. Among
these others is Je¬rey Jowell, for whom ˜The scope of the Rule of Law is broad,
but not broad enough to serve as a principle upholding a number of other
requirements of a democracy™ (J Jowell and D Oliver (eds), The Changing
Constitution (5th edn 2004), p 23). Compare TRS Allan™s conception of the rule
of law as embracing a recognition of the ˜inherent legal value™ of the autonomy
of the citizen, and the ˜principal civil liberties which assist in preserving the
citizen™s autonomy in the face of governmental authority™: ˜The rule of law as
the rule of reason: consent and constitutionalism™ (1999) 115 LQR 221 (see also
TRS Allan, Constitutional Justice (2001), ch 4).
101 The ideas of the constitution

The rule of law as we have so far considered it may appear to be neutral with
regard to the distribution of power in society and might not be an obstacle to a
legal order designed to maintain social and economic inequality and to serve
the interests of a governing elite. (Cf EP Thompson, Whigs and Hunters (1975),
pp 258“69.) RM Unger (Law in Modern Society (1977)) observes that the rule
of law has failed to solve the problem of power: it is, he says (p 239):

the liberal state™s most emphatic response to the problems of power and freedom. But . . .
whatever its efficacy in preventing immediate government oppression of the individual,
the strategy of legalism fails to deal with these issues in the basic relationships of work
and everyday life.

(See also ibid, pp 179“81.)
The rule of law has sometimes been invoked in defence of private interests
against the actions of ˜interventionist™ government directed to social reform and
public welfare. W Friedmann (The State and the Rule of Law in a Mixed Economy
(1971), p 95) responds as follows:

The proposition that the rule of law in modern democracy is incompatible with any kind of
economic planning by the state or . . . that the planned state ˜commands people which road
to take™, whereas the rule of law only provides ˜signposts™, [FA von Hayek, The Road to
Serfdom (1944), p 54] is of course incompatible with the reality of any contemporary democ-
racy. It would be a useless exercise for us to attempt to define the rule of law in a way that
bears no relation to the minimum functions of social welfare, urban planning, regulatory con-
trols, entrepreneurship and other essential functions of the state in a mixed economy.

The achievement of great social ends, such as the removal of economic, racial
and sexual injustice, and the provision of welfare services, is impossible without
state activity and the assumption of the necessary powers. It would be a dis-
torted conception of the rule of law that denied the validity of these ends or
frustrated their accomplishment. If in recent times a new orthodoxy of the
non-interventionist state, of deregulation and privatisation, has been in the
ascendancy, it cannot claim the speci¬c endorsement of the rule of law.
Among those who have argued for an enlarged conception of the rule of law,
going beyond an exclusive insistence on requirements of legality and procedural
fairness, the International Commission of Jurists have taken the most radical
position. In a Congress held in Delhi in 1959 they declared:

that the Rule of Law is a dynamic concept for the expansion and fulfilment of which jurists
are primarily responsible and which should be employed not only to safeguard and advance
the civil and political rights of the individual in a free society, but also to establish social,
economic, educational and cultural conditions under which his legitimate aspirations and
dignity may be realized.
102 British Government and the Constitution

The impulse to rede¬nitions of this kind comes from an awareness that
a neutral conception of the rule of law seems to distance lawyers and the ideals
of law from the most compelling issues of our time “ of poverty, social depri-
vation and the denial of political rights and elementary justice by authoritarian
governments. The lawyers at Delhi were conscious that law is, too often, mainly
of service to limited and powerful interests in unequal societies.
Others still insist on a stricter de¬nition of the rule of law, saying with Raz
((1977) 93 LQR 195, 195“6): ˜If the rule of law is the rule of the good law then
to explain its nature is to propound a complete social philosophy. But if so the
term lacks any useful function. We have no need to be converted to the rule of
law just in order to discover that to believe in it is to believe that good should
triumph.™ Can the wider objectives declared in Delhi be accommodated within
a workable concept of the rule of law? (See further Craig, ˜Formal and substan-
tive conceptions of the rule of law™ [1997] PL 467.)

(e) The rule of law and parliamentary sovereignty
For Dicey, as we have seen, the fundamental principles of the British constitu-
tion were parliamentary sovereignty and the rule of law. But Dicey, it has been
objected (Jan-Erik Lane, Constitutions and Political Theory (1996), p 44), ˜did
not fully understand that his model is contradictory™, for:

If Parliament has sovereignty, then how could it be bound by the rule of law . . .? If the rule
of law is the foundation of the State, then how can Parliament claim a power not bound by
any legal restrictions?

Dicey was not wholly oblivious of the contradiction but believed that the rule
of law was not at risk from a Parliament which was subject, in his view, to
both internal and external limits to the exercise of its sovereignty. Parliament
was restrained internally, he thought, by its representative character, which
identi¬ed it with the interests and wishes of the electorate, and externally by the
force of a public opinion which would oppose serious resistance to ˜reactionary
Today there is less con¬dence in the e¬ectiveness of such constraints to
reconcile parliamentary sovereignty with the rule of law. Can the dilemma be
resolved only by admitting legal limits to parliamentary sovereignty, or has the
rule of law to be quali¬ed by democratic principle? (See for example the argu-
ments in 2003“04 concerning the proposed ouster clause in the Asylum and
Immigration (Treatment of Claimants) Bill, considered above, p 67). See
further TRS Allan, Constitutional Justice (2001), ch 7 and Goldsworthy,
˜Legislative sovereignty and the rule of law™ in T Campbell, K Ewing and
A Tomkins (eds), Sceptical Essays on Human Rights (2001).
See generally on the rule of law TRS Allan, Law, Liberty, and Justice, ch 2;
Jowell, ˜The rule of law today™ in J Jowell and D Oliver, The Changing
Constitution (5th edn 2004); D Dyzenhaus (ed), Recrafting the Rule of Law: The
103 The ideas of the constitution

Limits of Legal Order (1999); TRS Allan, Constitutional Justice (2001); Craig,
˜Constitutional foundations, the rule of law and supremacy™ [2003] PL 92;
Ekins, ˜Judicial supremacy and the rule of law™ (2003) 119 LQR 127. Ian Harden
and Norman Lewis, The Noble Lie (1986), present arguments for a revised and
reconstituted rule of law associated with institutional reforms directed to more
open government, public participation in decision-making and an improved
machinery of accountability.

4 Separation of powers
A doctrine of the separation of powers was formulated by English writers and
controversialists of the mid-seventeenth century who argued for the separa-
tion of the legislative and executive (then including judicial) functions of
government, seeing in this a means to restrain the abuse of governmental
power. The theory of the separation of powers was subsequently developed by
John Locke in his Second Treatise of Civil Government (1690) and, more
systematically, in France, by Montesquieu in The Spirit of the Laws (1748).
Montesquieu, in the context of his description of an idealised English con-
stitution, distinguished the legislative, executive and judicial functions of
government, which he maintained should be exercised by di¬erent persons,
and insisted on the independence of the judiciary. (Montesquieu also held that
the judiciary should not be identi¬ed with any one estate or class of persons
in the state.) ˜All would be lost™, he wrote (The Spirit of the Laws, Book XI, ch
6), ˜if the same man or the same ruling body, whether of nobles or of the
people, were to exercise these three powers, that of law-making, that of
executing the public resolutions, and that of judging crimes and civil causes™.
He held also that the legislature and the executive should have powers to
enable each to check or limit the other.
Montesquieu™s work ensured the lasting in¬‚uence of the theory of the
separation of powers. In England, however, this theory was opposed in the
eighteenth century by the doctrine of the mixed or balanced constitution, in
which monarchical, aristocratic and democratic elements were joined and held
in equilibrium, rather than strictly separated. Accordingly, the theory of the
separation of powers was not to prevail as an explanation of English constitu-
tional arrangements; nor did it provide a focus for constitutional reform. It was
in America (and in France) that the theory was to be embraced by political
leaders and makers of constitutions, the US constitution of 1789, for example,
being based on a conception of the separation of powers quali¬ed by a machin-
ery of checks and balances (for a recent reassessment, see Claus, ˜Montesquieu™s
mistakes and the true meaning of separation™ (2005) 25 OJLS 419).
The system of parliamentary government that evolved in the United
Kingdom in the nineteenth century under the impetus of the Reform Act of
1832 was evidently not based on a theory of the separation of powers. The
modern constitution is perhaps even less conformable to that theory as
traditionally understood, for nowadays ˜rules are made by civil servants and by
104 British Government and the Constitution

judges as well as by legislatures; rules are applied by the courts as well as by “the
executive”; and judgements are made by civil servants and ministers as well as
by judges™ (MJC Vile, Constitutionalism and the Separation of Powers (1967),
p 317). While we may concede that the British constitution is not based on the
separation of powers, however, this does not mean to say that the separation of
powers is of no relevance to the British constitution. Consider, for example, the
reliance placed upon it by the Donoughmore Committee, inquiring into
delegated legislation and administrative adjudication in the 1930s.

Report of the Committee on Ministers™ Powers (Donoughmore
Committee), Cmd 4060/1932, pp 4, 5

In the British Constitution there is no such thing as the absolute separation of legislative,
executive, and judicial powers; in practice it is inevitable that they should overlap. In such
constitutions as those of France and the United States of America, attempts to keep them
rigidly apart have been made, but have proved unsuccessful. The distinction is none the less
real, and for our purposes important. One of the main problems of a modern democratic state
is how to preserve the distinction, whilst avoiding too rigid an insistence on it, in the wide
borderland where it is convenient to entrust minor legislative and judicial functions to exec-
utive authorities.
It is customary today for parliament to delegate minor legislative powers to subordinate
authorities and bodies. Ministers of the Crown are the chief repositories of such powers; but
they are conferred also, in differing degrees, upon Local Authorities, statutory corporations
and companies, Universities, and representative bodies of solicitors, doctors and other


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( 155 .)