Law in Troubled Times

R O U T L E D G E . T A Y L O R & F R A N C I S Law in Troubled Times A Routledge Chapter Sampler www.routledge.com/law Contents 1. The Rule of Law From: Public Law, by Michael Doherty 2. The UK Supreme Court and Parliament From : New Challenges to Constitutional Adjudication in Europe, by John McEldowney , edited by Zoltán Szente and Fruzsina Gárdos-Orosz 3. Implications of the UK’s legal response: striking the right balance between individual privacy and collective security in the digital age From: Digital Privacy, Terrorism and Law Enforcement, by Simon Hale-Ross 4. Dismantling rule-of-law guarantees From: Democratic Decline in Hungary, by András L. Pap 5. The rule of law and the religious character of the Constitution and the wider legal framework From: Religion, Law and the Constitution, by Javier García Oliva and Helen Hall 20% Discount Available Enjoy a 20% discount across our entire range of Law books. Simply add the discount code JKU04 at the checkout. Please note: Valid until 1st November 2018. This discount code cannot be combined with any other discount or offer and is only valid on print titles purchased directly from www.routledge.com. www.routledge.com/law Copyright Taylor & Francis Group. Not for distribution. CHAPTER 10 THE RULE OF LAW Here are some fundamental questions: why should people obey the law? Does the Government always need legal authority for its actions? Should public offi cials be bound by the same rules and subject to the same courts as ordinary citizens? Can oppressive dictatorships ever be said to be lawful? These are addressed by the constitutional principle of the rule of law. It is not in itself a legal rule but it organises a number of legal principles into a broad and powerful infl uence on the constitution. It outlines something of a paradox, that whilst the law is a powerful tool in the hands of the state, the need for lawful authority can be a powerful restraint on governmental abuses of citizens. AS YOU READ The meaning of the rule of law has been the subject of considerable debate. It is often described, even by some judges, as a particularly slippery and elusive concept. This chapter hopes to persuade you that this is not necessarily so. Each writer has their own particular take on the rule of law but, without unduly simplifying the approaches, we can place them into three categories. First, the legality principle states that Governments must act in accordance with the law. Secondly, the formal school adds the notion that laws should have certain characteristics (e.g. clarity) regardless of their content. Third, the substantive school argues that the rule of law additionally requires that the content of laws is consistent with human rights and human dignity. In this chapter, you will need to understand these different approaches and be able to illustrate them and compare their strengths. You should not lose sight, however, of the important practical role that the rule of law plays in UK Public Law. Before you start you should view this video, with endorsement of the rule of law from the likes of Bill Gates and Archbishop Desmond Tutu: http://worldjusticeproject.org/endorsements 3 Copyright Taylor & Francis Group. Not for distribution. 290 THE RULE OF LAW Definition and scope of RoL The legality principle A V Dicey J Raz A substantive RoL? Value of the RoL in the UK Figure 10.1 Structure of Chapter 10 10.1 INTRODUCTION EXPLAINING THE LAW– WHAT DANGERS MAKE THE RULE OF LAW SO IMPORTANT? Imagine that Elizabeth makes some critical remarks about the rulers of a country. She is abducted by state agents who refuse to tell Elizabeth’s relatives where she is being held or what law she has broken. When the relatives go to court, their application fails because the Minister for Justice has informed the judge (without telling Elizabeth’s relatives) that a secret law was passed that morning by the President. That law cannot be shown to the court but the Minister tells the judge that it covers Elizabeth’s past behaviour. The police later confi scate all of Elizabeth’s property. Her relatives cannot fi nd any law that authorises this. Their fi rst application for a court order is rejected because the Minister simply instructs the court to refuse them access and pays the judges a bonus when they act on his orders. A different court agrees to hear the claim and issues an order for the return of the property. The Minister commands the police to ignore the court order. This is a hypothetical scenario but it is also an amalgam of real life historical events. It represents aspects of England at the time of Magna Carta 1215 and the Habeas Corpus Act 1679 and of Britain at the time of the Entick v Carrington case in 1765. It is a depressingly familiar summary of the situation in dictatorships and totalitarian regimes from around the world through recent centuries and right up to the present day. Some of the issues from this scenario, such as refusing a prisoner access to a court, have been amongst the most heated topics in recent decades in the Western liberal democracies of the UK and the US, particularly in relation to responses to terrorism and the operation of Guantanamo Bay. 4 Copyright Taylor & Francis Group. Not for distribution. THE RULE OF LAW 291 A bit of empathy never hurts in trying to understand the importance of legal protections, so go ahead and imagine that Elizabeth is one of your relatives. How are you likely to feel about your obligation to obey the laws of this state? What conclusions will you draw about the role of law within this country and the ability of law to control the Government? In a state based on the rule of law, these things would simply not be allowed to happen. Public offi cials acting without lawful authority, secret and retrospective laws, governments controlling judges or instructing the police to ignore inconvenient court orders are all direct breaches of the principle of the rule of law. As we go through the contested defi nitions of the rule of law and the subtle implications of one school of thought over another, you should keep this scenario in mind. Notice, in particular, that the rule of law has this core content in all its different guises and that it tries to prevent the sort of evils that some rulers are tempted into (or are hell-bent on doing). EXPLAINING THE LAW – ZIMBABWE LAND REFORM Southern Rhodesia was an apartheid state in southern Africa where black people were excluded from political and economic life by the white minority. A guerrilla war brought an end to the apartheid regime and the establishment of a new republic, Zimbabwe, in 1980. Zimbabwe is a signatory to numerous international agreements, including the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights. These require the equal protection of the law and the independence of the judiciary. The issue of land reform was a vexed one, and 20 years after the foundation of Zimbabwe, many large farms were still owned by white farmers. The ruling ZANU- PF party of the President, Robert Mugabe, sought to speed up the process of land redistribution. In the process they incited ‘war veterans’ to invade white-owned farms and evict the owners. These invasions were not legally authorised property transfers, and serious violence occurred, including murder. A Human Rights Watch study of 2002 reported allegations that the police and army were involved in assisting the land invasions and in the beating and torture of farm workers. The reluctance of the police to protect victims of violence was well reported.1 The farmers obtained court orders requiring the trespassers to leave. Ordinarily, the police would enforce such orders, but President Mugabe’s Government instructed the police not to do so. This was part of the process of a country that had previously held a commitment to the rule of law now sliding into authoritarianism. 1 Human Rights Watch, ‘Fast Track Land reform in Zimbabwe’, http://www.hrw.org/reports/2002/zimbabwe/ ZimLand0302.pdf (last accessed 05/11/17). 5 Copyright Taylor & Francis Group. Not for distribution. 292 THE RULE OF LAW 10.2 DEFINITION AND SCOPE OF THE RULE OF LAW There has been a good deal of worrying about the defi nition and scope of the term ‘rule of law’. Barnett argues that ‘Of all the constitutional concepts the rule of law is also the most subjective and value laden’. 2 Some commentators go further, and Shklar’s declaration that the term is ‘meaningless thanks to ideological abuse and general overuse’ is often quoted. 3 Yet to describe the principle as ‘meaningless’ is overstepping the mark. There is actually a good degree of consistency between the differing accounts of what the ‘rule of law’ means. You will see that the rule of law has a core meaning – the legality principle. Whilst this is limited in scope, it is hard-edged and has a defi ned legal content and mechanisms for securing legality. There is a penumbra of wider meaning that is subject to lively debate. It is generally accepted that this includes notions of natural justice, access to the courts and clarity and prospectivity in legal rules. Writers have largely agreed on the core content of the rule of law and differ mainly on how wide the principle is. Some prefer a narrower formal approach, others agree that the rule of law requires these formal characteristics but also that there is a broader need for the substance of the legal rules to have a minimum content of fairness and equity.

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