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Legislative Supremacy and the Rule of Law: Democracy and Constitutionalism

Published online by Cambridge University Press:  16 January 2009

T. R. S. Allan
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“… for it is impossible that one should be Judge and party, for the Judge is to determine between party and party, or between the Government and the party; and an Act of Parliament can do no wrong, though it may do several things that look pretty odd;”

City of London v. Wood, 12 Mod. 669, 687, per Holt C.J.

“And forasmuch as the legislature always have justice and truth before their eyes, and their false recitals (if there are any) are made upon false information, from thence it follows that they do not intend any one to be concluded by such recital grounded upon falsehood, for he that says to the contrary affirms that their interest is to oppress men wrongfully, which is indecent to be said of them, and he who insists that some shall be concluded by such falsehood, impugns the intent of the makers of the Act, and in that the Act itself, for the Act is nothing else but the intention of the makers of it.”

The Earl of Leicester v. Heydon (1570) 1 Plowden 384, 398.

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Articles
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The Cambridge Law Journal , Volume 44 , Issue 1 , March 1985 , pp. 111 - 143
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Copyright © Cambridge Law Journal and Contributors 1985

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References

1 See especially R. M. Dworkin, Taking Rights Seriously (1977), esp. Chap. 5; J. H. Ely, Democracy and Distrust: A Theory of Judicial Review (1980).

2 Sir Leslie Scarman, English Law—The New Dimension, Hamlyn Lectures, 26th series, p. 15.

3 Introduction to the Study of the Law of the Constitution, 10th edition, ed. E. C. S. Wade (hereinafter cited as Dicey), p. 413.

4 See, e.g. Jennings, The Law and the Constitution (5th ed., 1958), pp. 42–62; de Smith, Constitutional and Administrative Law (4th ed., 1981, by H. Street & R. Brazier), p. 30. Compare H. W. R. Wade, Administrative Law (5th ed., 1982), pp. 22–24.

5 See e.g. Aristotle, Politics HI, p. 16 (transl. Jowett, ed. Davis): “The rule of law is preferable to that of any individual.” The idea finds its clearest and simplest expression in medieval political theory. A. P. d'Entreves provides a helpful account in The Notion of the Stale (1967), Part 2.

6 Hayek, F. A., The Constitution of Liberty (1960), p. 153Google Scholar. See also Lucas, J. R., The Principles of Politics (1966), p. 113Google Scholar.

7 Hayek argues that the political ideal should not be sacrificed to secure social and economic advantages: see especially The Road to Serfdom (1944), Chap. VI.

8 Dicey, p. 193.

9 Entick v. Carrington (1765), 19 State Trials 1030 (Lord Camden C.J.).

10 Dicey, p. 202.

11 See especially Hayek, The Road to Serfdom, p. 61.

12 Joseph, Raz, The Authority of Law (1979), p. 211Google Scholar. I shall, however, argue for a conception of the rule of law significantly wider than the formal one adopted by Raz. It constitutes, in that sense, a limited conception of the good law.

13 Ibid., p. 213.

14 Dicey, pp. 34–35.

15 Ibid., pp. 247–252.

16 Ibid., pp. 72–76.

17 Note 9, supra, p. 1066.

18 The common law cannot, however, give a remedy against governmental invasion of liberties which would not, if the result of private action, constitute a crime or civil wrong: see Malone v. Commr. of Police of lhe Metropolis (No. 2) [1979] Chap. 344. This is. no doubt, an unfortunate but inevitable by-product of the common law conception of residual freedoms.

19 Freedom under the Law, Hamlyn Lectures, 1st series, p. 4. This principle is not always accorded in practice the respect which constitutional theory would demand: sec, e.g. I.R.C. v. Rossminster Ltd. (1980] A.C. 952, note 26, infra.

20 Dicey, p. 195.

21 In stating that the rule of law excluded the existence of wide discretionary authority on the part of the government, Dicey was guilty of confusing the juristic principle with the political ideal: (see Dicey, p. 202).

22 John Locke, Two Treatises of Government, Book II, para. 137.

23 [1975] A.C. 591, 613G.

24 Black-Clawson Ltd. v. Papierwerke A. G., supra, p. 638D-E (Lord Diplock). See also p. 645G (Lord Simon) and Maunsell v. Olins [1975] A.C. 373, 391E-F (Lord Simon): statutory language is presumed to be “used at the semantic level appropriate to the subject-matter and to the audience addressed …”

25 Ibid., at p. 614A (Lord Reid). Any investigation of the legislative background of an enactment, even for the purpose of understanding what defects the existing law was thought to contain, may increase the risk of the court's interpretation diverging from that of the citizen, who will not normally have undertaken such an investigation. But no statute can be sensibly interpreted in abstraction from its general purpose. The solution is a compromise whereby the extent or degree of the court's commitment to the legislative objectives is qualified by respect for the rule of law.

26 In I.R.C. v. Rossminster Ltd. [1980] A.C. 952, 997H, Lord Wilberforce acknowledged the duty of the courts “to supervise, I would say critically, even jealously, the legality of any purported exercise” of the powers of search and seizure under the Taxes Management Act 1970, S.20C. It is doubtful, however, whether the decision of the House of Lords majority, in its attempt to ensure the effectiveness of legislation designed to assist in the discovery of tax fraud, properly reflected the strength and importance of the rule of law. Compare the decision of the Court of Appeal, quashing the search warrants for want of particularity and granting a remedy for unlawful seizure of documents: [1980] A.C, 968, subnom. R. v. I.R.C, ex p. Rossminster Ltd.

27 The courts will not permit statutory powers to be used tor an ulterior purpose: see, e.g. R. v. Governor of Brixton Prison, ex p. Soblen [1963] 2 Q.B. 243. Nor may their purpose be subverted by making their exercise dependent on extraneous or irrelevant considerations: see generally Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223.

28 It is appropriate to recall the famous passage by Lord Atkin, dissenting, in Liversidge v. Anderson [1942] A.C. 206, 244: “It has always been one of the pillars of freedom... that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive; alert to see that any coercive action is justified in law.” It should be noted, however, that not all legal challenges to the actions of public authorities will involve coercion of, or specific injustice to, a particular individual. The analysis offered here must therefore be applied with caution: see n. 71, p. 131.

29 e.g. R. v. Reah [1968] 1 W.L.R. 1508.

30 Dyke v. Elliott, The “Gauntlet” (1872) L.R. 4 P.C. 184, 191.

31 See here Rawls, , A Theory of Justice (1972), p. 239Google Scholar: “If the precept of no crime without a law is violated, say by statutes being vague and imprecise, what we are at liberty to do is likewise vague and imprecise. The boundaries of our liberty are uncertain.”

32 Sweet v. Parsley [1970] A.C. 132, 152B (Lord Morris).

33 Ibid., p. 148G-H (Lord Reid).

34 R. v. Tolson (1889) 23 Q.B.D. 168, 173–175.

35 Ibid., p. 182.

36 Sweet v. Parsley, supra, p. 163C-D (Lord Diplock). It is sometimes reasonable to impose strict liability on particular activities which create special hazards in order that those choosing to engage in such activities may bear the social costs. But even here there must normally be something which the defendant can do, if only indirectly, to ensure that the prohibited act does not occur: Ibid., p. 163D—G.

37 (1850) 5 Exch. 378.

38 Ibid., p. 381.

39 Phillips v. Eyre (1870) L.R. 6 Q.B. 1, 23 (Willes J.).

40 Central Control Board (Liquor Traffic) v. Cannon Brewery Co. Ltd. (1919) A.C. 744, 752 (Lord Atkinson).

41 Attorney-General for Canada v. Hallett and Carey Ltd. [1952] A.C. 472, 450 (Lord Radcliffe).

42 Ibid.

43 R. v. Tolson (1889) 23 Q.B.D. 168, 175 (Wills J.).

44 See Dicey, pp. 62–63.

45 Wills v. Bowley [1983] A.C. 57, 78F-G (Lord Lowry). See also National Assistance Board v. Wilkinson [1952] 2 Q.B. 648, 661 (Devlin J.).

46 Lon Fuller provides a valuable account of the co-operative nature of statutory interpretation in Anatomy of the Law (1968), pp. 59 et seq. The meaning of the statutory words should not, however, be identified with the legislative purpose: see Gerald C. MacCallum, Jr., 75 Yale L.J. 754 (1966), reprinted in Essays in Legal Philosophy, ed. Robert Summers.

47 River Wear Commissioners v. Adamson (1877) 2 App.Cas.743, 763 (Lord Blackburn).

48 It follows that Denning L.J.'s suggestion in Magor and St. Mellons R.D.C. v. Newport Corporation (1950) 2 All E.R. 1226, 1236A, that “we sit here to find out the intention of Parliament and of Ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment” must be treated with considerable caution. Cf. Lord Simonds in the same case on appeal [1951] 2 All E.R. 839, 841.

49 Suisse Atlantique case, [1967] 1 A.C. 361, 432 (Lord Wilberforce).

50 See Oliver Wendell Holmes, “The Theory of Legal Interpretation,” (1899) 12 Harv. L.R. 417. See also Black-Clawson Ltd. v. Papierwerke A.G. [1975] A.C. 591, 645: “The sovereignty of Parliament runs in tandem with the rule of objective law.” (Lord Simon).

51 Black-Clawson Ltd. v. Papierwerke A.G., supra, p. 638F (Lord Diplock). See Dicey, p. 407.

52 Ibid., pp. 629F-630A.

53 According to J. R. Lucas, the rule of law means that coercive authorities are not entitled to make any decision they please: “Their decisions are open to rational assessment and criticism, by subjects as well as by themselves, upon the basis of human rationality and shared values that are the prerequisites of any community's existing.” Op. tit., note 6, supra, p. 107.

54 “What is incontestible is that the court is a mediating influence between the executive and the legislative on the one hand and the citizen on the other. “ Stock v. Frank Jones (Tipton) Ltd. (1978) 1 All E.R. 948,953e-f (Lord Simon). See also Fothergill v. Monarch Airlines Ltd. [1981] A.C. 251, 279G (Lord Diplock).

55 Duport Steels v. Sirs [1980] 1 All E.R. 529, 541j (Lord Diplock). See also Stock v. Frank Jones, supra, p. 953j (Lord Simon).

56 Ibid., p. 541g-h. For the operation of the separation of powers principle in the construction of the written constitutions of former United Kingdom colonies, see Hinds v. The Queen [1976] 1 All E.R. 353; Liyanage v. R. [1967] 1 A.C. 259.

57 Strictly speaking, it is more accurate to define the requirement here as a separation of functions. A clear differentiation of law-making and administrative functions is necessary in order to subordinate the executive to the law: see Frederic S. Burin, “The Theory of the Rule of Law and the Structure of the Constitutional State” (1966) 15 Am.U.L.Rev. 313 at 324–326.

58 “It is a principle not by any means to be whittled down that the subject's recourse to Her Majesty's courts for the determination of his rights is not to be excluded except by clear words. “ Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government [1960] A.C. 260, 286 (Viscount Simonds). But compare the decision in R. v. BracknellJJ., ex p. Griffiths [1976] A.C. 314.

59 [1969] 2 A.C. 147.

60 Foreign Compensation Act 1950, s.4(4).

61 See H. W. R. Wade, (1969) 85 L.O.R. 198.

62 Lord Morris and Lord Pearson.

63 [1969] 2 A.C. 147, 208C.

64 Ibid., p. 207E-F. Compare H. W. R. Wade, Administrative Law, pp. 605–606. Wade considers that the decision in Anisminic is strictly in conflict with the intention of Parliament and with what he conceives to be the “constitutional subservience” of the judiciary (Ibid., p. 29). If, however, the rule of law constitutes a legal principle, it governs the meaning to be attached to legislative enactment. It is in that sense that the court seeks the “intention of Parliament.” See also Wade, H. W. R., Constitutional Fundamentals, pp. 77–78Google Scholar.

65 [1978] A.C. 171.

66 See especially Science Research Council v. Nossé [1980] A.C. 1028 (speech of Lord Scarman); Burmah Oil Co. Ltd. v. Bank of England [1980] A.C. 1090; Williams v. Home Office [1981] 1 All E.R. 1151.

67 The exception is when reliance is placed on subsequent authorisation by means of an Act of Indemnity. Dicey observed that “such enactments being as it were the legislation of illegality are the highest exertion and crowning proof of sovereign power.” (Dicey, p. 50).

68 John Locke, op. cit. para. 221: “For the legislative acts against the trust reposed in them when they endeavour to invade the property of the subject, and to make themselves, or any part of the community, masters or arbitrary disposers of the lives, liberties, or fortunes of the people.”

69 Dicey, p. 75.

70 R. v. Northumberland Compensation Appeal Tribunal, ex p. Shaw (1952] 1 K.B. 338.

71 It is important to emphasise that the rule of law will rarely dictate immediate and obvious answers to particular cases of judicial review of administrative action. Moreover, many issues arising in administrative law will not naturally present themselves as conflicts between citizen and state, and cannot be formulated in that way without distortion. For example, cases will sometimes involve issues of jurisdiction between two or more public authorities. For a discussion of the danger of distorting issues presenting conflicts of public policy, see Patrick McAuslan, (1983) 46 M.L.R. 1.

72 See especially H. W. Arthurs, “Rethinking Administrative Law: A Slightly Dicey Business” (1979) 17 Osg.H.L.J. 1.

73 Ibid., p. 22.

74 Arthurs recognises the legitimacy of the courts' function of “protecting transcendent constitutional values” (Ibid., p. 44). It is however, doubtful whether this view is ultimately consistent with his argument that “ordinary law... enjoys no preferred constitutional position.” No doubt the question of the proper limits of judicial review is, in the last resort, one of degree: the danger of “functionalism” is that it exaggerates the importance of judicial restraint and, to that extent, undermines the role of the courts in curbing the abuse of discretion. The paradoxical nature of Dicey's analysis, highlighted by Arthurs' discussion, may be explained by his presentation of the rule of law as simply a constitutional characteristic which (in that form) stood in apparent opposition to the sovereignty of Parliament.

75 (1609) 8 Co.Rep. 107a, 118a; 77 E.R. 638, 652: “....nd it appears in our books, that in many cases the common law will controul Acts of Parliament, and sometimes adjudge them to be utterly void: For when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void.”

76 Citing Thomas Tregor's case, 8 E.3. 30 a.b. See, generally. S. E. Thome (1938) 54 L.Q.R. 543. A modern example of construction which approaches Cokes robust style is provided by the decision in Re Sigsworth [1935] Chap. 89, where it was held that the provisions of the Administration of Estates Act 1925 could not be applied to enable a murderer to benefit from his victim's estate.

77 [1964] AC. 40.

78 e.g. Pearlberg v. Varty [1972] 2 All E.R. 6.

79 Wiseman v. Borneman [1971] A.C. 297, 308 (Lord Reid).

80 Dicey argued that the rights to freedom of discussion and of public meeting were the consequence of the general principle that no one could be punished except for a distinct breach of the law: Dicey, esp. pp. 247–249, 271, 283.

81 Again, I follow here Lon Fuller, Anatomy of the Law, p. 57 et seq.

82 Note, for example, the refusal of the House of Lords in Brutus v. Cozens [1973] A.C. 854, to endorse the wide meaning of “insulting” in the Public Order Act 1936, s.5 which had been adopted by the Divisional Court. See especially Lord Reid at p. 862D-E: “Parliament had to solve the difficult question of how far freedom of speech or behaviour must be limited in the general public interest. It would have been going much too far to prohibit all speech or conduct likely to occasion a breach of the peace because determined opponents may not shrink from organising or at least threatening a breach of the peace in order to silence a speaker whose views they detest.”

83 For a powerful statement of the priority of the basic liberties, see J. Rawls, A Theory of Justice pp. 27–28: “Each member of society is thought to have an inviolability founded on justice... which even the welfare of every one else canot override. Justice denies that the loss of freedom for some is made right by a greater good shared by others... Therefore in a just society the basic liberties are taken for granted and the rights secured by justice are not subject to political bargaining or to the calculus of social interests.”

84 Waddington v. Miah [1974] 1 W.L.R. 683, 694 (Lord Reid).

85 Note H. W. R. Wade's comment on Anisminic (1969) 85 L.Q.R. 198, 200: “But the judges... have succeeded in preventing Parliament from violating constitutional fundamentals. In effect they have established a kind of entrenched provision which the legislature, whatever it says, is compelled to respect.”

86 Supra.

87 Lord Denning has also stated that the courts “should take [the Convention] into account whenever interpreting a statute which affects the rights and liberties of the individual. It is to be assumed that the Crown, in taking its part in legislation, would do nothing which was in conflict with treaties.” R. v. Secretary of Stale for the Home Department, ex p. Bhajan Singh [1976] Q.B. 198, 207D.

88 [19761 Q.B. 606.

89 Immigration Act 1971, s.1(1).

90 Supra, p. 626F-G. Roskill L.J.'s criticism of these views in R. v. Chief Immigration Officer, Heathrow Airport, ex p. Salamat Bibi [1976J 3 All E.R. 843, 848–849, seems to consist primarily in his objection to the idea that Immigration Officers, in administering the law, should be obliged to consider the European Convention. It is not to be expected that immigration officers should do more than apply the statutory rules. But in deciding a dispute concerning the effect of those rules, the court should surely construe them in accordance with the demands of the Convention.

91 Connally v. General Construction Co., 269 U.S. 385, 391 (1925).

92 “Where a statute's literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, the doctrine demands a greater degree of specificity than in other contexts.” Smith v. Goguen, 415 U.S. 566, 573 (1974).

93 Garner v. Louisiana, 368 U.S. 157, 203 (1961). See also Canlwell v. Connecticut, 310 U.S. 296, 307 (1940).

94 See, e.g. Attorney-General v. Times Newspapers Ltd. [1974] A.C. 273, 294E (Lord Reid), 302C (Lord Morris), 315F-G (Lord Simon) 322F (Lord Cross); Attorney-General v. B.B.C. [1980] 3 All E.R. 161, 169b (Lord Salmon), 176d (Lord Fraser), 177g (Lord Scarman).

95 The concept of due process has been developed as a powerful means of securing the protection of those liberties which are held to be “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Snyder v. Massachusetts, 291, U.S. 97, 105 (1933). See also Palko v. Connecticut, 302 U.S. 319 (1937).

96 For example, the Bill of Rights sponsored by Lord Wade in the House of Lords, which required subsequent legislation to be construed subject to the European Convention on Human Rights unless such legislation provided otherwise or did not admit of a construction compatible with the Convention.

97 See F. A. Hayek, The Constitution of Liberty, Chap. 15. See also R. M. Unger, Knowledge and Politics (1975), Chap. 2.

98 The Morality of Consent (1975), p. 129. Note too Lon Fuller's view that “the very same considerations that require an attitude of neutrality with regard to the external aims of the law demand a commitment by the judge to the law's internal morality. It would, for example, be an abdication of the responsibilities of his office if the judge were to take a neutral stand between an interpretation of a statute that would bring obedience to it within the capacity of the ordinary citizen and an interpretation that would make it impossible for him to comply with its terms.” The Morality of Law (2nd ed., 1969), p. 132. The judge's responsibility for administering justice, however, imposes demands beyond those made by the “internal morality” of law.

99 W. Burnett Harvey, “The Rule of Law in Historical Perspective” (1961) 59 Mich.L.R. 487.

1 J. H. Ely, Democracy and Distrust.

2 Lee v. Bade and Torrington Junction Railway Co. (1871) L.R. 6 C.P. 576, 582 (Willes J.). Note the comment of Lord Bridge, expressed extra-judicially: “It is one thing to consider the merits and demerits of different constitutional models in relation to a state which is about to embark on a new life of constitutional independence. It is quite another to invite a mature and sophisticated political community to abandon constitutional conceptions which are deeply embedded in the national consciousness and to set out on a new constitutional road.” Preserving Freedom under the Law (Presidential Address to the Holdsworth Club of the University of Birmingham, 1982).

3 The argument assumes that Parliament is properly representative of the electorate. A strong case can be made for electoral reform to ensure that Parliament more fairly reflects majority opinion in the United Kingdom as a whole and that the government commands majority support: see esp. H. W. R. Wade, Constitutional Fundamentals, Chap. 2.

4 Joseph Raz, op. cit., note 12 supra, p. 210.

5 Ibid., p. 214.

6 Compare Lord Simon's description of the ordinary canons of construction in Maunsell v. Olins [1975] A.C. 373, 391.

7 Dicey, p. 413.