Understanding the Rule of Law

There must frequently be a degree of flexibility supplied by administrative discretion, but this discretion is not arbitrary in nature; it must be exercised in good faith and within the limits set by the legislature

To commemorate the first anniversary of the brutal assassination of Daphne Caruana Galizia for daring to uncover some uncomfortable truths about one or more persons, I am proposing this long article divided into two pieces. Today’s is the second and final instalment.

It is true that many of us disagreed, even strongly, with Mrs Caruana Galizia’s style and the way she attacked people. However, it is equally true that many of us respected her for fighting the fight for the rule of law. This is an adaptation of an essay written by Oxford academic Arthur Goodhart, which appeared in a law journal many years ago; it explains the rule of law which I shall quote almost word by word.

In the United States, the emphasis is placed primarily on the control of the federal and state legislatures by the rule of law as expressed in the Constitution, while in Great Britain and France the interest is centred almost entirely on the control of the executive.

The relation between legislative power and the rule of law doctrine gives rise to a most interesting and contentious problem, because in a federal state, such as the United States, it is assumed without argument that the legislature can always be limited by law as expressed in the Constitution, while in a unitary state, such as Great Britain, it is difficult for jurists to appreciate that such a limitation is possible.

Thus the author Dicey, in his classic Law of the Constitution, speaks of Parliament as “an absolutely sovereign legislature” which therefore “cannot be bound by any law”. From this standpoint, there is no distinction in theory between the absolutism of Parliament and that of the most despotic monarchs.

Dicey’s failure to distinguish between a statute of Parliament and the order of a despot is based on his conclusion that both Parliament and the despot can be described as absolutely sovereign. But is this true?

A despot can only be described as an absolute sovereign if his will, however it may be expressed, must be obeyed. He is not an absolute sovereign if his will must be expressed in a particular manner; for instance, if it must be issued under the Great Seal, or if it must have the con- currence of others. It is true that Louis XIV said that “l’État c’est

moi”, but this was a misinterpretation of the constitutional position, as is shown by his conflicts with the Parlements. His successors realised how great this error was.

In the case of Hitler, there was such absolute sovereignty, as no restraint of any nature was placed on the expression of his will. On the other hand, there is no such absolute sovereignty in the case of Parliament, because there are fixed rules that must be followed before the expression of its will can be obeyed. No person or body of persons can be described as absolutely sovereign if they are bound by rules of procedure.

Dicey therefore failed to give a true picture of the British Constitution, because he failed to draw a distinction between those rules of law which may govern the constitution and procedure of a legislative body on the one hand, and those which may control is substantive powers on the other.

By procedural rules I mean those rules which establish how those who hold legislative power are determined and what steps they must follow in exercising this power, while the substantive rules are concerned with the subject matter which can be dealt with by the legislative body.

When we turn from the control of legislative power by the rule of law to the control of executive power, we are on less controversial ground because all jurists – certainly in the Western countries – agree that this is an essential part of government under law.

There can be no effective control if the executive offers are also vested with full legislative powers, for in such circumstances every executive can immediately be given legal validity, either before or after it has been done. The principle of separation of powers is of the utmost importance here, and it was for this reason that the authors of the United States Constitution were so insistent that the exercise of legislative and executive powers should be in separate hands.

But, it may be asked, how can this principle be reconciled with the parliamentary system that exists in almost all Western countries, as under it the heads of the chief departments of state, such as the Treasury, the Foreign Office, etc, must also be members of the legislature? In Great Britain, these officers constitute the Cabinet which, for all practical purposes, controls while it is in office all legislation enacted by Parliament.

I have emphasised the words “while it is in office” because it is in them that we find the guarantee of the rule of law. Every Cabinet officer is responsible to Parliament not only for his own acts, but also for those of his subordinates, and if he fails to satisfy Parliament that he has acted in a proper manner then the government can be defeated by an adverse vote.

It has therefore been said with truth that the hour of Question Time, which is the first business of most parliamentary sittings, is the most effective machinery that has ever been devised to control the executive by the legislature.

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