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Lionel Cohen Lecture 2018, Jerusalem, 9 April 2018
Published online by Cambridge University Press: 24 October 2018
In a report to the Security Council of the United Nations in August 2004 the UN Secretary General said that ‘the rule of law’ is a concept at the very heart of the UN's mission. In September 2015 the UN agreed a set of Sustainable Development Goals (STGs) for 2015–30, which came into force on 1 January 2016. Goal 16.3 of the SDGs enshrines a commitment by all UN members to ‘promote the rule of law at the national and international levels, and to ensure equal access to justice for all’. In March 2016 the Council of Europe's Commission for Democracy through Law, known as the Venice Commission, published a report which said that the rule of law is a concept of universal validity. It observed that in an increasing number of cases states refer to the rule of law in their national constitutions. The rule of law is expressly mentioned in a United Kingdom statute: section 1 of the Constitutional Reform Act 2005 says that the Act does not adversely affect the existing constitutional principle of the rule of law. The statute, however, does not contain any definition of the rule of law; nor does any other UK statute. There is no legally binding definition anywhere.
I would like to thank John Sorabji for his assistance in the preparation of this lecture.
1 The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies: A Report by the Secretary General (23 August 2004), UN Doc S/2004/616, para 6, http://www.un.org/en/ga/search/view_doc.asp?symbol=S/2004/616.
2 UNGA Res 70/1 (25 September 2015), Transforming our World: The 2030 Agenda for Sustainable Development, UN Doc A/RES/70/1, Goal 16.3.
3 Council of Europe, European Commission for Democracy through Law (Venice Commission), ‘Rule of Law Checklist’, CDL-AD(2016)007, March 2016, para 9, http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2016)007-e.
4 Constitutional Reform Act 2005, s 1(a); see also Legal Services Act 2007, s 1(1)(b).
5 Bingham, Tom, The Rule of Law (Penguin 2010)Google Scholar.
6 ibid 8.
7 Fuller, Lon L, The Morality of Law (2nd edn, Yale University Press 1969) 35–40Google Scholar. These factors are said by Fuller to reflect the idea of ‘fidelity to law’ – that is to say, in seeking to identify ‘the inner morality of law’: Fuller, Lon, ‘Positivism and Fidelity to Law: A Reply to Professor Hart’ (1957) 71 Harvard Law Review 630, 630–31CrossRefGoogle Scholar. This is also supported by other prominent legal philosophers. Fuller's eight desiderata are described by Nigel Simmonds as ‘the archetype of law’: Simmonds, Nigel, Law as a Moral Idea (Oxford University Press 2007) 54Google Scholar fn 26.
8 Simmonds, ibid 100, 119, 141, 189 (‘The idea of law is the idea of a domain of universality and necessity within human affairs, making it possible to enjoy a degree of freedom and independence from the power of others, in the context of a life within a political community’). Sunstein also considers that rules operate to constrain the exercise of arbitrary power, and that they create a space in which people can act free from fear of the state. While a rule is on the books, everyone subject to state power may invoke its protection and disabilities: Sunstein, Cass, Legal Reasoning and Political Conflict (Oxford University Press 1997) 193Google Scholar. Simmonds argues that, to the extent that Fuller's eight desiderata are complied with, citizens will enjoy domains of optional conduct within which they enjoy some degree of protection against the forcible interference of other citizens – what he calls ‘domains of liberty’: Simmonds, Nigel, Central Issues in Jurisprudence (2nd edn, Sweet & Maxell 2002) 264–65Google Scholar.
9 ECtHR, S and Marper v United Kingdom, App nos 30562/04 and 30566/04, 4 December 2008, para 95. See also Lord Diplock in Black-Clawson International Ltd v Papierweke AG [1975] AC 591, [638] (‘The acceptance of the rule of law as a constitutional principle requires that a citizen, before committing himself to any course of action, should be able to know what the legal consequences are that will flow from it’).
10 Etherton, Terence, ‘Law Reform in England and Wales: A Shattered Dream or Triumph of Political Vision?’ (2008) 10 European Journal of Law Reform 135, 135–37Google Scholar.
11 ibid.
12 Law Commissions Act 1965 (UK).
13 Proposals for English and Scottish Law Commissions, 1965 (Cmnd 2573).
14 Harnessing AI in dispute resolution has hardly begun. In this area, as in other areas of IT, Israel may be able to provide a lead. One Israeli start up – LitiGate – promotes the use of text analysis algorithms to identify case law relevant to the issues raised in statements of case, something which could no doubt be adapted for judicial use.
15 R (Unison) v Lord Chancellor [2017] UKSC 51.
16 ibid [66], [68].
17 Tamanaha, Brian, On the Rule of Law: History, Politics, Theory (Cambridge University Press 2004) 9CrossRefGoogle Scholar.
18 ibid 26.
19 And without prohibitive cost or inordinate delay (this is also true of civil disputes).
20 Laid down by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 230 – a case about the rather mundane issue of whether a local authority was entitled to make the grant of a licence for Sunday performances at a local cinema conditional on no children under 15 years of age being admitted, whether accompanied by an adult or not.
21 CCSU v Minister for Civil Service [1985] AC 374, 410.
22 Padfield v Minister of Agriculture [1968] AC 997.
23 ibid 1030.
24 R v Inland Revenue Commissioners, ex p Preston [1985] AC 835, 865–66 (Lord Templeman).
25 R v Panel on Take-overs and Mergers, ex p Guinness plc [1990] 1 QB 146, 160 (Lord Donaldson MR).
26 R v Secretary of State, ex p Bugdaycay [1987] AC 514, 531 (Lord Bridge). In that case one of the appellants, who had entered as a visitor from Kenya and applied for asylum as a refugee from Uganda, believed that if he was refused asylum he would not be permitted to re-enter Kenya and in that event would be removed to Uganda where he would be killed. The House of Lords, allowing his appeal and quashing the Secretary of State's order for his removal, held that, although the Secretary of State had made a discretionary administrative decision to remove the appellant, that could be challenged in judicial review proceedings and the order would be quashed because the Secretary of State had not adequately considered the danger that the appellant's removal to Kenya would result in his return to Uganda and persecution and death there.
27 Jeffrey Jowell, ‘Beyond the Rule of Law: Towards Constitutional Review” [2000] Public Law 671; Lord Carnwath, ‘From Judicial Outrage to Sliding Scales: Where Next for Wednesbury?’, ALBA Annual Lecture, 12 November 2013; Carnwath, Lord CVO, ‘From Rationality to Proportionality in the Modern Law’ (2014) 44 Hong Kong Law Journal 447Google Scholar, 447.
28 Sales, Philip, ‘Rationality, Proportionality and the Development of the Law’ (2013) 129 Law Quarterly Review 223Google Scholar, 223.
29 World Economic Forum, ‘Global Competitiveness Report 2017–2018: Judicial Independence’, http://reports.weforum.org/global-competitiveness-index-2017-2018/competitiveness-rankings/#series=EOSQ144 (the UK is placed 6th).
30 Her Majesty's Courts and Tribunals Service, ‘Framework Document’, July 2014, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/384922/hmcts-framework-document-2014.pdf.
31 TheCityUK put the surplus of the UK legal services market at £3.4 billion in 2015: TheCityUK, ‘The Impact of Brexit on the UK-based Legal Services Sector’, Report, December 2016, para 2, https://www.thecityuk.com/research/the-impact-of-brexit-on-the-uk-based-legal-services-sector.
32 European Network of Councils for the Judiciary, ‘Independence, Accountability and Quality of the Judiciary: Performance Indicators 2017’, Report, 9 June 2017, http://njb.nl/Uploads/2017/6/encj-report-ia-2017-adopted-ga.pdf.
33 ibid 10, 40–41.
34 Raz, Joseph, The Authority of Law: Essays on Law and Morality (Oxford University Press 1979) 211CrossRefGoogle Scholar, 221; Paul P Craig, ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’ [1997] 33 Public Law 467, 471.
35 Bingham (n 5).
36 Tamanaha, Brian, On the Rule of Law (Cambridge University Press 2000) 101Google Scholar.
37 Universal Declaration of Human Rights, UNGA Res 217A (III), UN Doc A/810 (1948) 71.
38 European Convention for the Protection of Human Rights and Fundamental Freedoms (entered into force 3 September 1953) 213 UNTS 222 (ECHR).
39 Charter of Fundamental Rights of the European Union [2012] OJ C 326/391.
40 International Covenant on Civil and Political Rights (entered into force 23 March 1976) 999 UNTS 171 (ICCPR).
41 International Covenant on Economic, Social and Cultural Rights (entered into force 3 January 1976) 993 UNTS 3 (ICESCR).
42 For example, where more than one human right rubs up against another in the context of arts 8 to 11 of the ECHR, such as privacy and respect for family life (art 8), on the one hand, and freedom of information and of the press (art 10), on the other hand, see Campbell v MGN [2004] AC 457; or between art 8 and art 9 (freedom of religion) see Islington London Borough Council v Ladele [2010] 1 WLR 955; McFarlane v Relate Avon Ltd [2010] IRLR 872; Preddy v Bull [2012] 1 WLR 2514; Black v Wilkinson [2013] 1 WLR 2490.
43 Venice Commission (n 3) para 31.
44 UNGA Res 70/1 (n 2) para 47.
45 UN Statistical Commission, ‘Data and Indicators for the 2030 Agenda for Sustainable Development Work Plans for Tier III Indicators’, 7–10 March 2017, para 205 onwards; Office for National Statistics (UK), ‘Response to the Office for National Statistics Consultation on the Approach to Measuring and Reporting SDGs in the UK’, 29 September 2017, https://consultations.ons.gov.uk/sustainable-development-goals/ons-approach-to-measuring-reporting-sdgs-in-the-uk/results/sdg-consultation-response.pdf.
46 UN Department of Economic and Social Affairs, Sustainable Development Knowledge Platform, ‘Voluntary National Reviews Database’, https://sustainabledevelopment.un.org/vnrs.
47 House of Commons, International Development Committee, ‘UK Implementation of the Sustainable Development Goals: First Report of Session 2016–17’, HC 103, 8 June 2016, para 70, https://publications.parliament.uk/pa/cm201617/cmselect/cmintdev/103/103.pdf.
48 ibid para 74.
49 UK Government, Department for International Development, ‘Agenda 2030: The UK Government's Approach to Delivering the Global Goals for Sustainable Development – At Home and Around the World’, March 2017, 42, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/603500/Agenda-2030-Report4.pdf (‘Access to the justice system – The legal aid scheme plays a vital role in providing access to justice, and is targeted to ensure access to public funds to those cases that most require it. We also enable effective access to courts and tribunals through a fee remissions system, so that those unable to afford fees are not denied access. The remissions scheme is targeted towards those in vulnerable households on low incomes who are in receipt of certain state benefits’).
50 UN Economic and Social Council, Statistical Commission, Report of the Inter-Agency and Expert Group on Sustainable Development Goal Indicators (15 December 2016), UN Doc E/CN.3/2017/2), 34, https://unstats.un.org/unsd/statcom/48th-session/documents/2017-2-IAEG-SDGs-E.pdf; UNGA Res 70/1 (n 2) Target 16.3.
51 Venice Commission (n 3) para 23 (‘The SDGs, which comprise a number of Goals, are aimed to be truly transformative and have profound implications for the realization of the agenda, envisaging “[a world] in which democracy, good governance and the rule of law, as well as an enabling environment at the national and international levels, are essential for sustainable development … .” Target 16 commits States to “Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels”. The achievement of Target 16 will be assessed against a number of targets, some of which incorporate Rule of Law components, such as the development of effective accountable and transparent institutions (target 16.6) and responsive, inclusive participatory and representative decision making at all levels (target 16.7). However, it is Target 16.3, committing States to “Promote the rule of law at the national and international levels and ensure equal access to justice for all” that offers a unique opportunity for revitalizing the relationship between citizens and the State. This Checklist could be a very important tool to assist in the qualitative measurement of Rule of Law indicators in the context of the SDGs’).
52 Council of Europe, ‘European Judicial Systems Efficiency and Quality of Justice’, CEPEJ Studies No. 23, 2016, 7, https://rm.coe.int/european-judicial-systems-efficiency-and-quality-of-justice-cepej-stud/168079048e. Country specific data can be obtained at: http://www.coe.int/t/dghl/cooperation/cepej/evaluation/2016/STAT/default.asp.