The Rule Of Law: The Petition Of Right Of 1628
The rule of law is a key constitutional principle that is the basis of legal justice. In explaining the legitimacy of the law, it stands as the cornerstone principle of the UK constitution. Given the fact that the UK does not have a codified constitution that establishes “the arrangements by which it is to be governed, nor does it have a set of core values by which the state is to be run” it has been described as “an integrated expression of historical experience conferring a unified meaning on political existence” , thus causing the rule of law to exist to a greater or a lesser extent, and to consequently evolve over centuries. Though several other constitutional principles, such as the doctrine of parliamentary supremacy and the principle
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of the Royal Prerogative exist, the rule of law appears to be of paramount significance in today’s society, where individuals depend on the judiciary to protect their basic rights that stand beyond political debate. While contradictory views exist on the rule of law, Dicey’s enumeration of its essential features, which ascertain the supremacy of the law , have been widely accepted. In advocating the fundamental idea that no individual should be punished except for a breach of law of the land without being tried before a legal court, the legal conviction of equality before the law and its legal application, it illustrates the hegemony of the law over the government.
The doctrine of the rule of law, discussed in ancient Greek history by Plato and Aristotle , dates back to the fourth century BC, has since been becoming more constitutionally significant. Both Aristotle and Plato shared the view that the law would function as a constraint on the government and the judges, in addition to guiding the conduct of individuals in a society . However, in England, this view did not sustain its potency, as it was believed that the King, having been chosen by God, possessed the right to rule and thus was above the law. Nonetheless, the superiority of the law, which lies at the core of the doctrine of the rule of law, was established in England through the Magna Carta in 1215. Magna Carta, as a landmark document, clearly recognized the core values of the rule of law as it provided equality before the law and prohibited the arbitrary use of power.
However, there is much evidence in history that suggest that even after having been signed by King John in 1215, its principles were not unswervingly accepted and applied. The Petition of Right of 1628 serves as an illustration of this, as, being established four decades after Magna Carta, it reiterated that “no freeman shall be taken, or imprisoned, or disseized” of freehold or liberties but “by the lawful judgement of his peers” or “by the law of the land” . Thus, if the rule of law had been strictly applied, the Petition of Right of 1628 would hardly have been necessary. Furthermore, the Petition of Right also aimed at allowing the right of habeas corpus, introduced through the Magna Carta, to mature, as it provided that no individual could be punished or detained except by way of law. Darnel’s case in 1627 stands as a landmark case in English history due to its contribution to the enactment of the Petition of Right, thus its role in developing the upholding of the rule of law, and protection of citizens against arbitrary use of power. In this case, Thomas Darnel, John Corbet, Walter Earl, John Heveningham, and Edmund Hampden petitioned King's Bench for a writ of habeas corpus to be set free after having arbitrarily …show more content…
jailed on “special command of his majesty" King Charles I, for refusing to contribute to the forced loans. Though the counsel for the detainees argued that the failure to specify any legal basis for the imprisonment infringed “the protection against imprisonment without due process of law contained in Chapter 24 of Magna Carta”, the court found in favour of the King as common law had no authority over the royal prerogative of the monarch, which formed "Law of the Land". The writ of habeas corpus in Darnel’s case, in addition to contributing to the enactment of Petition of Right of 1628, ensured “that cases would not be decided without having the subject of the proceedings present” at court, which clearly mirrors a necessary feature of the rule of law, referred to in Lord Bingham’s article , that adjudicative procedures must be just. Furthermore, in the case entitled Prohibitions del Roy in 1607, it was emphasised by Sir Edward Coke that “the King in his own person cannot adjudge any case, either criminal – as treason, felony etc, or betwixt party and party; but this ought to be determined and adjudged in some court of justice, according to the Law and Custom of England" . Sir Edward Coke’s ruling, while reaffirming the significance of the separation of powers between the judiciary and the executive, clearly advocates equality before the law by establishing that the law is supreme even over the government. This clearly mirrors Dicey’s notion that every man is “subject to the ordinary law of the realm and amendable to the jurisdiction of the ordinary tribunals” , through underscoring the customs set about the way in which the law is enacted, its stability, clarity, and its non-arbitrary application.
More recently, the enactment of the Constitutional Reform Act 2005, and the consequent removal of the Lord Chancellor from the House of Lords along with the creation of the supreme court, clearly separated the judiciary from the executive and legislature, thus supporting the principle of separation of powers and ensuring that the law is enforced impartially by judges who are independent of all authority, but that of the rule of law . The rule of law clearly has not always been the bedrock principle of the UK constitution but it has been gradually embedded into the constitution through history by means of statutory recognition and case law.
Parliamentary sovereignty is another principle underlying the UK Constitution, which denotes that the Westminster Parliament has the legal authority to pass, amend, or repeal any law it wishes; hence appearing as a
great threat to the integrity of the rule of law. Though Dicey argues that parliamentary sovereignty is the primary constitutional doctrine, as oppose to the rule of law, Sir John Laws, as a substantive theorist, underscores the notion that in order for democracy to flourish in a society where basic rights are “not only respected but enshrined requires that those who exercise democratic, political power must have limits set to what the may do”. The case entitled R (Jackson and Others) v Attorney General , brought to court by Jackson and two other members of the countryside Alliance, challenged the use of the Parliament Acts to enact the Hunting Act 2004, had implications that parliamentary sovereignty may not be absolute. The appellants claimed that the Parliament Act 1911 could not be used to pass the Parliament Act 1949 which amended the 1911 Act; the Hunting Act, which was passed only in accordance with the modified requirements of the Parliament Acts procedure, and was therefore invalid. Nevertheless, it was found by the House of Lords that the Parliament Act 1911 did not have any limitations that would prevent it from being used to enact the Parliament Act 1949. Thus the Hunting Act, passed in accordance with these amended requirements, was held to have been valid; hence the appellants' appeal was dismissed. However, though Lord Bingham in this case asserted that "The meaning of the expression 'Act of Parliament' is not doubtful, ambiguous or obscure ... It is used, and used only, to denote primary legislation”, Lord Steyn commented that ‘it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitution’, while Lord Hope similarly remarked that “Parliamentary sovereignty is no longer, if it ever was, absolute”, for “The rule of law enforced by the courts is the ultimate controlling factor on which” the UK constitution is based. He further commented; “The fact that your Lordships have been willing to hear this appeal and to give judgment upon it is another indication that the courts have a part to play in defining the limits of Parliament's legislative sovereignty.” Evidently, this case bears much constitutional significance as it contains the first explicit support from judges who, acting in their official capacity, underscored that courts might have the authority to strike down an Act of Parliament if it violated fundamental constitutional principles, which is in congruence with the substantive view of the rule of law that “it is the courts’ inalienable responsibility to identify and uphold” the “limits on the supremacy of Parliament”. Therefore, this case, in being a significant challenge to the orthodox view of parliamentary sovereignty, clearly supported principles of the doctrine of the rule of law about judicial supremacy. Moreover, certain leading judges and academics, such as Lord Woolf, Sir John Laws and Trevor Allan, as “judicial supremacists” have challenged the legal supremacy of the legislature. These “judicial supremacists” generally subscribe to the substantive conception of the rule of law, which, contrary to Raz’s formal view that the rule of law does not necessarily protect fundamental human rights , requires that, as Bingham points out, basic moral values are protected against any tyranny and oppression, for ‘a state which savagely repress[es] or persecute[s] sections of its people’ cannot conform to the essence of the rule of law. Additionally, as argued by Allan “the equal dignity of citizens, with its implications for fair treatment and respect for individual autonomy, is the basic premise of liberal constitutionalism, and accordingly the ultimate meaning of the rule of law” , which suggests that the doctrine of the rule of law encompasses notions about liberty, justice and equality in the relationship between the state and its citizens, which the government must respect. In the case entitled A and others v Secretary of State for the Home Department , the detention of foreign nationals under the Anti-Terrorism, Crime and Security Act 2001 was ruled by Lord Hoffman to be in contravention of Article 14 of the European Convention on human Rights. In this instance, the House of Lords ruled that the fact that measures differentiated between non-UK citizens and UK citizens, who could not be detained in this way under terms of the legislation, was discriminatory and therefore unjustifiable. Acknowledging that first pillar legislation of the EU is overriding within the domestic sphere, for as long as the European Communities Act 1972 remains in force, was in fact in congruence with a necessary feature of the rule of law, as outlined by Lord Bingham, that the state must comply with its obligations in international law in order to prevent any element of uncertainty about the law. Furthermore, in making a declaration of incompatibility in A v Home Secretary, as provided by section 4(6) of HRA, the validity of the law was not effected but the Parliament was only alerted about the discrepancy. Thus in not amending the law, the courts left the legislative procedure to the Parliament, which is also in keeping with the doctrine of separation of powers, and hence the rule of law, which, contrary to the traditional understanding of the Westminster constitution that the rule of law is only a political theory , suggests, as confirmed by Lord Woolf’s comment, that “the courts and Parliament [are] partners both engaged in a common enterprise involving the upholding of the rule of law”. It could therefore be concluded that the enactment of constitutional statutes and the greater inclination of the judiciary to proclaim its authority in restraining government power to establish judicial supremacy, elucidate that the rule of law has progressively become, and remains, the overriding constitutional principle of the UK constitution.
While the Royal Prerogative still retains a somewhat necessary function in the context of the UK’s modern constitutional monarchy, its exercise poses a certain degree of menace to overall governance of the nation. There appears to remain the possibility of misuse of the prerogative, which makes it a great threat to the doctrine of the rule of law. In Bancoult (No. 2) , despite the scepticism regarding the credibility of the security claims made by the government to justify the removal of the inhabitants of Chagos Islands by Royal Prerogative, it appears as though in cases where diplomatic interests and security are at stake, the courts are still inclined to allow the exercise of executive power, thus failing to impose genuine legal constraint on the government. Though it might appear that the lack of sufficient democratic accountability in the exercise of the Royal Prerogative, the ministerial executive prerogative in particular, undermines the rule of law, it is unlikely that the government can freely exploit the prerogative based on grounds of non-justiciability: the state still has to abide by the law as prescribed by statute or common law as well as community law. In terms of legal constraints to the Royal Prerogative, the Case of Proclamations established that the Royal Prerogative could only be exercised through Parliament, underscoring the subjection of the executive to the rule of law. Additionally, the final decision of the House of Lords in the GCHQ case , where, due to national security reasons, an Order in Council was issued, which prohibited the employees of the Government Communications Headquarters from joining any trade unions, illustrated that the exercise of prerogative powers may be amenable to judicial review. Lord Diplock, in this case, held that any exercise of prerogative power which determined a person's "private rights or legitimate expectations" was subject to review, which also denotes that the application of judicial review is dependent upon the nature of the government's powers rather than their source. However, it was decided that National Security remains a political issue and not a legal one, and thus it was not to be determined by the judiciary. Likewise, in Entick v Carrington , the court held that the sole reason of state necessity was insufficient to justify an unlawful act committed by the state, thus setting a precedent which defines and limits the scope of executive power in English law, thus emphasising the protection of the individual’s civil liberties, which is in keeping with the necessary features of the rule of law. In this respect, the ‘danger’, which the Royal Prerogative poses to democratic practices, does not appear imminent as, alongside constitutional conventions, which politically regulate the exercise of the Royal Prerogative; the courts are not at all reluctant to reaffirm their judicial authority.
In conclusion, despite several threats, the rule of law remains in tact as the cornerstone principal of the UK constitution. As suggested by McLachlin in “Prosperity and the Rule of Law” today, when society has its fundamental liberties entrenched by the government, bears more significance than ever before. Though parliamentary sovereignty is seen as the foundational legal rule and the rule of law as a political ideal, which guides the conduct of the judges, the state officials and citizens , the rule of law indeed appears to be a judicial ideal rather than a merely political one, and has heavily influenced the way in which the UK constitution has developed over the years. In having judicial supremacy as its core ideal, the rule of law has received much reassertion through case law and the enactment constitutional statutes.
of the Royal Prerogative exist, the rule of law appears to be of paramount significance in today’s society, where individuals depend on the judiciary to protect their basic rights that stand beyond political debate. While contradictory views exist on the rule of law, Dicey’s enumeration of its essential features, which ascertain the supremacy of the law , have been widely accepted. In advocating the fundamental idea that no individual should be punished except for a breach of law of the land without being tried before a legal court, the legal conviction of equality before the law and its legal application, it illustrates the hegemony of the law over the government.
The doctrine of the rule of law, discussed in ancient Greek history by Plato and Aristotle , dates back to the fourth century BC, has since been becoming more constitutionally significant. Both Aristotle and Plato shared the view that the law would function as a constraint on the government and the judges, in addition to guiding the conduct of individuals in a society . However, in England, this view did not sustain its potency, as it was believed that the King, having been chosen by God, possessed the right to rule and thus was above the law. Nonetheless, the superiority of the law, which lies at the core of the doctrine of the rule of law, was established in England through the Magna Carta in 1215. Magna Carta, as a landmark document, clearly recognized the core values of the rule of law as it provided equality before the law and prohibited the arbitrary use of power.
However, there is much evidence in history that suggest that even after having been signed by King John in 1215, its principles were not unswervingly accepted and applied. The Petition of Right of 1628 serves as an illustration of this, as, being established four decades after Magna Carta, it reiterated that “no freeman shall be taken, or imprisoned, or disseized” of freehold or liberties but “by the lawful judgement of his peers” or “by the law of the land” . Thus, if the rule of law had been strictly applied, the Petition of Right of 1628 would hardly have been necessary. Furthermore, the Petition of Right also aimed at allowing the right of habeas corpus, introduced through the Magna Carta, to mature, as it provided that no individual could be punished or detained except by way of law. Darnel’s case in 1627 stands as a landmark case in English history due to its contribution to the enactment of the Petition of Right, thus its role in developing the upholding of the rule of law, and protection of citizens against arbitrary use of power. In this case, Thomas Darnel, John Corbet, Walter Earl, John Heveningham, and Edmund Hampden petitioned King's Bench for a writ of habeas corpus to be set free after having arbitrarily …show more content…
jailed on “special command of his majesty" King Charles I, for refusing to contribute to the forced loans. Though the counsel for the detainees argued that the failure to specify any legal basis for the imprisonment infringed “the protection against imprisonment without due process of law contained in Chapter 24 of Magna Carta”, the court found in favour of the King as common law had no authority over the royal prerogative of the monarch, which formed "Law of the Land". The writ of habeas corpus in Darnel’s case, in addition to contributing to the enactment of Petition of Right of 1628, ensured “that cases would not be decided without having the subject of the proceedings present” at court, which clearly mirrors a necessary feature of the rule of law, referred to in Lord Bingham’s article , that adjudicative procedures must be just. Furthermore, in the case entitled Prohibitions del Roy in 1607, it was emphasised by Sir Edward Coke that “the King in his own person cannot adjudge any case, either criminal – as treason, felony etc, or betwixt party and party; but this ought to be determined and adjudged in some court of justice, according to the Law and Custom of England" . Sir Edward Coke’s ruling, while reaffirming the significance of the separation of powers between the judiciary and the executive, clearly advocates equality before the law by establishing that the law is supreme even over the government. This clearly mirrors Dicey’s notion that every man is “subject to the ordinary law of the realm and amendable to the jurisdiction of the ordinary tribunals” , through underscoring the customs set about the way in which the law is enacted, its stability, clarity, and its non-arbitrary application.
More recently, the enactment of the Constitutional Reform Act 2005, and the consequent removal of the Lord Chancellor from the House of Lords along with the creation of the supreme court, clearly separated the judiciary from the executive and legislature, thus supporting the principle of separation of powers and ensuring that the law is enforced impartially by judges who are independent of all authority, but that of the rule of law . The rule of law clearly has not always been the bedrock principle of the UK constitution but it has been gradually embedded into the constitution through history by means of statutory recognition and case law.
Parliamentary sovereignty is another principle underlying the UK Constitution, which denotes that the Westminster Parliament has the legal authority to pass, amend, or repeal any law it wishes; hence appearing as a
great threat to the integrity of the rule of law. Though Dicey argues that parliamentary sovereignty is the primary constitutional doctrine, as oppose to the rule of law, Sir John Laws, as a substantive theorist, underscores the notion that in order for democracy to flourish in a society where basic rights are “not only respected but enshrined requires that those who exercise democratic, political power must have limits set to what the may do”. The case entitled R (Jackson and Others) v Attorney General , brought to court by Jackson and two other members of the countryside Alliance, challenged the use of the Parliament Acts to enact the Hunting Act 2004, had implications that parliamentary sovereignty may not be absolute. The appellants claimed that the Parliament Act 1911 could not be used to pass the Parliament Act 1949 which amended the 1911 Act; the Hunting Act, which was passed only in accordance with the modified requirements of the Parliament Acts procedure, and was therefore invalid. Nevertheless, it was found by the House of Lords that the Parliament Act 1911 did not have any limitations that would prevent it from being used to enact the Parliament Act 1949. Thus the Hunting Act, passed in accordance with these amended requirements, was held to have been valid; hence the appellants' appeal was dismissed. However, though Lord Bingham in this case asserted that "The meaning of the expression 'Act of Parliament' is not doubtful, ambiguous or obscure ... It is used, and used only, to denote primary legislation”, Lord Steyn commented that ‘it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitution’, while Lord Hope similarly remarked that “Parliamentary sovereignty is no longer, if it ever was, absolute”, for “The rule of law enforced by the courts is the ultimate controlling factor on which” the UK constitution is based. He further commented; “The fact that your Lordships have been willing to hear this appeal and to give judgment upon it is another indication that the courts have a part to play in defining the limits of Parliament's legislative sovereignty.” Evidently, this case bears much constitutional significance as it contains the first explicit support from judges who, acting in their official capacity, underscored that courts might have the authority to strike down an Act of Parliament if it violated fundamental constitutional principles, which is in congruence with the substantive view of the rule of law that “it is the courts’ inalienable responsibility to identify and uphold” the “limits on the supremacy of Parliament”. Therefore, this case, in being a significant challenge to the orthodox view of parliamentary sovereignty, clearly supported principles of the doctrine of the rule of law about judicial supremacy. Moreover, certain leading judges and academics, such as Lord Woolf, Sir John Laws and Trevor Allan, as “judicial supremacists” have challenged the legal supremacy of the legislature. These “judicial supremacists” generally subscribe to the substantive conception of the rule of law, which, contrary to Raz’s formal view that the rule of law does not necessarily protect fundamental human rights , requires that, as Bingham points out, basic moral values are protected against any tyranny and oppression, for ‘a state which savagely repress[es] or persecute[s] sections of its people’ cannot conform to the essence of the rule of law. Additionally, as argued by Allan “the equal dignity of citizens, with its implications for fair treatment and respect for individual autonomy, is the basic premise of liberal constitutionalism, and accordingly the ultimate meaning of the rule of law” , which suggests that the doctrine of the rule of law encompasses notions about liberty, justice and equality in the relationship between the state and its citizens, which the government must respect. In the case entitled A and others v Secretary of State for the Home Department , the detention of foreign nationals under the Anti-Terrorism, Crime and Security Act 2001 was ruled by Lord Hoffman to be in contravention of Article 14 of the European Convention on human Rights. In this instance, the House of Lords ruled that the fact that measures differentiated between non-UK citizens and UK citizens, who could not be detained in this way under terms of the legislation, was discriminatory and therefore unjustifiable. Acknowledging that first pillar legislation of the EU is overriding within the domestic sphere, for as long as the European Communities Act 1972 remains in force, was in fact in congruence with a necessary feature of the rule of law, as outlined by Lord Bingham, that the state must comply with its obligations in international law in order to prevent any element of uncertainty about the law. Furthermore, in making a declaration of incompatibility in A v Home Secretary, as provided by section 4(6) of HRA, the validity of the law was not effected but the Parliament was only alerted about the discrepancy. Thus in not amending the law, the courts left the legislative procedure to the Parliament, which is also in keeping with the doctrine of separation of powers, and hence the rule of law, which, contrary to the traditional understanding of the Westminster constitution that the rule of law is only a political theory , suggests, as confirmed by Lord Woolf’s comment, that “the courts and Parliament [are] partners both engaged in a common enterprise involving the upholding of the rule of law”. It could therefore be concluded that the enactment of constitutional statutes and the greater inclination of the judiciary to proclaim its authority in restraining government power to establish judicial supremacy, elucidate that the rule of law has progressively become, and remains, the overriding constitutional principle of the UK constitution.
While the Royal Prerogative still retains a somewhat necessary function in the context of the UK’s modern constitutional monarchy, its exercise poses a certain degree of menace to overall governance of the nation. There appears to remain the possibility of misuse of the prerogative, which makes it a great threat to the doctrine of the rule of law. In Bancoult (No. 2) , despite the scepticism regarding the credibility of the security claims made by the government to justify the removal of the inhabitants of Chagos Islands by Royal Prerogative, it appears as though in cases where diplomatic interests and security are at stake, the courts are still inclined to allow the exercise of executive power, thus failing to impose genuine legal constraint on the government. Though it might appear that the lack of sufficient democratic accountability in the exercise of the Royal Prerogative, the ministerial executive prerogative in particular, undermines the rule of law, it is unlikely that the government can freely exploit the prerogative based on grounds of non-justiciability: the state still has to abide by the law as prescribed by statute or common law as well as community law. In terms of legal constraints to the Royal Prerogative, the Case of Proclamations established that the Royal Prerogative could only be exercised through Parliament, underscoring the subjection of the executive to the rule of law. Additionally, the final decision of the House of Lords in the GCHQ case , where, due to national security reasons, an Order in Council was issued, which prohibited the employees of the Government Communications Headquarters from joining any trade unions, illustrated that the exercise of prerogative powers may be amenable to judicial review. Lord Diplock, in this case, held that any exercise of prerogative power which determined a person's "private rights or legitimate expectations" was subject to review, which also denotes that the application of judicial review is dependent upon the nature of the government's powers rather than their source. However, it was decided that National Security remains a political issue and not a legal one, and thus it was not to be determined by the judiciary. Likewise, in Entick v Carrington , the court held that the sole reason of state necessity was insufficient to justify an unlawful act committed by the state, thus setting a precedent which defines and limits the scope of executive power in English law, thus emphasising the protection of the individual’s civil liberties, which is in keeping with the necessary features of the rule of law. In this respect, the ‘danger’, which the Royal Prerogative poses to democratic practices, does not appear imminent as, alongside constitutional conventions, which politically regulate the exercise of the Royal Prerogative; the courts are not at all reluctant to reaffirm their judicial authority.
In conclusion, despite several threats, the rule of law remains in tact as the cornerstone principal of the UK constitution. As suggested by McLachlin in “Prosperity and the Rule of Law” today, when society has its fundamental liberties entrenched by the government, bears more significance than ever before. Though parliamentary sovereignty is seen as the foundational legal rule and the rule of law as a political ideal, which guides the conduct of the judges, the state officials and citizens , the rule of law indeed appears to be a judicial ideal rather than a merely political one, and has heavily influenced the way in which the UK constitution has developed over the years. In having judicial supremacy as its core ideal, the rule of law has received much reassertion through case law and the enactment constitutional statutes.