Value of non-retrospectivity.

Lord Millett, supported partly by Lord Hope and Lord Hutton,

took a more radical approach. He argued that, irrespective of the Tor-

ture Convention, official torture was an international offence under a

developing customary international law and was therefore unlawful

at common law. For him there was no immunity even in respect of

crimes committed before the 1988 Act. Similarly Lord Hutton said

that ‘certain crimes are so grave and so inhuman that they consti-

tute crimes against international law and that the international com-

munity is under a duty to bring to justice a person who commits such

crimes’ (at 163).

Lord Goff, dissenting, took the ‘core’ rule of law perspective.

He read the texts more strictly than the others, holding that the State

Immunity Act 1978 s. 20 gives immunity to a former head of state

in respect of official acts wherever committed subject to the estab-

lished international principle that immunity must be expressly waived.

He emphasised the value of legal certainty, pointing out the difficulty

of drawing lines between overriding international offences as perceived

by the majority and ordinary offences for which immunity can be

claimed, and the problems that would be faced by former heads of

state (such as Margaret Thatcher) who ventures abroad.

104 General Principles of Constitutional and Administrative Law

Pinochet therefore illustrates the conflict between the core and the

expanded conceptions of the rule of law. The outcome seems to rein-

force a cautiously expanded concept of the rule of law, namely that the

courts will try to integrate domestic law with substantive values in

the international order, at least where there is a statutory link between

the two legal orders. However no single rationale commanded unani-

mous support.

5.6. Dissent and the Rule of Law

Allan (2001, ch. 4) claims that the rule of law requires the individual

to have the last word. He argues that, ‘at the heart of the rule of law

is the role of the individual moral conscience: any rule’s entitlement to

obedience, even when issued in apparent exercise of the state’s author-

ity, is ultimately a matter of personal moral judgement. This general

principle governs the identification of relevant legal obligations as well

as (other) moral obligations’. This seems to go beyond the common-

place observation that a person may sometimes have a moral right to

break the law. Allan seems to suggest that an individual may have a

legal right to disobey a law that violates his or her fundamental values,

such a law being no law at all. This argument depends on the premise,

derived from the social contract, that the rule of law depends on the

consent of equal individuals. However, the consent normally envisaged

is to the legal system as a whole rather than to particular rules within it.

An invalid law or executive act is a nullity because it is not part of the

system so that the citizen is entitled to ignore it although in practice the

endorsement of a court is usually needed (see e.g. Entick v. Carrington

(1765); Boddington v. British Transport Police (1998)). Allan’s reason-

ing apparently means that a law could be a nullity against one person

and not another.

However, in order to exercise his right to dissent the individual has

to act rationally so as to consider the virtues of obeying the law in

terms of co-operation with others and the fact that a given law has

been enacted by democratic means. In other words the communitarian

values proposed by Rousseau (Chapter 2) come into play in the sense

that the citizen should subordinate his or her rationality to that of the

‘general will’. The right to dissent therefore entails important support-

ing constitutional rights. These include a right of freedom of expres-

sion which extends to advocating disobedience to the law and also a

right to information from the government so that the individual can

make a proper informed decision.

105

Constitutionalism: The Rule of Law and the Separation of Powers

Allan is not explicit as to how the right to dissent is to be protected.

He accepts that the state, representing the community, has a right to

enforce its laws but at the same time seems to regard the final decision as

lying with the individual. Presumably the opinion of a court can be no

more decisive on this matter than that of any other state agency. On the

other hand, as Hobbes emphasised, the point of law is as an exter-

nal and artificial public decision-making process intended to resolve

disagreement, even if arbitrarily, since reason alone cannot resolve dis-

agreement between incommensurable values, of which the right to

dissent is an example. On this basis a legal right to disobey the law is

contradictory. On the other hand even Hobbes accepted that a ruler

who violates its basic duty to preserve life forfeits its authority. There-

fore there is wide agreement that obedience to the law is conditional

and the argument is really about what the conditions are.