Rule of law

Introduction-
The rule of law is a legal maxim and it means supremacy of law. The Greek origin of this concept found
in quoting passages from Plato and Aristotle. In England the rule of law was seen alive when Magna
Carta 1215 was signed. The concept was even glorified at the signing of Bill of Rights 1689. The rule of
law doctrine says that when government bodies made any decision they should apply known principals
or laws with a minimal discretion. This rule of law doctrine is used to describe certain characteristics
about the proper functioning of a legal system. This doctrine is also used to maintain the relationship
between legal system and political powers and with individuals. In order to protect rule of law judges
have played an important role such as recognizing fundamental human rights and freedom by using the
rules of statutory interpretation. On the other hand parliament has the power both to protect rule of
law and to violate rule of law through the acts of parliament. Although recent parliamentary procedure
provide a safeguard in order to avoid breach of rule of law principles, but parliamentary supremacy
means that if parliament wants they can pass act or laws which is contrary to fundamental principles of
rule of law and human rights.

Bingham’s eight ‘sub-rules’-

The modern approach to the rule of law is found in the works of Lord Bingham. Lord Bingham described
the rule of law by reference to eight ‘sub-rules’. The first rule is that the law must be accessible, clear
and predictable. The reasoning behind this requirement is that if everyone is bound by the law they
must be able to find out the law without undue difficulty. In recent years, considerable efforts have been
made to enable British citizens to have access to the ‘raw’ law through government websites such as
www.legislation.gov.uk as well as government department websites and the www.gov.uk portal. This
represents a significant advance in the accessibility of the law. The law also must be clear. Clarity is
always a difficult challenge for parliamentary draftsmen of statutes and statutory instruments. Particular
difficulties are generated when areas of law are very controversial politically and subject to frequent
legislative change. Clarity of statute making is variable, with political influence sometimes leading to
hasty legislation. Predictability is a very important aspect of the rule of law. In dictatorships, citizens are
often left uncertain as to whether or not a particular action will be subject to criminal punishment – the
power of the state is enhanced by the unpredictability. Unpredictability also arises when laws are made
to apply retrospectively (to actions which have already happened). This happened in relation to the War
Damage Act 1965(Burmah Oil vs. Lord Advocate). Under the Article 7 of the ECHR, the courts will
interpret legislation under a presumption that it does not have retrospective effect. The second rule is
that Questions of legal right and liability should normally be dealt with under the law and not by
discretion’s. The reasoning for this rule is that if broader discretion is conferred upon judges then there
is a greater possibility of arbitrariness. The third rule is that the laws of the land should apply equally to
all, unless there are objective differences’. Generally law should equally apply to all. However if the law
is apply to all then sometimes the rule of law does not allow any distinction to be made between British
national and others. In such cases rule of law is violate as in Belmarsh Case. In the criminal law children
and those without mental capacity are treated differently in terms of procedures for investigation and
trial as well as in sentencing. Children under 10 are treated as doli incapax – legally incapable of
committing a crime. The fourth rule is that Ministers and public officers must act in good faith, fairly,
for the purpose for which the powers were conferred, without exceeding the limits of such powers
and not unreasonable. The remedy of judicial review is available to challenge the actions of ministers
and other public bodies where they have acted outside the powers which were given to them, or acted
unfairly or unreasonably. Decision making can be challenged if there is bias or individuals are not given
the right to a fair hearing. The fifth rule is that the law must protect human rights’. The incorporation of
the ECHR into UK law by the HRA has had major implications for the protection of individual rights. The
sixth rule is that genuine civil disputes must be resolved without undue cost or delays. Although
alternative dispute resolution (ADR) is increasingly popular and encouraged by government, handling
civil court cases is still a core function of the legal system. In R v Lord Chancellor, ex p Witham it was
held that Access to the courts is a constitutional right; it can only be denied by the government if it
persuades Parliament to pass legislation which specifically – in effect by express provision – permits the
executive to turn people away from the court door. The costs of civil litigation are always controversial.
The Civil Procedure Rules have limited the problem of delay in the civil justice system, but the
withdrawal of civil legal aid is increasing the costs for ordinary litigants. The seventh rule is that
Adjudicative procedures should be fairly. The last rule is that International law must be complied with.

‘Content-free’ and ‘content-rich’ interpretations of the rule of law-

The content-free interpretation of the rule of law focuses on the form of the law and the procedures by
which law is made. The legal writer Raz identified eight basic principles which reflect this approach: 1. All
law should be prospective, open and clear; 2. Laws should be relatively stable; 3. The making of laws
should be guided by clear rules;4. The judiciary should be independent; 5. The principles of natural
justice should be observed; 6. The courts should be able to review the implementation of other
principles; 7. The courts should be easily accessible; 8. The discretion of the police and crime fighting
agencies should not pervert the law.

The ‘content-free’ interpretation of the rule of law, described by Raz, and supported by Paul Craig
emphasizes the importance of the form of law and its procedures. The ‘content-rich’ interpretation,
favoured by Dworkin, attributes morals and values to the rule of law. It appears that Lord Bingham’s
definition of rule of law is clearly not ‘content-free’ because his sub-rules (5 and 8) require laws to
comply with human rights.

AV Dicey’s description of the rule of law-

AV Dicey in his book ‘Introduction to the study of the law of the constitution’ interpreted the rule of law
by giving three principles. Firstly, No one is to be punished or suffer loss except for a distinct breach of
law. Secondly, No one is above the law i.e. all are equal under law. Thirdly, rights and freedom are best
protected under the common law rather than by a formal bill of rights.
Sir Ivor Jennings, in “The law and the constitution” has criticized Dicey’s assumption. In relation to first
theory he says that the rule of law was inconsistent with the use of discretionary powers by the
executive. He also said that there is a great increase in the use of delegated or secondary legislation, in
the form of rules and regulations. Jennings also argued strongly that Dicey’s second point ignored the
the special immunities certain categories of individuals have, for example children and foreign diplomats
with diplomatic immunity. Finally, the importance of statute (e.g. the HRA) in protecting the rights of
individuals is completely ignored in Dicey’s third point.

Protection of the rule of law by the courts-

In order to protect the rule of law the UK judges play a vital rule in interpreting statute and developing
the common law. Protection of the rule of law by the courts has been erratic since, by its nature, issues
are only dealt with when an individual chooses to take them to court. The social background of the
judges has been felt by some critics (e.g. Griffith) to encourage an excessively conservative and cautious
approach. Cases such as Entick v Carrington and M v Home Office have demonstrated the courts’
willingness, in some circumstances, to challenge the power of government in order to protect personal
liberties. In M v Home Office, the HL held that the government must obey the law.it had no immunity
from court orders and government minister could be held liable for contempt. On the other hand in
Malone vs. MPC, it was held that there is no domestic law protecting rights of the individual when it
comes to telephone interception. The court refused to provide that protection. Later in Malone vs. UK,
the ECtHR held that UK had violated article 8 of the ECHR. In response the UK government passed the
Interception of Communications Act 1985. In A v Secretary of State for the Home Department, the
powers of the state to detain non-UK nationals without trial under the Anti-terrorism, Crime and
Security Act 2001 were considered. The 2001 Act was challenged under the HRA on the grounds of
discrimination under Article 14 of the ECHR, because it only applied to non-UK nationals. The House of
ruled that it was applied in a discriminatory manner. After this decision the government passed ‘control
order’ regime under the Prevention of Terrorism Act 2005 which applied to UK nationals as well as non-
UK nationals. In R v Director of the Serious Fraud Office (2008), the House of Lords refused to grant
judicial review on the grounds that national security was threatened.

Protection of the rule of law by Parliament-

Parliament has the power by passing act both to protect the rule of law and undermine the rule of law.
The doctrine of parliamentary sovereignty gives Parliament the ultimate decision over whether or not an
Act of Parliament that conflicts with the rule of law should be passed. The courts have only limited
powers of constraint. The third doctrine of AV dicey on parliamentary supremacy sates that the court
cannot challenge the validity of an act of parliament. The consequences of a clash between these two
principals were discussed obiter in Jackson v A-G. In Jackson v A-G (2005), Lords Steyn and Hope said in
obiter that in extreme circumstances where the rule of law would be seen by the courts as justified they
can striking down Acts of Parliament that removed fundamental rights.
Protection of the rule of law by the Lord Chancellor-
S.1 of the Constitutional Reform Act 2005 explicitly preserved the existing constitutional role of the Lord
Chancellor. The Act failed to spell out what that role was. Although not defined in the 2005 Act, the role
has been described as to speak up in cabinet and Parliament against proposals that might damage the
rule of law. The role is not one that is enforceable in the courts. Lord Bingham has argued instead that
the Lord Chancellor’s role in protecting the rule of law would no doubt be susceptible, in principle, to
judicial review. Given that meetings of the cabinet are held in private, the exact role in decision making
of individual Lord Chancellors has been hard to determine and, as a result, the courts have had no
opportunity to consider it.

Relationship between rule of law and separation of power-

The principle of rule of law also has a very close link with the doctrine of separation of power. The
doctrine of separation of power requires that all three branches i.e. legislature, judiciary, executive must
exercise separate independent function. Thus rule of law requires that at no time should all authority
rest with a single branch of government. Instead, power has to be measured and separated among
these three branches.

Conclusion-
It is not possible to exactly define the rule of law because it is a philosophical and a political concept.
There will be always vagueness if anyone tries to define or confine this wide concept of rule of law. The
concept of rule of law has remained the most inspirational and strongest in constitutional law
worldwide. Thomas Fuller truly said that-‘be you ever so high, the law is above you’
 Previous year question and examiner’s report
2014(Zone A & B): Question 2-How important is the doctrine of “the rule of law” to English public law?

2013(Zone A):Question 3:Does the doctrine of the rule of law have a sufficiently certain meaning to be
a useful guiding principle of UK constitutional law?

Law cases, reports and other references the Examiners would expect you to use-

Entick v Carrington; Burmah Oil; Malone; M v Home Office; ex p. Fewings; Corner House Research; Belmarsh; Bancoult;
Pinochet. Constitutional Reform Act 2005.

Common errors-

Insufficient understanding about the scope and the contested interpretations of the rule of law. Discussion usually limited to
Dicey’s ‘formal’ understanding (and not also the ‘substantive’ conception), and memorising Tom Bingham’s eight points without
explaining them. Drawing up lists is never a good way to approach an examination question!

A good answer to this question would…

Set out the historical emergence of rule of law (Aristotle, Magna Carta); analyse its different versions (rule of law relates to the
substance of the relationship between citizens and government, and deals with the processes through which that relationship is
conducted). Recognise that rule of law is an ideal for law (which must be prospective, stable, general: Burmah Oil; Belmarsh) as
well as government (Entick v Carrington; Malone; Bancoult). A very good answer would discuss the substantive/liberal concept
as well: society must possess certain individual rights if it wishes to conform to the rule of law. Discussion must be critical: if
conceived in formal or procedural terms, does rule of law enable the wealthy and powerful to manipulate its forms to their own
advantage? If conceived in substantive terms, does rule of law not amount to a complete social and political philosophy? Rule
of law is difficult conceptually. Take ‘equality’: is it a formal concept (like treatment of like cases)? A substantive concept (a right
to fairness or rationality in the exercise of discretion)? Does it apply to the Crown (M v Home Office)? At what point does rule of
law become equated with the autocratic rule of judges?

Poor answers to this question…

Discuss primarily Dicey's version of the rule of law; are unable to support the conceptual argument with cases; simply recite
Bingham’s eight points without analysis; show no awareness of the complexity of the issue.

2012 (Zone B)-Question 8

Discuss whether the doctrine of the rule of law has a sufficiently certain meaning to be a useful
guiding principle of United Kingdom constitutional law.

2008(Zone A & B)-Question 2

‘The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is
based’

Discuss