Q.

Discuss the meaning of the ‘rule of law’, and assess how its values are accorded protection in British
constitutional law.

A. Many learned authors and judges have ventured to try to define the meaning of ‘rule of law’
throughout history, however, due to its vast scope this has proved to be quite a difficult task. The origin
of the concept can be traced back to Plato and Aristotle. Aristotle stated that for there to be a fair
society rulers must be “the servants of the law” and that “the rule of law…is preferable to that of any
individual.” Lord Bingham in his book the Rule of law dedicates the first chapter on its progression
through time as it develops firmly in the UK constitution and cites prominent milestones dating as far
back as the Magna Carta.

Rule of law requires that the Government’s power be regulated by the law through clear and
unambiguous statements and that citizens are granted rights before the law. This was the crux of Dicey’s
principles of the rule of law. He stated, firstly, that a citizen should not be punished for breaking a rule
that has been “pulled out of air” for a conviction, rather ‘crimes’ should only be a violation of the
established law of the land and should be tried before an ordinary court of the land. Secondly, no man
should be above the law regardless of rank/social standing etc and same law should be administered
across the board( the case of M v Home Office illustrates this principle in effect). And thirdly, he argued
that the constitution was a product of the judiciary’s work as most rights are a result of litigation in the
courts such as trial by jury and freedom of speech to name a few.

Dicey’s understanding of the rule of law is not however universally accepted and has be criticized by
many, the most prominent one being that of Sir Ivor Jennings. He pointed out that Dicey had ignored the
importance of statute in protecting individual’s human rights and also Dicey had not considered the use
of discretionary power to pass secondary legislation in the UK. He further adds that Dicey also failed to
consider the position of public officials who, due to their office, are subject to particular legal
constraints. Jennings argues that Dicey was “concerned not with clearing up the nasty industrial sections
of the towns, but with the liberty of the subject” and as per Jennings more discretionary power is
necessary in order to promote social justice. He thought that Dicey’s views were too conservative and
favored certainty over social justice.

A more recent attempt to define the meaning of the rule of law was made by Lord Bingham. He begins
his argument with the focus on clarity, accessibility and predictability. He discusses the importance of
these principles for a society to function and argues for one to fulfill their obligations to the state one
must know said obligations and also know for what one may face criminal liability for, so as to deter
from it. Accessibility of law is also a key factor in trade and commerce and in recent times the need for
law to be accessible has been highlighted by the Master of Rolls in the case of R (L and Another) v
Secretary Home Department 2003 and since then much work has been done to make ‘raw’ law available
to citizens through government websites. Predictability in law is yet another crucial factor for a society
to function. As stated above one must know for what acts one may face criminal liability and this
predictability is difficult to attain if retrospective laws such as War Damage Act 1965 and more recently
the Prevention of Terrorism Act 2005 are passed. The aforementioned acts were passed after the
unfavorable decision in the cases of Burma Oil and Belmarsh respectively.
Having defined what attributes the law should have he then moves to discuss how law should be applied
in a society. He argues that matters of rights and liabilities should be dealt with under the law and not by
discretion and to this effect states that the land “should be governed by laws, not by the arbitrary whim
of an official.” He further argues that there should be equality in the application of law in the sense that
the law and its application should be the same for a rich or a poor person. However, he does recognize
that certain exceptions will need to be made for people who are fundamentally different such as the
mentally ill and children.

He then proceeds to discuss how legal issues must be resolved in a society governed by the rule of law.
His argument here is twofold. Firstly, he argues for legal disputes to be resolved ‘without delay or undue
cost’. He argues that the purpose of having rights is defeated if one cannot enforce them and as
famously said justice delayed is justice denied. Furthermore, if someone cannot afford to
enforce/preserve their rights (criminal specifically) then the state should afford them legal protection.
He famously stated “denial of legal protection to the poor litigant who cannot afford to pay is one
enemy of the rule of law.” Secondly, he argues for fairness in the adjudicative procedure. As per his
understanding, to achieve this fairness it is necessary that both sides be allowed a fair opportunity to
make their arguments and the court which is to be the judge of the matter is independent of all outside
pressures (such as media) and impartial in making its decision.

Finally he discusses how a state governed by the rule of law must act. As per him it is essential for there
to be rule of law that basic human rights are afforded protection in the law and that public officials do
not abuse the powers entrusted to them. He also argues that the state must also be held to account by
making sure it complies with international laws and treaties.

The rule of law can be interpreted primarily in one of two ways; it can either be seen with a strictly
procedural view being that laws are made following all the relevant protocols and have gone through
the proper channels and only when this has been done should they be declared as laws. Joseph Raz is a
supporter of this view known as the Content-free theory and has offered eight principles why this is how
Rule of law should be interpreted; or it can be seen in the more philosophical view which attributes
morals and values to the rule of law. It calls for rights to be recognized by the law and to be
incorporated into the law. Ronald Dworkin is a supporter of this view known as the Content-rich theory
and in his book Political Judges and Rule of Law he challenged the rule book conception (content-free
theory) and argued for the rights conception (content-rich theory). Lord Bingham’s understanding of the
rule of law best fits with the content-rich theory despite having some overlap with content-free theory
as well.

Ursula Smartt in her textbook Optimize Public Law writes the 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. It points out that if the content-rich theory is to be followed society must
possess certain individual rights if it wishes to conform to the rule of law and asks the question whether
following a content-free interpretation of rule of law would enable the rich to manipulate law to their
will by way of bribing law-makers or funding election campaign of only those who would do their
bidding and ‘starving out’ those who would not.
Supposing a society is governed by the rule of law in every sense of the word, one must consider in such
a society if that rule of law is to be violated how, and by whom, should the violator be held accountable.
There are two possible institutions that could play this role; the Parliament or the Judiciary. Historically
the courts have not done a good enough job to protect the rule of law due to it often clashing with other
constitutional principles (such as Parliamentary supremacy) there are however some exceptions such as
the cases of Entick v Carrington; Malone; and Bancoult. Entick offers an early example of a court
demonstrating willingness to challenge the power of government to safeguard the rule of law while
Malone offers the same in recent times. The most recent example of this however comes from case of
Jackson v AG where the judiciary expressed support to defend the rule of law and Lord hope at para 107
stated that “the rule of law enforced by the courts is the ultimate controlling factor on which our
constitution is based.” thereby expressing willingness to preserve the rule of law regardless of its cost.
He later in the case of Axa at para 51 cited Jackson and restated his views. Jackson has indeed suggested
that courts might only interpret legislation in a way that protects the rule of law. This however does not
offer the full picture and courts protection of rule of law can at the very best be ‘erratic’. This is due to
the fact that issues would only be dealt with once brought to court and not a moment before.

Some have argued that it is the Lord Chancellor’s role to defend the rule of law by speaking up against
any proposals in Parliament which would violate the Rule of law. Although the Constitutional Reform Act
of 2005 has failed to define the Lord Chancellor’s role in protecting the rule of law it has ‘preserved’ it as
it originally was.

Parliament’s protection of rule of law must be considered while keeping the doctrine of Parliamentary
supremacy in mind and how the two principles are fundamentally in conflict with each other. In the case
of Jackson Lords Hope and Steyn speculated of extreme circumstances when a court may strike down an
act of Parliament to preserve the rule of law. Lord Steyn stated “In exceptional circumstances involving
an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the
House of Lords or a new Supreme Court may have to consider whether this is a constitutional
fundamental which even a sovereign Parliament acting at the behest of a complaisant House of
Commons cannot abolish.”

Condensing the argument presented above, I think it would be safe to conclude that although it is very
easy to pen down how a society should be governed it must be remembered that rule of law is an ideal
for both law and government and largely around the world reality seems to be rule by law and not the
former and due to the fundamental clash between the principles of Parliamentary supremacy and the
rule of law I, for one, am convinced that as it presently stands the courts and the Judiciary are the only
viable option to protect the rule of law.