English Legal System And Its Context: The Rule Of Law And Its Application To Law Making, The Legal System And Substantive Law (Copy)

The Rule Of Law: Meaning And Origins

• Definition
  • The rule of law is the principle that no one is above the law and everyone is subject to the law, including the state and its officials.
  • It ensures that power is exercised within legal limits, protecting citizens from arbitrary government action.
• Historical Background
  • Magna Carta 1215: established the principle that even the monarch must obey the law.
  • A.V. Dicey (1885): gave the classic English definition in Introduction to the Study of the Law of the Constitution, identifying three main elements.
  • Lord Bingham (2010): modernised and expanded the concept to fit contemporary democratic societies, stressing human rights and access to justice.
  • The European Convention on Human Rights (ECHR) and Human Rights Act 1998 reinforce the rule of law in the UK today.

Dicey’s Three Pillars Of The Rule Of Law

• 1. Supremacy Of Regular Law
  • No person can be punished except for a breach of the law, established in ordinary courts.
  • Entick v Carrington (1765): government officials had searched the claimant’s house without legal authority; the court ruled against them, affirming state power must be backed by law.
• 2. Equality Before The Law
  • Everyone is subject to the same law and courts, regardless of status or position.
  • Government ministers and ordinary citizens must be treated alike under the law.
  • M v Home Office (1993): confirmed that even government ministers can be held in contempt of court for disobeying court orders.
• 3. Constitution Is The Result Of Ordinary Law
  • Rights are protected by the ordinary courts rather than being enshrined in a higher written constitution.
  • This reflects the unwritten UK constitution, where parliamentary sovereignty and common law together secure liberty.

Lord Bingham’s Modern Principles Of The Rule Of Law

Lord Bingham expanded the rule of law into eight principles (2010):

1. Law Must Be Accessible, Clear And Predictable.
   • People must be able to understand what the law requires.
   • Example: clarity in statutes like the Consumer Rights Act 2015 helps consumers and traders.
2. Legal Rights And Liabilities Should Be Decided By Application Of The Law, Not Discretion.
   • Prevents arbitrary government action.
   • Example: unlawful detention under anti-terrorism laws struck down in A v Secretary of State for the Home Department (2004) (Belmarsh case).
3. Equality Before The Law.
   • Reinforces Dicey’s second pillar.
   • Example: R v R (1991): marital rape recognised as a crime, showing that even within marriage, equality and rights are upheld.
4. The Law Must Protect Human Rights.
   • Rule of law is meaningless without protection of fundamental rights.
   • Enshrined in Human Rights Act 1998.
5. Means Must Be Provided For Resolving Disputes Without Prohibitive Cost Or Delay.
   • Access to justice must be real and not merely theoretical.
   • Example: Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) reduced legal aid, raising concerns about undermining this principle.
6. Public Officials Must Exercise Powers In Good Faith And Within Limits.
   • Judicial review enforces this (see Council of Civil Service Unions v Minister for the Civil Service (1985) – the GCHQ case).
7. Adjudicative Procedures Must Be Fair.
   • Right to a fair trial is fundamental (Article 6 ECHR).
   • Pinochet (No.2) (1999): decision overturned when it emerged that a judge failed to declare links to Amnesty International.
8. The State Must Comply With International Law.
   • Example: UK compliance with European Union law before Brexit and its continuing adherence to international treaties.

Application Of The Rule Of Law To Law Making

• Parliamentary Sovereignty And Rule Of Law
  • Parliament can technically make any law, but the rule of law ensures that laws are made in a fair, transparent, and accountable process.
  • Judicial Review: Courts can strike down delegated legislation if it breaches rule of law principles (procedural or substantive ultra vires).
  • R v Secretary of State for the Home Department, ex parte Fire Brigades Union (1995): executive action found unlawful when it contradicted parliamentary intention.
• Delegated Legislation And Rule Of Law
  • Controls such as scrutiny committees, affirmative/negative resolution procedures, and judicial review safeguard against abuse.
  • Ensures that law-making power is not misused by unelected officials.
• Statutory Interpretation And Rule Of Law
  • Courts interpret statutes consistently with rule of law values.
  • R v Secretary of State for Transport, ex parte Factortame (No.2) (1991): UK courts suspended an Act of Parliament conflicting with EU law, upholding legal certainty.

Application Of The Rule Of Law To The Legal System

• Judicial Independence
  • Essential for the rule of law: judges must be free from political interference.
  • Guaranteed by Constitutional Reform Act 2005 (created independent Judicial Appointments Commission, separated judiciary from House of Lords).
• Access To Justice
  • Rule of law requires fair access to courts.
  • Legal aid cuts (LASPO 2012) raised concerns that access to justice is undermined.
• Checks On Executive Power
  • Rule of law ensures courts can review government action.
  • R (Miller) v Secretary of State for Exiting the European Union (2017): government could not trigger Brexit without Parliament’s approval.
  • R (Miller) v Prime Minister (2019): prorogation of Parliament declared unlawful.

Application Of The Rule Of Law To Substantive Law

• Criminal Law
  • Must be certain, clear, and not retrospective.
  • Article 7 ECHR: no punishment without law (nullum crimen sine lege).
  • Example: Shaw v DPP (1962): creation of a new crime of “conspiracy to corrupt public morals” raised concerns about judicial law-making breaching rule of law.
• Civil Law
  • Laws governing contracts, torts, and property must be applied consistently and fairly.
  • Donoghue v Stevenson (1932): creation of duty of care illustrated rule of law by applying fairness and justice in negligence.
• Human Rights And Equality
  • Equality Act 2010: substantive protection against discrimination enshrines rule of law values.
  • Human Rights Act 1998: incorporates the ECHR into domestic law, ensuring individuals can challenge state action in UK courts.

Evaluation Of The Rule Of Law

• Strengths
  • Protects individuals from arbitrary power.
  • Ensures predictability and fairness in law.
  • Fundamental safeguard in democratic society.
• Weaknesses
  • Parliamentary sovereignty in the UK means Parliament can still pass laws contrary to rule of law (e.g., Indefinite detention under Anti-terrorism, Crime and Security Act 2001, struck down in Belmarsh (2004) but Parliament retains power).
  • Inequalities in access to justice (legal aid restrictions, complex procedures).
  • Sometimes courts create uncertainty by developing new principles (judicial activism vs certainty).

Written and Compiled By Sir Hunain Zia, World Record Holder With 154 Total A Grades, 7 Distinctions and 11 World Records For Educate A Change AS Level Law Full Scale Course