A summarised version of lecture notes on UOL's Rule of Law in the UK. Very helpful to understand and grasp basic concepts and use a starting point for detailed exam preparation and revision.
The idea of the rule of law developed in Britain in the 19th century. Its meaning has been
defined and redefined through the 20th century. The rule of law does not have a fixed and
precise definition. However, it is widely acknowledged to be an essential part of a good
constitution.
Judges have an important role in protecting the rule of law, while Parliament has the power
to either safeguard the rule of law or to weaken it. The general aim of presenting the rule of
law is to constrain government action and to hold the government accountable for its
decision.
Bingham’s Eight ‘sub – rules’
One approach is to understand the rule of law as a list of essential characteristics relating to
law and legal process that ought to exist in a good constitutional system. A recent attempt at
this was by Lord Bingham. He argued that:
“The core of the existing principle is … that all persons and authorities within the state,
whether public or private, should be bound by and entitled to the benefit of laws publicly and
prospectively promulgated and publicly administered in the courts.”
Lord Bingham broke the rule of law up into eight ‘sub-rules’. This has been one of the most
influential modern discussions on the rule of law.
1. the law must be accessible and, so far as possible, intelligible, clear and predictable –
Bingham declares these requirements to be important. He gives the reasons for his
argument:
so that one knows what he might face a criminal penalty for
so one can claim their rights and understand their obligations
successful conduct of trade and commerce depends upon accessible rules.
In recent years, considerable efforts have been made to provide accessibility of law
for members of public such as through government websites as well as government
department websites.
Lord Donaldson in Merkur Island Shipping Corpn v Laughton (1983) stated that
absence of clarity is unfair to those who want to preserve the rule of law and
encourages those who wish to undermine it.
Predictability is a very important aspect as the power of statute is enhanced by the
unpredictability. Difficulties arise when laws are made to apply retrospectively. War
Damage Act 1965
Following Article 7 of the European Convention on Human Rights will interpret
legislation under a presumption that it does not have retrospective effect.
2. questions of legal right and liability should be ordinarily resolved by application of the
law and not the exercise of discretion.
, 3. the laws of the land should apply equally to all, save to the extent that objective
differences require differentiation.
In the criminal law children and those without mental capacity are treated differently
in terms of procedure for investigation and trial as well as in sentencing. Children
under 10 are treated as doli incapax – legally incapable of committing a crime.
4. law must afford adequate protection of fundamental human rights.
The incorporation of the ECHR into UK law by HRA 1998 has had major implication
for the protection of individual rights.
5. means must be provided for resolving, without prohibitive cost or inordinate delay,
bona fide disputes which the parties themselves are unable to resolve.
Although alternative dispute resolution (ADR) is increasingly popular and
encouraged by the government, handling civil court cases is still a core function of
the legal system.
In R v Lord Chancellor, ex p Witham (1998) an applicant in receipt of state benefits
successfully challenged, by way of judicial review an order made by Lord Chancellor
increasing the costs of writs. Laws J stated that access to the court is a
constitutional right.
6. ministers and public officers at all levels must exercise the powers conferred on
them reasonably, in good faith, for the purpose for which the powers were conferred
and without exceeding the limit of such powers. (Judicial review)
This is the core of administrative law. The remedy of judicial review is available to
challenge the actions of ministers and other public bodies where they have acted
outside unfairly or unreasonably. Decision making can be challenged if there is a
bias or individuals are not given the rights to a fair hearing.
7. adjudicative procedures provided by the state should be fair.
8. rule of law requires compliance by the state with its obligations in international law
as in national laws.
Lord Bingham’s eight sub-rules of the rule of law have been very influential. Essentially, he
has combined features of the “content-free” and “content-rich” interpretations with a
particular feature being the protection of human rights.
Interpretations of the Rule of Law
There is a controversy regarding what should be included within the idea of the rule of law.
Content Free Interpretation
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