Lecture notes
Rule of Law
Notes which combine the BPP study notes, lectures and points to note from tutorials. Takes you through the steps to answer a rule of law question in an exam.
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CON & AD LAW: RULE OF LAW1) Sample paper Q: ‘…it remains [the case] to this day that there are some [areas] of executive
responsibility…that are reserved by our law for the responsibility, discretion, and political accountability
of the executive government. Judges who appeal to the Rule of Law to [ignore] this legal truth about our
constitution […] are setting aside the Rule of Law, as well as [encroaching] on responsibilities which
judicial power is ill fitted to discharge.’ John Finnis, Judicial Power: Past, Present and Future, 2015
Critically evaluate whether the judiciary’s attempts to uphold the rule of law undermine the UK’s
separation of powers.
2) Sample paper Q: ‘The more power that a government has, the more likely it is that there will be abuses
and excesses which result in injustice to citizens, and the more important ... [is] the rule of law.’ Lord
Neuberger, Justice in an Age of Austerity, Tom Sargant Memorial Lecture 2013. In light of the above
statement, critically discuss the extent to which the judiciary is able to uphold the rule of law.
3) Consolidation Q: The rule of law is a crucial stand in the constitutional tapestry for the protection of
liberty: it excludes arbitrary or discriminatory action by the powerful against the powerless by erecting
the general law as a bulwark or barrier between the two. Critically analyse this statement with reference
to relevant case law.
Preliminary Points
- In the UK, the rule of law has arguably become a more significant and constitutionally important
concept as illustrated by direct reference to it as a 'constitutional principle (of rule of law)' in the
Constitutional Reform Act 2005.
- There is no universally accepted definition of what is meant by the 'rule of law'. Instead, it is left to
the judges to interpret what the term means in the context of each case (Corner House Research)
- The rule of law is the principle that those exercising a governmental function should not be able to
exercise power arbitrarily, but rather have a legitimate foundation & be subject to legal controls;
Professor De Smith 1959
- Adherence to the rule of law is necessary in ensuring that individual rights are protected from erosion or
interference by those governing the state
- Political theory of rule of law goes back hundreds of years
• 'It is better for the law to rule than one of the citizens ... so even the guardians of the laws are
obeying the laws' Aristotle 350BC;
• '… a government of laws not of men ' John Adams (1780)
- Importance of rule of law illustrated in: R (Jackson) v Attorney General: Jackson challenged the
validity of the passing of the Hunting Act; it was enacted through the use of the procedural setup under
the Parliament Act 1949. C argued that the Parliament Act 1949 was not in itself validly enacted and
hence any Acts passed under it were similarly enacted invalidly. This argument was based on their
interpretation of the Parliament Act 1911 which limited the powers of the House of Lords to block
legislation passed by the House of Commons, following a political impasse in the preceding 2 years.
According to the 1911 Act, a bill rejected by the Lords in three sessions could become law, provided
that two years lapsed between the Second Reading and the Final Approval. The 1911 Act was
amended in 1949 in order to reduce the delaying power further, a one year delay. The Parliament Act
1949 became the law using the Parliament Act 1911 procedure. Lord Hope of Craighead: ‘the rule of
law enforced by the courts is the ultimate controlling factor on which our constitution is based’ not
sovereignty. Parliament should not be able to do everything they wish; ‘parliamentary sovereignty is no
longer, if it ever was, absolute… It is no longer right to say that its freedom to legislate admits of no
qualification whatsoever’
, CON & AD LAW: RULE OF LAW
Rule of Law theories
Dicey (1885): Rule of law has three key elements; - (slightly outdated)
- The supremacy of regular law over arbitrary power: It is only in the courts that a man can be
punished for a breach of law and only the courts can decide if he breached the law. Further, the
government shouldn’t be given too much discretionary power because that would end up being arbitrary
power. This is an outdated theory in some respects because government has a very wide
discretionary power, there are non judicial governing bodies set up to administer on that power –
necessary due to the wide range of power that the government has.
- Equality before the law: Everyone should be equal under the law; there are some exceptions to this
e.g. the Queen is above the law in matters of criminal liability
- No higher law other than the rights of individuals as determined through the courts: decisions of
the courts establish constitutional principles not decisions of legislature. Rule of law = the rights and
duties of citizens were to be found primarily in the common law as a result of cases brought before the
courts. A basic principle of the constitution used to be that rights were defined negatively i.e.
residual rights: individuals are free to do anything that was not prohibited. This is no longer true
– today, fundamental rights and principles of the ROL can’t be considered without looking at the
effect of the ECA 1972 and HRA 1998
Formal vs. Substantive
Since Dicey we have had developed thinkers setting out more developed ideas on the rule of law. There
are two broad schools of thought among writers on the rule of law:
- Formal view of the rule of law = Joseph Raz; based on procedural rule of law; laws must adhere to
certain procedural requirements. The rule of law controls and limits the exercise of governmental and
public power and the actions of state officials which impacts on the individual. State officials held to be
accountable for their actions – when they interfere with individual freedoms, they are required to justify
in law their actions. Thus this is a procedural mechanism which ensures government and its officials act
under the law. Very respected theory but it leaves open the question of whether or not law is fair or just.
Some people have argued that the formal rule of law is inadequate e.g. South Africa under the
apartheid regime or Germany under Nazi regime where laws were passed but they abused citizens
rights and therefore even though they satisfied formal rule of law, they didn’t satisfy substantive rule of
law which guarantees justice and fairness
- According to Raz (formal view), law should satisfy certain principles:
• Relatively stable; predictable, general, open and clear (citizens should know what the laws are and
understand when an action they take may give rise to criminal liability)
• Law should guarantee judicial independence
Lord Bingham (2010) ascribes to a number of the points made by Dicey, but develops the theory of the
rule of law in a more modern (more applicable) and substantive (fairness) direction. ROL can’t just
be based on procedural safeguards, as it says nothing about fundamental rights. He describes eight sub-
rules when defining the conception of the rule of law:
- The law should be accessible, clear and predictable (echoing the formal theory)
- Legal issues should ordinarily be resolved through legal processes and not through exercise of
(administrative) discretion (echoes of Dicey)
- The law should apply equally to all (echoes of Dicey)
- The law should afford adequate protection for human rights (differs from formal school and Dicey);
believes that the rule of law should contain some internal morality which ensures protection for HRs
- There should be access to justice in the courts without inordinate delay or expense
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