3. The Rule of Law

Rule of Law
  • AV Dicey said that the rule of law means three things:
    • the predominance of law in preference to the influence of wide discretionary arbitrary prerogative power which means that a person may liable or punished for a breach of the law but nothing else;
    • everyone is equally subject to the law; and
    • the principles of British constitutional law do not, as in other countries, originate in a higher constitutional code but from the ordinary law dealing with the rights and obligations of private individuals.
  • Lord Bingham based his views about the rule of law on three key assumptions:
    • Everyone should be equally bound by and entitled to the benefit of the law.
    • Laws must be publicly and prospectively published.
    • Laws should be publicly administered in the courts.
  • Lord Bingham stated eight key principles which characterize the rule of law:
  1. The law must be accessible and so far as possible intelligible, clear, and predictable.
  2. Questions of legal right and liability should ordinarily be 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 justify differentiation.
  4. The law must afford adequate protection of fundamental human rights.
  5. Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve.
  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 limits of such powers.
  7. Adjudicative procedures provided by the state should be fair.
  8. The rule of law requires compliance by the state with its obligations in international law, the law which, whether deriving from treaty or international custom and practice, governs the conduct of nations.
Government According to Law
  • The key feature of any legal system based on Dicey’s conception of the rule of law is that government must be conducted according to law.
  • Public bodies exercising statutory bodies must do what the statute requires them to do.
  • The judiciary enforces the law against individuals, institutions, and the executive.
  • Judges cannot enforce the monarch because the monarch can do no wrong, but judges enforce the law against the executive and against the individuals who from time to time represent the executive.
  • A decision to punish an offender by imprisonment may only be made by a court of law.
  • Civil rights must be determined by an independent and impartial judicial system.
  • The executive should not arbitrarily be able to instruct the court to dismiss a claimant’s action either by saying that there is no cause of action without the government’s consent or by issuing a certificate that the action is not to proceed.
  • Judges preserve the rule of law.
The Human Rights Act 1998 and The Rule of Law
  • Because of statutes like the 1998 Act the rule of law had become a more substantive principle: a public decision should be authorized by the words of an enabling statute and public authorities should make decisions which are both reasonable and proportionate to a legitimate claim.
Arbitrary and Wide Discretionary Powers
  • A statutory provision that a public body may do something if/as they see fit or if they reasonably believe something is a subjective discretionary power.
  • Indefinite imprisonment without charge is contrary to the rule of law because it deprives the detained person of the protection given to them by the process of criminal trial.
The Executive vs The Judiciary
The Executive
The Judiciary
Takes primary responsibility for enacting legislation and decision-making.
Makes sure that legislation and ministerial decisions do not overlook legal formalities and the human rights of those adversely affected.
May evaluate and decide upon appropriate measures.
Gives both Parliament and the executive a degree of latitude.

The degree of latitude depends on the nature of the matter being considered, the importance of the human rights in question, and the extent of the encroachment.

The courts will intervene only when it is apparent that, in balancing the various considerations involved, the primary decision-maker must have given insufficient weight to the human rights factor.



Privileges, Immunities, and The Rule of Law

  • Special powers, privileges, and immunities from the ordinary law have been granted by the Parliament, so that it is possible to argue that the principle of equal subjection to the law is undermined.
  • Article 9 Bill of Rights 1689 gives absolute immunity to MPs from actions in the tort of defamation arising out of anything said or done in the course of a parliamentary debate or parliamentary proceeding.

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