Public Law (Rule of Law)

Q. Does the doctrine of Rule of Law have a sufficiently certain meaning to be a useful guiding principle
of UK constitutional law.

Ans. One of the most main and fundamental concepts of any democratic country’s constitutional law is
the doctrine of Rule of Law. According to this doctrine, it is the law which is supreme and that everyone
is equal in the eyes of law be it the prime minister of a country or a normal civilian, both would be
treated equally by law. Therefore, it would not be wrong to assert that rule of law promotes a sense of
justice, security and equality to individuals and assures that no one can set aside the rights of
individuals, be it any other individual or the state itself. Rule of law is therefore the factor which puts the
interests of the individual and the state on the same footing.

Rule of law fails to have one set definition and therefore is subject to different interpretations. One of
the most common definitions of Rule of Law was provided by Lord Bingham in his Eight Sub-Rules of
Rule of Law, which primarily shed light on the aspects that the law should be intelligible, clear and easily
accessible. Law should be applied equally to all and ministers and other public officials are to use their
powers and authority rightfully without abusing them. Bingham’s Eight Sub-rules also put focus on the
fundamental rights of individuals and that these rights are to be accorded adequate protection.
Furthermore, Bingham emphasizes on the importance of fair and cheap adjudicative procedures etc.

Developing on Bingham’s definition of Rule of Law, it is of extreme importance that the laws are
accessible, clear and intelligible so that everyone knows what is right and what is wrong. Furthermore,
accessibility and clarity of law would give awareness to people of their rights and would result in a
thorough understanding of one’s obligations. Difficulty in clarity of law arises when a particular subject
matter is politically controversial or is subject to frequent legislation. Courts also play a vital role in
causing the law to be unclear when different judges at different levels give different judgments rather
than giving a single leading judgment.

With that been said, the essence of this doctrine is that no one faces injustice and since justice is
delivered in courts, it is one’s fundamental constitutional right to have an access to courts.

As stated earlier, having no set definition has led to different interpretations of this doctrine. Starting
with the content-free interpretation, according to this interpretation, a law which passes all the relevant
stages and procedures is deemed to become a law regardless of its content. This interpretation focuses
on the manner or form of the law rather than what is contained in it. According to Joseph Raz, rule of
law means nothing more than that the exercise of law making should be based on certain features such
as the clarity of law and the opportunities that are provided to the subjects to have access to it. In
contrast to this, content-rich interpretation focuses on the content more than the procedures that the
law follows. Ronald Dworkin, advocate of this type of interpretation is of view that rule of law is to
accord protection to certain fundamental rights without which no matter how good the quality of the
law making might be, the rule would still have no eligibility to claim themselves as laws.
Considering both of these interpretation, Bingham’s interpretation of rule of law is a mixture of both of
these interpretations. Bigham’s eight sub rules show the content free interpretation when Bingham
emphasizes that the laws should be clear, accessible and intelligible. The eight sub rules then portray the
content rich interpretation when he talks about the substance of the law by stating that the laws should
accord adequate protection to the fundamental rights of people. However, Bingham’s eight subrules,
although being a mixture of both the interpretations, portray Bingham’s approach to be more towards
the content-rich side.

With that been said, one would now explain Dicey’s approach to rule of Law. Dicey’s approach to rule of
law was quite simple and straightforward and is also known as Dicey’s three part interpretation or three-
limb criteria. According to the first limb of his definition, no one is punishable until and unless they have
made a distinct breach of law. The second limb asserts that everyone is equal in the eyes of law whereas
the last limb states that the general principles of UK constitutional law were formed as a result of judicial
decisions.

This interpretation got a lot of criticism especially by Sir Ivor Jennings who criticized all three lims of
Dicey’s definition. Jenning’s criticized Dicey’s assumption that rule of law was inconsistent with the use
of discretionary powers. He also criticized that Dicey’s second limb of the interpretation ignored the
particular responsibilities that public officials have and certain immunities which certain categories of
individuals e.g. children have. Moreover, Dicey’s third limb completely ignored the role of statutes and
Acts of Parliament in forming the constitution of UK.

Having discussed what rule of law is and different interpretations of different legal analysts, one would
now discuss how each organ of the state protects this doctrine. Starting with the judicial protection of
rule of law, judiciary time and time again tried to uphold the rule of law. This was first seen in Entick c
Carrington which was the earliest case in which the courts demonstrated a willingness to challenge the
power of government while upholding the rights of individuals. Furthermore, Dicey’s second proposition
was illustrated in R v Homeoffice which focused on the personal responsibilities of public officials.
Moreover, in GCHQ case, although the House of Lords suggested that the exercise of prerogative
ministers were subject to judicial review, matters of national security were non-justifiable and therefore
were not open to exercise of jurisdiction by the courts. However, in Miller v PM (2019), courts showed
willingness to stand against the prime minister of UK and decided that his exercise of prerogative was
done in a wrong way. With that been said, newer cases decided under the HRA 1998 indicate that the
courts are willing to stand up for the rights of individuals even when they have to go against the state to
do so, A v Secretary of state for the Home department or even if such rights are against the national
law, R v A, Mendoza v Ghaidan, ex parte Pierson.

Coming to the protection which the parliament accords to the rule of law, Parliament being the
sovereign has the ultimate say as to which laws should be passed and which should not, hence having
complete control over whether the laws passed are in compliance with the rule of law or not. Since the
courts are bound to follow what has been said by the Parliament Lord Hope therefore, in Jackson v A-G
stated that, “the rule of law enforced by the courts is the controlling principle upon which our
constitution is based”.

Lastly, rule of law is also accorded protection by the executive. There is a duty on all the executive
bodies under s.6 of HRA to act in a manner which is compatible with the ECHR. According to s1 of CRA
2005, it is Lord Chancellor’s duty to protect the Rule of Law, however this act fails to explain how to do
so. Moreover this restriction on the role of the Lord Chancellor in upholding rule of law has resulted in
many fingers being raised at the enactment of the Act.

To conclude, Rule of law is a fundamental doctrine of any democratic country which plays a vital role in
the constitutional law of that country, including UK. Rule of law has no set definition and this is the
reason why it has different interpretations to it. In this answer one saw the definitions of Bingham and
Dicey, and the criticism on Dicey’s three limb criteria by Sir Ivor Jennings. Moreover, all three organs of
the state play their parts in according protection to this sacred doctrine. Judiciary has time and time
again stepped in to uphold individual rights even when it had to stand against the state or the national
law of the land as was seen in A v Secretary of State for the Home department and R v A, Mendoza v
Ghaidan, exparte Pierson. Parliament being the sovereign has the ultimate say and hence has the
authority to preserve rule of law by passing laws in compliance with it, or vice versa. The role of
executive in protecting rule of law was restricted when even though the CRA 2005 has stated that Lord
Chancellor has a duty to preserve rule of law, the act fails to tell how. Regardless, all of this shows the
willingness of UK to protect and preserve this doctrine and that although there may be gray areas in this
doctrine, its principles are understandable and comprehensible.