Nature of the Rule of Law
What is the rule of law?
The rule of law means that it is desirable to be governed by rules rather than by the discretion of rulers. This entails an independent body, a court, to settle disputes and peacefully restrain those in power from imposing their personal wishes on us.
This version requires laws to be assessed and applied according to basic values of freedom and justice (or whatever the courts considers to be sufficiently important).
How is the rule of law a necessary foundation of democracy?
By ensuring that officials keep within the powers given to them by the people and treat people equally, the rule of law is said to be both the servant and the policeman of democracy (Lady Hale).
Criticisms of the Rule of Law
1. The desire for certainty and dignity which rules embody can cause injustice. For example, the wealthy can take advantage of the law more effectively than the poor since they can afford better lawyers. Thus the rule of law is said to encourage the rich and powerful to harass people who cannot fight back (Horowitz, 1977)
2. The rule of law could be regarded as mechanical and cruel, allowing officials to hide behind rules to avoid personal responsibility, ignoring sentiments such as compassion, mercy and common sense in favour of ruthless logic.
3. Although the courts are reluctant to surrender their jurisdiction they also refrain from interfering in matters of ‘high policy’. R (Corner House Research) v Director of the Serious Fraud Office 
The rule of law is not the supreme value and may be outweighed by other factors. For example, police do not have to prosecute everyone; the Inland Revenue may release a taxpayer from a tax burden. Perhaps most importantly, the right of Parliament to govern its own affairs and exclude the courts is an exception to the rule of law.
Practical Application of the Rule of Law
When does the rule of law apply?
The rule of law only directly applies where the courts are involved which is a relatively small part of constitutional activity, albeit an important one focusing as it does on individual rights. However, the indirect influence of the courts in promoting public values may be more substantial.
How may the rule of law may have a political effect?
In restraining Parliament from enacting drastic legislation, for example, interfering with the courts. E.g. the Asylum and Immigration Bill [2003-4] which contained a clause excluding judicial review from most asylum cases. A robust challenge led by the law lords led to the government dropping the clause. Recent anti-terrorism powers have been limited to some extent by rule of law considerations. However, challenges by asylum seekers and other immigrants are restricted and other aspects of the rule of law have been weakened by government intervention.
Versions of the Rule of Law (Core)
What is it?
Basic rule of law
Means government by law in the form of general rules as opposed to the discretion of the ruler
What does it require?
It requires that the rules are validly made and applied
It doesn't specifiy their conent
What does it assume?
It assumes general rules, even those made by a tyrant, are better than government by the unpredictable whim of a ruler, even a kind one.
What does it imply?
It implies equality in the sense that everyone who falls within a given law must be treated the same under it and government must respect its own laws.
Versions of the Rule of Law (Amplified)
What does it claim?
The amplified rule of law claims that certain principles relating to fairness and justice are inherent in the notion of law itself as a guide to human conduct and that these moderate bad laws, for example a requirement that laws be announced clearly in advance and be applied by independent courts. It is not claimed that these principles cannot be overridden by other factors.
The amplified rule of law is primarily procedural. It could conflict with the core rule of law, for example, a rule which allows a witness in court special protection.
Versions of the Rule of Law (Extended)
What does it claim?
It claims that law encapsulates the overarching political values or general moral principles of the community –assumed to be liberal- such as freedom of expression and non-discrimination.
It claims also to link law with republican ideas of equal citizenship.
In as much as this version relies upon vague and contestable concepts, it also conflicts with the core rule of law.
It is often claimed that the flexibility of this version of the rule of law allows the courts to respond to changing values of society. This presupposes that courts are well placed to understand these.
Craig (1997) Formal/Substantive
Formal version: centres on the shape and application of the law, whether it has been properly made, whether it is clear and fairly applied (thus reflecting the core and amplified versions). There should be independent courts to interpret and apply the law, which should apply equally to those who fall within it. Without independent courts and equality the notion of rules is meaningless.
Substantive version: opens out to the content of the law, whether it is fair and just and reflects the values of society. Thus it includes the extended version. The danger of a broad approach is of course that it could reduce the rule of law to a discussion of whether the particular commentator likes the law in question.
The Core Rule of Law and Freedom
How does the core rule support freedom?
The core rule of law may support freedom in the sense that outside the limits of a rule of law we know that we are free from interference by officials.
How is this limited?
However this is of little benefit if the lawmaker can make laws that drastically curtail freedom such as laws restricting political activity. The content of the law is equally important whether it actually safeguards freedom.
Hayek – freedom = absence of arbitrary restraint, not all restraint. This assumes that laws are made as a result of a rational process with which all would agree. In this sense, by obeying rational laws we are apparently exercising freedom since as rational creatures we are ‘obeying laws that we have made ourselves’ (Kant).
Dicey - Absolute supremacy of regular law
The absolute supremacy/predominance of regular law
No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts.
Firstly, no official can interfere with individual rights without the backing of a specific law. Officials have no special powers merely because they are agents of the state.
Secondly, government should not have wide discretionary powers. Parliament gives wide powers to officials to make discretionary decisions about the provision of public services. These frequently impact the rights of individuals (e.g land use planning decisions). Dicey did not rule out all discretionary powers but only wide arbitrary or discretionary powers of constraint. He insisted on limits to and controls over the exercise of discretion.
Thirdly, Dicey thought that all punishment should be meted out by the ordinary courts. This is no longer the case. Regulators and local authorities for example, have wide powers to issue fines and other civil penalties with only limited rights of appeal to ordinary courts.
Dicey - Equality before the law
Dicey meant that nobody, especially government officials, should be immune from the powers of the ordinary courts.
Here every man, whatever his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary courts.
The rule of law requires that any immunities be limited to what is strictly necessary. E.g., Parliament is immune in relation to its internal proceedings.
Dicey’s insistence that the same regular law applies to all does not always work in favour of the citizen and, in view of the enormous expansion in government power since Dicey’s day, has not stood the test of time. It may be desirable to place restrictions on government because its capacity to do harm is often greater than that of the ordinary person.
Dicey: The Constitution is the ‘result’ of the ord
The general principles of the constitution are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the courts.
Dicey believed that the UK Constitution, not being imposed from above as a written constitution, was embedded in the very fabric of society, dealing with concrete situations and backed by practical remedies in the hands of the courts.
According to Dicey this strengthens the constitution since a written constitution may contain grand but vague abstractions and also can more easily be overturned. Moreover, because the common law developed primarily through the medium of private disputes, the constitution has individual rights, as the basic perspective.
Dicey’s version of the rule of law is therefore politically slanted towards the liberal perspective namely that governmental intervention is exceptional and undesirable.
Lord Bingham - Amplified ROL
- Be intelligible and precise enough to guide conduct
- Minimise discretion, recognising that discretion cannot be removed completely
- Apply equally to all unless differences are clearly justified
- Give adequate protection to fundamental human rights (Bingham acknowledged the lack of agreement as to whether this is an appropriate rule of law matter as opposed to a matter of politics)
- Include a machinery for resolving disputes without excessive costs or inordinate delay
- Provide for judicial review requiring decision makers to act reasonably, in good faith, for the purposes for which powers are granted without exceeding the limits of those powers
- Employ fair adjudicative procedurdes
The International Rule of Law
The idea of the rule of law comes under particular stress when there is a clash between different legal regimes, in particular between international and domestic law. International law as such is not automatically part of UK law but international principles can filter into our law by various means (s9.5.1).
Since WW2 there have been several attempts to draw up internationally binding codes of basic human rights and to promote liberal values under the banner of the rule of law. However such concepts are vague and are applied in different ways in different cultures. In order to command support from as many nations as possible treaties are often written in cloudy language so as to avoid clear commitments.