Rule of Law

  • Created by: Hannah
  • Created on: 30-03-13 21:34


The rule of law is a fundamental principle in our constitution. Put simply, it means that the state should govern its citizens in accordance with the rules that have been agreed upon.

A constitution is therefore a set of rules which details a country’s system of government, often codified as a written document. It will define fundamental political policies establishing the structure, procedures, powers and duties of the government. It will generally also guarantee certain rights of the people. Essentially, it sets out broad principles about who can make the law and how.

Britain is different to other Western democracies in that it has an unwritten constitution, meaning that it is not found in a specific document. Nonetheless, Britain does have an equivalent constitution which is a product of historical development, laying down rules about who governs, the powers they have, and how that power is passed on or transferred. Sources that contribute to the constitution include: acts of parliament, judicial decisions and conventions/customs.

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For a written constitution


  • It would make the constitutional position clearer.
  • More accessible for citizens.
  • Greater protection of rights and liberties if the constitution were entrenched as it could only be altered after first satisfying a special procedure permitting change.


  • An unwritten constitution is part of our heritage.
  • An unwritten constitution allows for flexibility.
  • A written constitution would be difficult to change.
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 Magna Carta 1215: marked the first attempt to set out constitutional powers and gave rights and freedoms to subjects.

 Act of Settlement 1701: provision of judicial independence.

 During the 19th and 20th Centuries, voting rights and democracy were extended.

European Communities Act 1972: UK joined the EU in 1973 and is therefore subject to EU legislation.

Parliament Acts 1911 and 1949: confirmation of HoC superior power when law-making.

Human Rights Act 1998: activation of ECHR into the English Legal System (1998 also saw devolution of powers to Scotland, Wales and Northern Ireland)

Constitutional Reform Act 2005: altered the position of the Lord Chancellor, created the Supreme Court, and introduced the Judicial Appointments Commission.

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 Magna Carta 1215: marked the first attempt to set out constitutional powers and gave rights and freedoms to subjects.

 Act of Settlement 1701: provision of judicial independence.

 During the 19th and 20th Centuries, voting rights and democracy were extended.

European Communities Act 1972: UK joined the EU in 1973 and is therefore subject to EU legislation.

Parliament Acts 1911 and 1949: confirmation of HoC superior power when law-making.

Human Rights Act 1998: activation of ECHR into the English Legal System (1998 also saw devolution of powers to Scotland, Wales and Northern Ireland)

Constitutional Reform Act 2005: altered the position of the Lord Chancellor, created the Supreme Court, and introduced the Judicial Appointments Commission.

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Separation of powers

  • o THE EXECUTIVE – Government – proposers.
  • o THE LEGISLATURE – Parliament – creators.
  • o THE JUDICIARY – Judges – enforcers.

The Separation of powers theory is usually attributed to Montesquieu  when he suggested that democracy demands that no person serve in more than one branch of state, in order to avoid dictatorship.

The UK’s system is described as having a ‘fusion’ of powers, whereby certain roles straddle different branches. Members of the executive (MPs) also sit in the legislature in the House of Commons and are answerable to it, whilst members of the judiciary (House of Lord judges) used to sit in the legislature, in the legislative House of Lords. (Labour Government created the new Supreme Court [October 2009], under the Constitutional Reform Act 2005.)

The Constitutional Reform Act 2005 also altered the position of the Lord Chancellor in order to complement Montesquieu’s theory. The Lord Chief Justice (LCJ) is now the head of the independent judiciary. Additionally, the Constitutional Reform Act 2005 created the Judicial Appointments Commission to take on the responsibility for appointing the independent judiciary.

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Parliamentary Sovereignty

Of the three institutional powers, the most supreme law making body is PARLIAMENT, as enshrined in AV Dicey’s Parliamentary Sovereignty doctrine. Law passed by Parliament, in accordance with set rules and procedure, must be applied above all other sources of law by the courts as its members are democratically elected.

This has been taken to mean:

  • 1. Parliament can make law on any subject it chooses (even retrospective laws: WAR CRIMES ACT 1991).
  • 2. No Parliament can bind its successors.
  • 3. No body (including the courts) can question the validity of Parliament’s enactments.

Some reinforcements of this final point can be seen in the following examples:

  • o Jackson & Others [2005] challenged the validity of the Parliament Act 1949, and therefore also the Hunting Act 2004, but did not succeed.
  • o AV Dicey: “The judges know nothing about any will of the people except insofar as that will is expressed by an Act of Parliament.”
  • o Edinburgh and Dalkieth Railway v Wauchope [1842]: “All that the Court of Justice can do is to look to the Parliamentary roll.”
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Note some limitations:

  •  Membership of European Union: EU law takes supremacy in a conflict.
  •  Human Rights Act 1998: laws should be compatible with convention rights and judges should strive to interpret them in a compatible manner (s.3 HRA 1998). Where incompatibilities arise, the judiciary can issue a s.4 HRA 1998 declaration of incompatibility, but as this does not allow judges to strike out laws this has little practical impact on parliamentary sovereignty as it can be ignored by Parliament. However, in issuing a DI, judges are fulfilling the will of parliament.
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Rule of Law

It is universally agreed amongst democratic states that the rule of law is a vital element in a free democracy. Although not enshrined in a written constitution, it is jealously guarded by our judiciary, and has been given legislative support in the Constitutional Reform Act 2005 s.1 which states: “...the Act does not affect...the existing constitutional principle of the rule of law.”

A key starting point here is to note that there are differing opinions on what, precisely, is meant by “the rule of law”. For example, it has been suggested that it is: “[t]he name commonly given to the state of affairs in which a legal system is legally in good shape”-John Finnis 1980

A constitutional law textbook summarises it as meaning: “that all power in a community should be kept subject to general rules and both government and governed should keep to those rules.”- John Alder [2007]

And LORD BINGHAM – a leading authority on the rule of law in recent times – has suggested that it should be taken to mean 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 prospectively1 promulgated2 and publicly administered in the courts”

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Rule of Law

The rule of law is a symbolic ideal dating back to ARISTOTLE in the 4th Century BC. It is required in order to have a democracy. The idea that no-one was above the law was summarised by THOMAS PAINE, an 18th Century British revolutionary:

“For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other.” [1776]

19th Century theorist, AV DICEY, defended Britain’s system of an unwritten constitution and popularised the concept. The rule of law is, therefore, a tool against which we can measure, comment on and sometimes criticise how our State operates.

  • In Dicey’s book “Introduction to the Study of Law of the Constitution” (1885) he stated that the Rule of Law has three main principles:
  • Nobody should be punished by the state unless they have broken a law.
  • The same laws should apply to officials of the state as the ordinary people.
  • The rights of the individual are protected by the rulings of judges.
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Rule of Law

Therefore, the Rule of Law clearly places limits on the exercise of powers by the Government and protects the rights of citizens. It emphasises the need for keeping the institutions and their processes within reasonable limits in order to avoid a totalitarian regime (oppressive / dictatorship), and provides for a system of checks and balances which check on the powers exercised by the Government in its decision making.

In Nazi Germany, for example, the evils of the system occurred because there were NO CHECKS OR BALANCES over all the powers of the State. The judiciary lacked the necessary independence and the executive controlled the legislature. The practical consequences were horrendous.

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Critique of Dicey's Rule of Law

[1971] Essential component of RoL = absence of state exercise of arbitrary power. Thought Parliamentary Sovereignty had weakened RoL as legislation has to be followed: provided the State’s actions are authorised by legislation, then any act in accordance with legislation is lawful.-FA Von Hayek.

[1970s] Saw RoL as a way of controlling, rather than preventing, the exercise of discretion by the state, and therefore viewed it in a negative way. He felt that the key point to emerge from the RoL was that the law must be capable of guiding an individual’s behaviour.- Joseph Raz

[1970s] Thought that, although Dicey’s ideas were “very influential for two generations… they no longer warrant detailed analysis.”- SA De Smith

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Critique of Dicey's Rule of Law

However, whilst Dicey’s ideas did go out of fashion for a time, they have now come back into favour, particularly with senior members of the judiciary strictly following the Constitutional Reform Act 2005.


Perhaps the most famous case on the rule of law is that of Entick v Carrington [1765]. Entick sued the King’s messengers who, “with force and arms”, broke into his property and seized his private papers. Under a “general warrant” issued by the Secretary of State, they were searching for allegedly disloyal material. The defendant could not point to any statutory or common law authority for issuing general search warrants; therefore they had no valid law authorising their entry onto private property and it amounted to trespass.

This judgment established the limits of executive power; that an officer of the state could only act lawfully in a manner prescribed by law.

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Operation of rule of law

The English and Welsh legal system attempts to meet the requirements of the rule of law and is largely successful. There are, however, concerns in some areas. 

No punishment without law

Today, the Police and Criminal Evidence Act 1984 (PACE) lays down the rules under which the police may enter private property without a warrant.-NO

Additionally, vast discretion is given to MI5 and MI6 to enter private property under the REGULATION OF INVESTIGATORY POWERS ACT 2000 (RIPA). These discretionary powers are often virtually unreviewable by the courts and thus technically in line with the rule of law.- NO

During situations of crisis, such as terrorism, much wider powers tend to be given by law to the executive and thus the rule of law is ‘stretched’. For example, the ANTI TERRORISM CRIME AND SECURITY ACT 2001 allowed for indefinite detention at Belmarsh prison without charge of non-UK nationals suspected of terrorism (however, A and others v Secretary of State for the Home Department [2004] held this to be illegal and a DI was issued under s.4 HRA 1998).-NO

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Operation of rule of law

Police can arrest a person upon reasonable suspicion of having committed an offence under s.24 PACE 1984 and then hold them for up to 96 hours in police custody.- YES reasonable suspicion

Claims have been made regarding the involvement of UK Security Services in extraordinary rendition* and torture in relation to BinYam Mohammed.NO

Ministers and other executive bodies are often given wide discretionary powers by primary legislation to create statutory instruments – e.g. under the LEGISLATIVE AND REGULATORY REFORM ACT 2006.- NO

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Rule of law- no punishment without law comment

Whilst there can be no punishment without there first being a law, where the courts have scorned the Government for their actions, this can easily be reversed by a new legislative proposal to the contrary. When enacted, this will be protected by parliamentary sovereignty and will therefore compel judicial adherence.

This happened in the summer of 2011 when rules relating to the “continued ticking” of the detention clock (relating to how long police can hold a suspect at a police station) were radically shaken in:

Hookway [2011] A district judge at Salford Magistrates' Court refused to grant a routine warrant to Greater Manchester Police to extend Mr Hookway's detention as it was decided that time spent on bail counted towards the 96 hour limit of pre-charge detention.

The police force sought judicial review, but this was upheld by the High Court. The force were prepared to take their case to the Supreme Court but government ministers said that they could not wait for this and so responded with emergency legislation to ‘reconfirm’ that police could continue to operate on the same basis regarding bail that they have done for the last 25 years. Soon after, the Police (Detention and Bail) Act 2011 was passed.

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Equality before the law

  • THE QUEEN: There is a presumption that the Crown is not bound unless a statute expressly says so, such as the Hunting Act 2004.-NO
  • o SERVANTS OF THE CROWN: Government Departments and other executive bodies and institutions do not enjoy the same immunity.-YES
  • o CHILDREN: No criminal liability for those under 10 years old.-NO
  • o FOREIGN DIPLOMATS: Diplomatic immunity is a policy held between governments that ensure diplomats are given safe passage in the host country. If X has committed a crime in their home nation, s/he will not be prosecuted here in the UK, although they can be expelled/extradited – as in Pinochet.-NO
  • Often, immunity will depend on the political relationship with that country. Whilst performing a diplomatic function, the level of immunity granted is dependent upon rank and ranges from immunity from criminal and civil to immunity for official acts only. A waiver can be requested in order to arrest or bring charges against someone. Even if immunity is not waived, the Foreign and Commonwealth Office may ask for the withdrawal of the individual and their family or declare them persona non gratae. Issues relating to diplomatic immunity were discussed in summer 2012 when it transpired that Julian Assange had sought asylum in the Ecuadorian Embassy in London.
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Equality before the law

o MPs: MPs enjoy protection from defamation in Parliament (HC/HL) as what they say cannot be used against them.  Liberal Democrat MP John Hemming used parliamentary privilege to name Ryan Giggs as the ‘married footballer’ that had taken out an injunction over his alleged affair with Imogen Thomas. He said "Mr Speaker, with about 75,000 people having named Ryan Giggs, it is obviously impracticable to imprison them all."

MPs also have parliamentary privilege allowing them to regulate their own affairs (e.g. expenses). This was why MPs were claiming they should not stand trial over the expenses scandal and that Parliament should discipline them. The judges disagreed with this! Whilst MPs have protection from defamation, they are not protected from other areas of law, as Labour MP Eric Joyce has found following his arrest after allegations of assaulting Conservative MP Stuart Andrew in a House of Commons bar on 22nd February 2012. It was announced on 24th February that he has been charged with 3 counts of assault and has been bailed to appear at West London Magistrates court on 7th March. 

Chris Huhne has also been the subject of the media when he pleaded guilty to perverting the course of justice over claims that his ex-wife took speeding points for him over a decade ago, as he was in danger of losing his licence, having already accrued 9 penalty points.

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Equality before the law

o JUDGES: Judges have immunity during legal proceedings.

Sirros v Moore [1974] Denning: “A judge of a superior court is not liable for anything done by him while he is "acting as a judge," or "doing a judicial act" or "acting judicially" or "in the execution of his office"...."What do all these mean? They are much wider than the expression when he is acting within his jurisdiction. I think [these mean]… that a judge of a superior court is protected when he is acting in the bona fide exercise of his office and under the belief that he has jurisdiction, though he may be mistaken in that belief and may not in truth have any jurisdiction. No matter that his mistake is not one of fact but of law, nevertheless he is protected if he in good faith believes that he has jurisdiction to do what he does."

Sirros v Moore [1974] D appealed to the Crown Court against a magistrate’s recommendation for his deportation. The judge dismissed the appeal and, when he saw D about to walk out of his court, he called upon the police to stop him. Ds claims for damages for assault and false imprisonment failed. Although the judge’s order was unlawful, as D had not been remanded in custody, the judge’s immunity extended even to acts beyond his jurisdiction as long as they were done in good faith.

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Independence of the judiciary

3) THE INDEPENDENCE OF THE JUDICIARY: Dicey’s third principle requires the rights of individuals to be protected by the rulings of judges. For this to happen, they must be independent from the executive. "A judge should value independence above gold, not for his or her own benefit, but because it is of the essence of the rule of law."Lord Phillips 

“The courts will treat with particular suspicion (and might even reject) any attempt to subvert the rule of law by removing governmental action affecting the rights of the individual from all judicial scrutiny.” Lady Hale in Jackson & Others [2005]

As the courts can be asked by citizens to prevent the government from acting outside of their legal powers through the process of JUDICIAL REVIEW in the QBD High Court (ultra vires), judges therefore hold a position of CENTRAL IMPORTANCE in relation to the rule of law and are expected to decide on cases through strict application of the law, without allowing their personal preference or fear or favour of any of the parties to affect the outcome of the case- YES

Independence is therefore of paramount importance; something the HL recognised in Pinochet [1998] when they effectively reheard the case because of the possibility of bias due to links between Lord Hoffman and Amnesty International in the earlier hearing.-YES

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Independence of the judiciary

The difficulty of reconciling the constitutional role of the Lord Chancellor with an independent judiciary was resolved by the Constitutional Reform Act 2005. This Act now promotes stricter adherence to separation of powers and clearly recognises the vital role played by the judiciary in upholding rule of law. The Act effectively abolished the position of Lord Chancellor as head of the judiciary and placed the role of appointing judges in the hands of the LORD CHIEF JUSTICE who is SEPARATE FROM THE EXECUTIVE-YES

Comments have recently been made by the LCJ, Lord Judgeexpressing concerns that these changes have eroded something important in that the judiciary are no longer directly represented in government. He says that 7 years on, it is now “right to take stock and consider whether the two branches of the constitution are yet back in equilibrium.”

The new SUPREME COURT further promotes independent ideals as it provides greater clarity in our constitutional arrangements by further SEPARATING THE JUDICIARY from the LEGISLATURE in removing the Law Lords from sitting in Parliament. This move has enhanced independence of the judges and increased the transparency between the top levels of the UK judicial system and Parliament.-YES

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Independence of the judiciary

The role of judges in upholding the rule of law has been given a new dimension by virtue of the HUMAN RIGHTS ACT 1998. Actions of public authorities must be compatible with the ECHR (s.6 HRA 1998); where incompatible, courts are able to award damages. Since the HRA came into force, judges have had a surge in power in relation to interpreting existing laws. They now have a DUTY to interpret ALL law in a way which is compatible with the broad principles laid down in the ECHR (s.3 HRA 1998).-NO

In addition, judges have a new power to openly declare that an Act of Parliament is incompatible with the ECHR (s.4 HRA 1998 DECLARATION OF INCOMPATIBILITY). Remember: where a DI is issued, it is for Parliament, in line with Parliamentary Sovereignty, to decide whether the law requires amendment. However, a DI, particularly when issued by the Supreme Court, will carry a great deal of weight.-YES

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Independence of the judiciary

In A and Others v Secretary of State for the Home Department [2004] the indefinite detention of non UK nationals at Belmarsh prison under the ANTI TERRORISM CRIME AND SECURITY ACT 2001 was held to breach Arts 5 (liberty), 6 (fair trial) and 14 (discrimination). The HL held their detention contrary to HR on the narrow ground that it was unjustifiable racial discrimination: UK nationals were just as likely to be suspected of terrorism-YES

This led to the passing of the PREVENTION OF TERRORISM ACT 2005 which promoted greater involvement of the judiciary in the granting of control orders in relation to those suspected of terrorism. Following this, however, the control orders themselves were condemned by the courts for being contrary to HR in JJ & Others v Home Office [2007]. In this case a control order, issued by the Secretary of State under s.2 of the Prevention of Terrorism Act 2005, which imposed an 18 hour curfew on the controlled person and closely restricted his social contacts, constituted a deprivation of liberty under Art 5 ECHR. Since the Secretary of State had no power to deprive liberty under the 2005 Act, the order was quashed.

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The efforts of judges to maintain rule of law and protect human rights have led to CLASHES with government, notably with former Prime Minister Tony Blair, and successive Home Secretaries. It could be argued that neither judges nor the HRA 1998 are at fault, but rather the source of any problems lies with an enthusiastic executive who, when it suits, pays only scant (slight) recognition to the rule of law.

Supporters of a written constitution believe that, as society has had its liberties more and more encroached upon by government, the rule of law is more important now than ever. On the other hand, it is agreed, with some justification, that a modern society needs bodies such as MI5 and MI6 simply because there are a tiny number of individuals who wish to subvert (challenge) society and have to be dealt with accordingly. However, it continues to be imperative that the individual should know when state interference is likely and that official action is governed by rules.

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Individuals implicitly accept that we cannot exercise the unbridled freedom enjoyed by Adam in the Garden of Eden, before the creation of Eve, and we accept the constraints imposed by laws properly made because of the benefits which, on balance, they confer. In turn, however, the state must also accept that it may not do all that it has the power to do but only that which laws binding upon it authorise it to do. The rule of law is neither a simple ideal nor an easy one to live up to. We should not abandon it but should continue to use it as a benchmark against which laws on individual freedom are measured.

“Wherever law ends, tyranny begins.” John Locke, Second Treatise of Government 1690

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