Rule of Law
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Two fundamental constitutional principles
The Rule of law (RoL) and the Separation of Powers (SoP)
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What are Principles?
Principles are not ‘laws’, although legal rules may give them effect.
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What are Principles useful for?
- identify the aims/goals of constitutional systems;
- help design and reform constitutional systems;
- assess existing constitutional arrangements
- help design and reform constitutional systems;
- assess existing constitutional arrangements
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Provisions made by Constitutional Reform Act 2005
i) modified the office of Lord Chancellor;
ii) established a Supreme Court of the United Kingdom
iii) abolished the appellate jurisdiction of the House of Lords
ii) established a Supreme Court of the United Kingdom
iii) abolished the appellate jurisdiction of the House of Lords
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Section 1, The rule of law
This Act does not adversely affect— a)the existing constitutional principle of the rule of law
*The Act did not, however, define the ‘rule of law’ – and this was purposeful
*The Act did not, however, define the ‘rule of law’ – and this was purposeful
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Definition of Rule of Law
(Lord Bingham)
(Lord Bingham)
the core of the principle is all persons and
authorities within the state, whether public or private, be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts
authorities within the state, whether public or private, be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts
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Lord Bingham’s 8 ‘sub-rules’ (1-2)
1) Law must be accessible, 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
2) Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion
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Lord Bingham’s 8 ‘sub-rules’ (3-4)
3) Law should apply equally to all (save to the extent that objective differences require differentiation)
4) The law must afford adequate protection of fundamental rights.
4) The law must afford adequate protection of fundamental rights.
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Lord Bingham’s 8 ‘sub-rules’ (5)
Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly and for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably.
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Lord Bingham’s 8 ‘sub-rules’ (6-7)
6) Means must be provided for resolving civil disputes without prohibitive cost or undue delay 11
7) Adjudicative procedures provided by the state should be fair.
7) Adjudicative procedures provided by the state should be fair.
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Lord Bingham’s 8 ‘sub-rules’ (8)
The rule of law requires compliance by the state with its obligations in international as in national law.
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substantive conception of the rule of law
it does not distinguish between the rule of
law and substantive justice; on the
contrary it requires, as part of the
ideal of law, that the rules in the book
capture and enforce moral rights
law and substantive justice; on the
contrary it requires, as part of the
ideal of law, that the rules in the book
capture and enforce moral rights
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How do courts protect the rule of law?
•‘Articulating common law fundamental rights’
• In fact, HRA was an answer to criticism that courts (common law) not sufficient to protect fundamental rights
• ‘Applying the law of tort against public office holders’
• In fact, HRA was an answer to criticism that courts (common law) not sufficient to protect fundamental rights
• ‘Applying the law of tort against public office holders’
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How do courts protect the rule of law? 2
• ‘Courts will strike down government action that is inconsistent with the rule of law’
• ‘Courts try, whenever possible, to give legislation meaning that is compatible with the rule of law’
• ‘Courts try, whenever possible, to give legislation meaning that is compatible with the rule of law’
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How do courts protect the rule of law? 3
‘Courts will generally hold legislation (other than Acts of Parliament) to be invalid if it cannot be interpreted compatibly with the rule of law’ (emphasis added)
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Important note 1
The enactment of the Human Rights Act 1998 has considerably strengthened the role of the judiciary, and is clearly a step towards a more substantive understanding of the rule of law, despite the limitations especially of section 4
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Important note 2
In the UK’s uncodified constitution (lack of a document ‘to serve as a staring point in identifying fundamental constitutional values’) the rule of law ‘assumes greater importance’
Elliott and Thomas (2017) p. 71
Elliott and Thomas (2017) p. 71
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Parliament and the rule of law
Parliament can adopt legislation establishing of reinforcing elements of the rule of law
• due to parliamentary sovereignty, it is possible for Parliament to adopt legislation contrary to the rule of law (or even in response to a particular judgment)
• due to parliamentary sovereignty, it is possible for Parliament to adopt legislation contrary to the rule of law (or even in response to a particular judgment)
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Parliament and the rule of law 2
Unless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the rule of law. And the rule of law enforces minimum standards of fairness, both substantive and procedural.
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Government: The Lord Chancellor
Reduced powers after the Constitutional Reform Act 2005 • Secretary of State for Justice • Special responsibility for compliance with rule of law principles • Debate on whether legal background is essential (see further Le
Sueur et al 2019, pp. 114-120)
Sueur et al 2019, pp. 114-120)
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Government: The Lord Chancellor 2
But of course government/ administration can also act against the rule of law – such action will be judicially reviewable, further details in the spring term
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Other cards in this set
Card 2
Front
What are Principles?
Back
Principles are not ‘laws’, although legal rules may give them effect.
Card 3
Front
What are Principles useful for?
Back
Card 4
Front
Provisions made by Constitutional Reform Act 2005
Back
Card 5
Front
Section 1, The rule of law
Back
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