A topic which has been mentioned in previous blog posts has been that of the rule of law. The rule of law is a concept difficult of a single definition. It is however, a key component in any civilised and democratic society. The easiest way, and that in which many would describe the rule of law, is by saying it is the principle in which nobody is above the law. This definition unfortunately does not go anywhere near encompassing what the rule of law is or is made up of. The concept of the rule of law dates back to 1885 when Dicey explained the rule of law as being made up of three key components:
- The supremacy of regular law of arbitrary power
- Equality before the law
- The idea of no higher law
Obviously the law and the world has moved on a lot since 1885. The most recent definition of the rule of law have been made by the late Tom Bingham, former Master of the Rolls and Lord Chief Justice. He added to Dicey’s original definition and proposed the rule of law to encompass eight main ideas, all of which will be explored individually:
Accessibility of the law
The law must be accessible, it must be clear and everyone must know what the law is. This is inherently important; if laws could just be made which have a retrospective effect, this would lead to a complete lack of legal certainty. For this reason, law made with a retrospective effect is contrary to the rule of law.
Law, not discretion
This was Dicey’s first limb in his definition. It is the concept that the law is the highest power and it must always be followed. If people are left with discretionary powers, are these not arbitrary powers? Are they not open to abuse? If so they are contrary to the rule of law. The rule of law always encompasses the idea of fairness. What is right, what is just, what is equitable.
The proper exercise of power
This is the idea that powers are given (through the law) are exercised correctly. The classic case example of this principle can be seen in Entick v Carrington (1765). In this case Mr Entick was being investigated by The Crown (effectively the King in 1765) for criminal offences. The King’s servants, Carrington, obtained a warrant to enter and search Mr Entick’s house. The warrant was authorised by The Crown. Mr Entick brought the case to court and sued Carrington for trespass, because there was no legal power at the time for a warrant to be made for such a purpose. The Crown had effectively given themselves the power to enter and search Mr Entick’s house with no legal authority to do so. The Court agreed with this and famously Lord Camden in this case stated “every invasion of private property is trespass”. In this case the rule of law was upheld in the sense that the Court held that The Crown did not have the power to just decide to take an action for which there was not lawful proposition.
The proper exercise of power now also incorporates the whole idea of judicial review which was discussed in last week’s blog.
Fair legal process
This limb includes the right to a fair trial which is now also incorporated into Article 6 of the European Convention on Human Rights. The importance of a fair trial is just as important as having access to a trial. This concept also incorporates the aspect of legal aid for those who cannot afford legal representation. The idea is that an unrepresented litigant may not be able to have a fair trial if they are competing against a party with whom is much better represented. This causes an imbalance and therefore an injustice. The unrepresented litigant is going to stray into dangerous waters not knowing the process of the courts or indeed what the law is and/or what it requires. The fundamental principle that people who cannot afford legal representation are entitled to legal aid is therefore a very important component of the rule of law.
The rule of law has an important relationship with human rights. The Human Rights Act 1998 is the legislation which enshrines the European Convention on Human Rights into our law. The Human Rights Act is made up of many fundamental freedoms in which we more often than not may take for granted. If these were removed it would be negative to society and the values in which a just society is founded upon.
Access to justice
In order for any legal system to be fair and to therefore be of value, it must be open to all. It is no good for people to only be able to have access to the courts if they can afford it, or if they are of a certain race, colour or shoe size. The law must be accessible by anyone who needs to enforce it. The ideas surrounding access to justice overlap here and the whole case for legal aid can be again made.
Equality before the law
This is the idea that everyone is equal before the law and therefore nobody is above the law. The well-known case surrounding this is the case of Re M  1 AC 377. This involved an asylum seeker who came to the UK from the now Democratic Republic of Congo. The test in order to achieve residency status was not met by the individual and as such the individual was to be deported. The individual’s lawyers believed that he was entitled to residence and did meet the legal test for residency. Aware that the individual was due to be deported the following day they made an emergency application for an injunction to prevent deportation. The judge granted this and informed the Home Office. The Home Office decided that they were ‘above the law’ and that injunctions did not apply to them. They proceeded and deported the individual, who was never found again. He was presumably persecuted and killed upon his return, precisely the thing in which his lawyers were trying to prevent. The Court as a result held the Home office in contempt of Court and ruled that injunctions did apply to them, just as they apply to anyone. The Home Office was held not to be ‘above the law’.
Respect for International law
Last but not least is the respect for International law. This is important as it recognises that it is not only our law which is important. In order to live in a world which is increasingly becoming more globalised, international law is extremely important. It is for this reason it is considered as an important part of the rule of law.
Therefore in conclusion and after analysis of all 8 components, some more than others admittedly, it can be seen that the rule of law is not quite such a small concept which is easy to explain or define. It is a concept made up of many components which are all as important as the others. Many overlap and all are intertwined in one way or another. They are all fundamental to the smooth running of a democratic society and they must all be protected at any cost.
LLB (Honours) Student & Aspiring Barrister