What is the rule of law?
The rule of law is a fundamental doctrine by which every individual must obey and submit to the law, and not arbitrary action by other people of groups. In essence, no one is above the law. The United Kingdom does not have a written constitution. The rule of law, along with Parliamentary Sovereignty and court rulings, is fundamentally the defining principle of our ‘unwritten constitution’.
The rule of law comprises a number of fundamental principles and values.
The principle of legal certainty means that all laws enacted in the UK must be applied in a precise and predictable manner. This means when legislation is passed to convey a particular purpose, this purpose is carried out within the law. Everyone must be able to have their conduct regulated in a manner that is certain.
Therefore, the laws under which someone is convicted and punished should be passed in the correct legal manner – and that a person’s guilt should only be established through the ordinary trial process.
The rule of law requires that every case which is alike should be treated the same. Each citizen has the right to be protected from unjust discrimination from the state: the state cannot say that one person is below or above another in law, regardless of their rank or status. The law also states that a person cannot be treated unfairly by the state due to their ethnic, sexual or religious views.
AV Dicey, who first outlined the rule of law and parliamentary sovereignty, believed that equality before the law was extremely important – that officials should be dealt with by the same court as the ordinary citizen, demonstrating to the general masses that the government was not being unjustly lenient on an official.
All laws and procedures must be freely available to each citizen, and laws which are written down must also be legible to ensure clarity, and prevent unfair discrimination and enforcement. The rule of law also means that the law must be understandable, and the terminology must not be such that a person cannot understand it; nor should legislation be too ambiguous that the reason for its enactment be lost.
The rule of law requires that laws must not be retrospective: a person cannot be tried for an offence if the conduct or behaviour was not an offence when the person committed it. However, this aspect of the rule of law is being watered down, with some legislation having retrospective effect. This means some laws can effectively be broken – before they have even come into force. Two examples are: under the War Crimes Act 1991, and some laws relating to taxation.
Due process means a person will be imprisoned, or otherwise punished, if there is substantial and sufficient evidence of their guilt. Due process is particularly concerned with people receiving a fair trial rather than proving their guilt. If a person’s liberty is taken away from them and the courts cannot demonstrate their guilt by evidence, then they may be entitled to be awarded damages for the loss of their personal liberty.
A notable case that purported to establish the rule of law in the UK was the case of Entick v Carrington (1765) 19 St Tr 1030. This case showed that the police must show lawful authority (a power conferred on them by law) to enter a person’s private property and seize personal property. Here, police officers went into Entick’s property and seized personal papers without having a warrant, leading to his arrest and loss of his personal liberty. A fundamental value under the rule of law is that a person cannot lose their personal liberty unless it can be proved that they broke the law.
Lord Neuberger speech
Lord Neuberger, the President of the UK Supreme Court, gave an important speech in 2013 which was particularly noteworthy for his comments on the rule of law. His comments include:
“At its most basic, the expression [the rule of law] connotes a system under which the relationship between the government and citizens, and between citizen and citizen, is governed by laws which are followed and applied. That is rule by law, but the rule of law requires more than that. First, the laws must be freely accessible: that means as available and as understandable as possible. Secondly, the laws must satisfy certain requirements; they must enforce law and order in an effective way while ensuring due process, they must accord citizens their fundamental rights against the state, and they must regulate relationships between citizens in a just way. Thirdly, the laws must be enforceable: unless a right to due process in criminal proceedings, a right to protection against abuses or excesses of the state, or a right against another citizen, is enforceable, it might as well not exist …”
“The rule of law requires that any persons with a bona fide reasonable legal claim must have an effective means of having that claim considered, and, if it is justified, being satisfied, and that any persons facing a claim must have an effective means of defending themselves. And the rule of law also requires that, save to the extent that it would involve a denial of justice, the determination of any such claim is carried out in public. So citizens must have access to the courts to have their claims, and their defences, determined by judges in public according to the law …”
“Courts exist to resolve disputes, and also to vindicate rights – and to do so in public. Thus, criminal trials cannot be held behind closed doors. Even where the defendant pleads guilty in a criminal trial, the public has the right to know what happened. And where national or local government has overreached itself or treated someone unfairly, the public interest often requires it to be held to account in court in public.”
Lord Neuberger said that access to justice “has a number of components. First, a competent and impartial judiciary; secondly, accessible courts; thirdly, properly administered courts; fourthly, a competent and honest legal profession; fifthly, an effective procedure for getting a case before the court; sixthly, an effective legal process; seventhly effective execution; eighthly, affordable justice.”