The Rule of Law

Beware of treating this as a wishy-washy general idea about acceptable legal behaviour. There are some very specific meanings to the phrase.

Dicey proposed three aspects

(1) No person is punishable except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land
- therefore there should be no 'arbitrary' justice
- behaviour should be prohibited in advance - not after the event
- people we think might have mischievous intent shouldn't be locked up because they might commit a crime (despite the exasperation of certain Home Secretaries that the Courts are reluctant to deport or intern people who aren't convicted of anything, but are clearly evil.)

(2) No person is above the law
- the ordinary law of the land applies to everyone, and as Barnett comments, "there must not only exist a system of courts available locally but the cost of having recourse to the courts must be such that there is real - rather than symbolic - access to the courts. For the law to be attainable, adequate legal advice and assistance must be provided at a cost affordable by all." (Once upon a time....)

(3) the general principles of the constitution are the result of ordinary cases in which rights have been determined.
- Dicey meant that in the UK we don't have special courts for Administrative Law, but the ordinary courts applied the same approach whether they were dealing with bureaucrats or ordinary citizens involved in disputes with other citizens. (Perhaps a bit quaint in this era of judicial review and multi-national corporations.)

NOTE - I've tried to be deliberately provocative - how who you respond to such opinions in an exam question? Reasoned evaluation is the key - and examiners look for it. You can practice by looking at newspaper headlines in the coming week - apply the "Rule of Law" to what the editor or the politician is arguing.

Allen and Thompson deal with the concept in Chapter three of their Cases and Materials on Constitutional and Administrative Law - 10th Edition



There are some useful cases to reflect upon - Prohibitions del Roy (1607); Entick v Carrington (1765)R v IRC ex parte Rossminster Ltd; R v Horseferry Road Magistrates Court ex parte Bennett; Phillips v Eyre; In re M (1993) - worth making brief casenotes on!

There are also some useful questions to consider as you revise.

Do reflect on how the concept of the Rule of Law relates to other constitutional principles.

There's an excellent book on the Rule of Law and related subjects by the late Lord Bingham.

The Rule of Law (republished)

Many books deserve a fulsome recommendation. A very few fall into that rare category of "books every citizen should read". One small book out this year more than exceeds the criteria for inclusion in this limited list [the criteria should be (1) the writer has something VERY important to say AND (2) it is written in plain, readable language]

Lord Bingham of Cornhill ['Tom Bingham' is the name on the book] has been Master of the Rolls (head of England and Wales' civil justice system); Lord Chief Justice (head of the judiciary of England and Wales) and the Senior Law Lord (in the House of Lords Judicial Committee - the highest court in the UK before it became the Supreme Court). When he writes about the law, he knows what he is writing about! (Times' Profile)

"The Rule of Law" [London: Allen Lane, 2010 ISBN 978-1-846-14090-7] is a short, but incredibly powerful and useful book. It explains - in a very readable way - a central concept in English Law. He sets out a history of the idea, then explains what it means. It is no obscure academic principle, but the foundation upon which liberty rests. Every citizen should read this book - because it explains the meaning and importance of the idea - and sets out how easily it can be threatened.

The book is also a superb introduction to English Law. In succinct terms Lord Bingham explains (in a way unrivalled by any textbook I've seen) -

• sources of English Law (chap 3)
• principles of the English legal system (Chap 9)
• Judicial Review (Chap 6)
• Human Rights Law - including key provisions of the European Convention on Human Rights (Chap 7)
• principles of International Law (Chap 10)
• Sovereignty of Parliament (Chap 12)

If you are studying (or about to study) Law - [particularly those subjects traditionally known as 'English Legal System' and 'Constitutional & Administrative Law' (or the Open University's W100, W200, W201, Y166) - this is a book you will find very useful - both for understanding key concepts and for exam revision.
But this is not just a book for law students. Students of politics and history will also find it useful - as indeed (as I've already said a few times) ANY CITIZEN.

Parliamentary Sovereignty

Law students are inducted into the mysteries of "Parliamentary Sovereignty" as part of their Constitutional Law studies. It's a favourite (for those who set them at least!) exam subject. There have been a number of Washminster postings on the subject -

11 Sept 2007

21 June 2009

29 Sept 2009

14 Jan 2010

Key to understanding the topic are -

* Dicey's teachings on Parliamentary Sovereignty
* the challenges that membership of the European Union has for Dicey's traditional view of the doctrine
* how the Human Rights Act 1998 attempts to recognise the doctrine - but how its application (interpretation under s3 widely used, rather than Declaration of Incompatability - s4)

Particular issues to reflect upon

- is the doctrine one of substance or procedure? - Edinburgh and Dalkeith Rly Co v Wauchope (1842) 8 Cl & Fin 710, 8 ER 279, Lee v Bude and Torrington Junction Rly Co (1871) LR 6 CP 576 and BRB v Pickin [1974] AC 765 - all uphold the principle that what parliament says is the law is accepted by the Courts as such - the "Enrolled Bill Rule"

- what do cases on the doctrine of Implied Repeal say that is relevant? - and in particular Thoburn v Sunderland City Council [2002] 3 WLR 247?

Tom Bingham (Rt Hon Lord Bingham of Cornhill) has some very useful remarks on the subject in his book "The Rule of Law".

The Rule of Law

Many books deserve a fulsome recommendation. A very few fall into that rare category of "books every citizen should read". One small book out this year more than exceeds the criteria for inclusion in this limited list [the criteria should be (1) the writer has something VERY important to say AND (2) it is written in plain, readable language]

Lord Bingham of Cornhill ['Tom Bingham' is the name on the book] has been Master of the Rolls (head of England and Wales' civil justice system); Lord Chief Justice (head of the judiciary of England and Wales) and the Senior Law Lord (in the House of Lords Judicial Committee - the highest court in the UK before it became the Supreme Court). When he writes about the law, he knows what he is writing about! (Times' Profile)

"The Rule of Law" [London: Allen Lane, 2010 ISBN 978-1-846-14090-7] is a short, but incredibly powerful and useful book. It explains - in a very readable way - a central concept in English Law. He sets out a history of the idea, then explains what it means. It is no obscure academic principle, but the foundation upon which liberty rests. Every citizen should read this book - because it explains the meaning and importance of the idea - and sets out how easily it can be threatened.

The book is also a superb introduction to English Law. In succinct terms Lord Bingham explains (in a way unrivalled by any textbook I've seen) -

• sources of English Law (chap 3)
• principles of the English legal system (Chap 9)
• Judicial Review (Chap 6)
• Human Rights Law - including key provisions of the European Convention on Human Rights (Chap 7)
• principles of International Law (Chap 10)
• Sovereignty of Parliament (Chap 12)

If you are studying (or about to study) Law - [particularly those subjects traditionally known as 'English Legal System' and 'Constitutional & Administrative Law' (or the Open University's W100, W200, W201, Y166) - this is a book you will find very useful - both for understanding key concepts and for exam revision.
But this is not just a book for law students. Students of politics and history will also find it useful - as indeed (as I've already said a few times) ANY CITIZEN.