The concept of Rule of Law

In R (Unison) v Lord Chancellor [2017] UKSC 51, Lord Reed said at para 68 - "At the heart of the concept of the rule of law is the idea that society is governed by law."

The important concept of "the Rule of Law" is much more than one of the clichés of modern life. The rule of law is invoked by lawyers and politicians but there is no precise definition to which one can turn.  Nonetheless, authoritative sources contain references to the rule of law and offer descriptions of the concept.


References to rule of law:

The rule of law is mentioned
in the preamble to the Universal Declaration of Human Rights (1948) - "Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law."  The Declaration came into being during the immediate aftermath of World War 2 and sets out a number of rights which, according to the preamble, Member States have "pledged themselves to achieve."

The Preamble to the European Convention on Human Rights - "Being resolved, as the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration."  British lawyers played a considerable part in the drafting of this convention. 

The words "rule of law" also appear in some Acts of Parliament such as the Constitutional Reform Act 2005 section 1 where the rule of law is referred to as an "existing constitutional principle"  but the Act makes no attempt to define it.

A further reference to rule of law appears in Article 2 of the Treaty on European Union - "The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail."

The EU Rule of Law Framework developed because, in recent years, the European Commission has been confronted with crisis events in some EU countries, which revealed systemic threats to the rule of law. The Commission reacted by adopting the rule of law framework to address such threats in EU countries.  The objective of the rule of law framework is to prevent emerging threats to the rule of law to escalate to the point where the Commission has to trigger the mechanisms of Article 7 of the Treaty on European Union (TEU). This is done through dialogue with the EU country concerned.

Descriptions:

The World Justice Project describes the rule of law as - "a durable system of laws, institutions, and community commitment that delivers four universal principles:

Accountability - The government as well as private actors are accountable under the law.

Just Laws - The laws are clear, publicized, and stable; are applied evenly; and protect fundamental rights, including the security of persons and contract, property, and human rights.

Open Government - The processes by which the laws are enacted, administered, and enforced are accessible, fair, and efficient.

Accessible and Impartial Dispute Resolution - Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are accessible, have adequate resources, and reflect the makeup of the communities they serve.

The Bingham  Centre describes the rule of law as "a principle of the UK constitution that means politicians govern within their powers, the law applies equally to all and that the law is certain."

The late Lord Bingham in his book - 'The Rule of Law'  - identified eight principles:

• 1. The law must be accessible, clear and predictable.
• 2. Questions of legal rights should be resolved by the law and not the exercise of discretion.
• 3. The law should apply equally to all, except where objective differences justify differentiation.
• 4. Ministers must act within their powers and not exceed their limits.
• 5. The law must afford adequate protection of fundamental human rights.
• 6. The law should provide access to justice, especially where people cannot resolve inter-personal disputes themselves.
• 7. Courts and tribunal processes should be fair.
• 8. The state should comply with international law.

Australia's Magna Carta Institute has a further description -

A country that adheres to the rule of law ensures that –

• All persons and organisations including the government are subject to and accountable to the law
• The law is clear, known, and enforced
• The Court system is independent and resolves disputes in a fair and public manner
• All persons are presumed innocent until proven otherwise by a Court
• No person shall be arbitrarily arrested, imprisoned, or deprived of their property
• Punishment must be determined by a Court and be proportionate to the offence

As a result it can be said that the rule of law is more than simply the government and citizens knowing and obeying the law. The rule of law involves other concepts, such as checks and balances on the use of government power, the independence of the judiciary, the presumption of innocence, access to justice, and the right to a fair trial."

Rule of Law and Human Rights:

In 1885, Professor A V Dicey coined the phrase "rule of law" in his "Introduction to the Study of the Law of the Constitution."  For Dicey, the rule of law had three aspects:

No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.  In this sense, the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint

No man is above the law: every man and woman, whatever be his or her rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals; and

The general principles of the constitution (as, for example, the right to personal liberty, or the right of public meeting) are, with us, the result of judicial decisions determining the rights of private persons in particular cases brought.

Dicey's reference to "rights" is therefore the rights as established by the law courts as opposed to rights set out in a particular document.   In relation to liberal democracies, modern descriptions of the rule of law include a reference to human rights.  The rule of law is not indifferent to human rights:.  Without human rights, the rule of law is an empty concept- see Rights Info Why the rule of law matters more than ever

The view that the rule of law must protect fundamental rights has international support.  The United Nations has stated that the rule of law and human rights are two sides of the same principle, the freedom to live in dignity.  The rule of law and human rights therefore have an indivisible and intrinsic relationship. That intrinsic relationship has been fully recognised by Member States since the adoption of the Universal Declaration of Human Rights - see UN Rule of Law and Human Rights and UN Rule of Law meeting October 2012 - Rule of law without human rights is an empty shell.

See also the UK government statement (19 June 2017) to the 35th Session of the UN Human Rights Council - "By upholding international human rights principles, the rule of law is key to closing the gap between human rights aspirations and human rights realities, and to promoting and protecting human rights. We see how the rule of law operationalises human rights through constitutional and legal protections of human rights, an independent and impartial judicial system, effective legal remedies, and competent, accountable and inclusive institutions.

The rule of law has a role in preventing violence ..... as well as protecting human rights. We are mindful that societies in which human rights are valued, and people are empowered and listened to, are more likely to be just, fair, stable and free from violence. In this session, which has a particular emphasis on women’s rights, we take the opportunity to stress the importance of the rule of law in enshrining equality before the law, access to justice, and participation in decision making on the basis of equality, thereby empowering the whole of society."

An uncertain concept:

In 2007, the UK House of Lords itself concluded that the rule of law “remains a complex and in some respects uncertain concept”- see the House of Lords Constitution Committee 6th report of session 2006-2007 (para 24) and Appendix 5 (Rule of Law).


At the end of his book "Rule of Law", Lord Bingham asked - "What makes the difference between Good and Bad Government?"  His answer was the rule of law.  "In a world divided by differences of nationality, race, colour, religion and wealth it is one of the greatest unifying factors, perhaps the greatest, the nearest we are likely to approach to a universal secular religion.  It remains an idea, but an idea worth striving for, in the interests of good government and peace, at home and in the world at large" - The Rule of Law (2010) at p. 174.

The rule of law is the antithesis of the rule of power.  

Notes:

Criticism by Sir Stephen Laws of the Unison case may be seen at Law Society Gazette - Second-guessing policy: the rule of law after Unison

Lecture on Rule of Law by Lord Bingham