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." He continued - "Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law.
In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other."That paragraph is within a section of Lord Reed's judgment (para 66 to 85) dealing with the "constitutional right of access to the courts." The principle that "the executive branch of government carries out functions in accordance with the law" is key to any understanding of the term "rule of law."
The "rule of law" is invoked frequently by lawyers and politicians but there is no precise definition to which one can turn. Nonetheless, several authoritative sources contain references to the rule of law and offer descriptions of the concept.
The World Justice Project provides an overview of what the rule of law entails. The Project highlights four "universal principles" which constitute the "building blocks for any rule of law system."
An earlier post on this blog (19 June 2019) noted the absence of a definition of the term "rule of law" but also provided links to authoritative sources containing references to the rule of law and offering descriptions of the concept. The sources include:
- Professor A V Dicey (1885) - "Introduction to the Study of the Law of the Constitution" where the phrase "rule of law" first appears together with Dicey's attempt to explain it
- The Preamble to the Universal Declaration of Human Rights (1948)
- The Preamble to the European Convention on Human Rights
- Article 2 of the Treaty on European Union - (the UK was a Member until midnight 31 January 2020. A "transition period" applied until 31 December 2020)
- Lord Bingham's book "The Rule of Law"
Australia's Magna Carta Institute - The Rule of Law - identifies elements of the rule of law -
- fairness – law applies to all regardless of status
- rationality – not arbitrary and make sense – that the law can be followed and is not so complex that it cannot be understood.
- predictability – that punishments for breaking the law are clear and predictable
- consistency – similar circumstances are dealt with the same way
- impartiality – independent body makes decisions on law
See also the Magna Carta Institute's webpage Principles of the Rule of Law
In 2007, the UK House of Lords Constitution Committee 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 (at para 24) and Appendix 5 (Rule of Law).
Hence, there is no precise definition of the term "rule of law" and the LAW could of course be exceptionally draconian. An important question therefore arises - To what extent, if any, does the rule of law constrain Parliament given that it may make any law it wishes - (see Parliamentary Sovereignty).
In English legal theory, there are no LEGAL constraints on what Parliament may legislate for but in any 21st century democracy there ought to be respect for international law and for fundamental human rights.
The United Nations considers that "the rule of law is a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires measures to ensure adherence to the principles of supremacy of the law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness, and procedural and legal transparency" - UN What is the Rule of Law.
The "rule of law" is a vital concept in any 21st century democracy. It is a fundamental principle and the commitment of the public to it is crucial. Politicians obviously have a particularly important role and it is to Parliament that the people look to upholding the principles by which we are governed including the rule of law itself.
House of Lords - Constitution Committee
On 11 March 2025, the House of Lords Constitution Committee called for written evidence for its inquiry into the rule of law and invited interested individuals and organisations to submit their views.
Regrettably, the timescale was short with a deadline of 10 am on 22 April 2025.
On 9 May, the committee called for evidence from "legal professionals" - see HERE. The deadline is 13 June 2025.
Links
Constitutional Reform Act 2005
R (Unison) v Lord Chancellor [2017] UKSC 51
World Justice Project and What the rule of law entails
Law and Lawyers blog (19 June 2019)
Dicey - "Introduction to the Study of the Law of the Constitution"
Universal Declaration of Human Rights
European Convention on Human Rights
Lord Bingham's book "The Rule of Law"
Australia's Magna Carta Institute - The Rule of Law and Principles of the Rule of Law
House of Lords Constitution Committee 6th report of session 2006-2007
Constitution Unit - The Rule of Law: What is it and why does it matter
Constitution Unit - Constitutional Principles
Bingham Centre for the Rule of Law - notes "These are challenging times for the Rule of Law. It is under threat not only in countries witnessing the rise of authoritarian populism and illiberal democracy, but in the mature democracies which have prided themselves on their regard for the Rule of Law and the strength of their Rule of Law institutions."
Rule of Law in an Age of Populism - Speech by Lord Hermer KC, Attorney-General - 15 October 2024
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