Discover The Facts

Rule of Law


This section contains non-partisan factual information about the Rule of Law. It has been compiled by the site editor and is updated periodically. It cannot be re-edited by site users. If you believe any of this material is factually incorrect or politically biased please contact the editor.

What you need to know


It is generally accepted that adherence to the Rule of Law is fundamental to and is one of the defining features of a civilised society.  The “Rule of Law” is an ancient principle and has been subject to many interpretations over the centuries.  It is a phrase universally used but not comprehensively defined, although it is commonly understood to mean that every member of a society is bound by and entitled to the benefit of laws which are publicly made and publicly administered and which do not have retrospective effect.  So, all are subject to and equal under the law, even rulers and governments.  In essence it can be said that the rationale of the Rule of Law is to provide a safeguard against arbitrary governance whether by totalitarian leaders, elected governments or mob rule.  More

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Included here is a summary of the formulation of the Rule of Law by Thomas Bingham, former Lord Chief Justice of England and Wales, which, whilst expressing the personal viewpoint of Lord Bingham, is widely regarded by many in the United Kingdom as encapsulating most of the fundamental principles underpinning the Rule of Law:

 

1. The law should so far as possible be clear, accessible, intelligible and predictable;

2. In general we should be governed by law and not by discretion

3. Equality before the law

4. The exercise of powers publicly conferred by statute should be exercised by those on whom they are conferred reasonably, fairly, honestly and for the purpose for which they were conferred

5. Dispute resolution should be available to all

6. The law must provide adequate protection of fundamental human rights (Note: not all commentators believe that human rights fall within the ambit of the Rule of Law)

7. The state should provide a fair trial

8. The state should comply with its duties in international law as well as its duties in national law

Tom Bingham The Rule of Law (Allen Lane, London, 2010)

Some also extend the principle to include the notion that the government is created by and for the people and is answerable to the people.

In times of crisis, governments may seek to justify departures from the Rule of Law on the grounds of national security.  Several instances of such departures from the principles of the Rule of Law have occurred in recent years in the United Kingdom and have raised concerns as to the effectiveness of provisions designed to keep the executive in check. 

The judiciary are often regarded as the guardians of the Rule of Law, as it falls to an independent and fair judiciary to enforce the Rule of Law, especially when invoked by citizens to protect themselves from the excesses of the state or the executive.

 

Section last updated September 2010

Why does it matter?


The protection of the Rule of Law has been in the spotlight because of the recent increased threat of terrorism and because of the controversy surrounding the legitimacy of military action in Iraq.  The extension of powers contained in counter-terrorism legislation, such as the right to detain suspects without trial, raised concerns about the balance between the need for security and the protection of the individual liberties of citizens.  Increased levels of surveillance in daily life raise similar concerns.  But striking the balance between interests is not an exact science.


What are the key facts?


The Rule of Law is an elusive notion. It  is not comprehensively defined in any one document, but  reference to the phrase is made in national and international laws, declarations and conventions which have in turn provided different formulations of the principles. More

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The Universal Declaration of Human Rights and the European Convention on Human Rights both refer to the Rule of Law.

In 1959, over 185 judges, lawyers and law professors from 53 countries took part in the New Delhi Congress and published the Declaration of Delhi which set out the principles they considered were comprised in the Rule of Law.  Broadly they took the view that individuals have certain rights and freedoms which must be protected; that an independent judiciary is fundamental for the protection of these rights and freedoms and that the establishment of certain basic economic and cultural conditions would assist in the protection of these rights. (The International Commission of Jurists is still in existence today – see http://www.icj.org/.)

In the United Kingdom Section 1(1) of the Constitutional Reform Act 2005 states: "Nothing in this Act shall detract from the existing constitutional principle of the Rule of Law."  However, it does not offer a definition of what that principle is.

Broadly most civilised societies are in favour of the Rule of Law but there are differing views as to what it means.  Put at its simplest, the Rule of Law can be interpreted as meaning that every member of a society, even the ruler or governing body is subject to and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts and all are equal under the law.  Some also extend the principle to include the notion that the government is created by and for the people and is answerable to the people.

The Secretary-General of the United Nations defines the rule of law as “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, as well, measures to ensure adherence to the principles of supremacy of 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." More

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Report of the Secretary-General: The rule of law and transitional justice in conflict and post-conflict societies” (2004)

Lord Bingham summarizes this priniciple in a more colloquial manner:

"If anyone – you or I – is to be penalized it must not be for breaking some rule dreamt up by an ingenious minister or official in order to convict us.  It must be for a proven breach of the established law of the land." More

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Tom Bingham, The Rule of Law Allen Lane, February 2010

A broad definition

Lord Bingham has also attempted a broader definition of eight principles which in his view underlie the Rule of Law.  Whilst not all of these principles are accepted by all commentators, they nevertheless provide a useful structure within which to consider the scope and import of the Rule of Law.  More

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These principles are summarized by Phillipe Sands QC here.
1.  The Law must be accessible and so far as possible intelligible, clear and predictable.

It might be assumed that the laws of the United Kingdom obviously comply with this principle, since we have well established procedures for the publication of laws.  Yet, the growth in the volume of legislation being passed by parliament and the growing trend for the creation only of enabling statutes which empower a minister or other responsible body to flesh out the law by the creation of regulations under statutory instruments, mean that it has become more difficult for citizens to keep track of what the law is.  More

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In the period from 1997 to 2010, more than 4,200 new criminal offences were created.  See Chris Huhne MP website. http://www.chrishuhne.org.uk/news/1285/labours_4300_new_ways_of_making_you_a_criminal__huhne.html
In addition to the volume of legislation and regulation, it can also be difficult to track amendments to or repeal of regulations.

 

In addition to legislation, the law as enshrined in the common law and legal precedent should also comply with this general principle of clarity and accessibility.  In the past when cases were decided in the House of Lords, the Lords might each deliver their own individual judgments, which may have made it difficult for the ‘man in the street’ to comprehend the impact of their decisions.  The new Supreme Court, however, will generally deliver a single judgment, which is felt likely to make the decisions of that court more easily understood.

 

2. Questions about legal rights or liabilities should not be decided by discretion but by the law.

This is the principle that citizens should be able to know whether or not their actions will be deemed lawful, and should not be subject to the arbitrary whims of autocrats.  No laws should be passed which retrospectively proscribe behaviour.  This is important not only for citizens but also for commerce.

 

3. The law should apply equally to all, except where there is an objective justification for any difference.

The law should apply equally to all – in other words no special treatment will be afforded to anyone because of their identity or position.  More

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There are some limited exceptions to this principle, such as the doctrine of diplomatic immunity.

 

4.  Ministers and public officers must exercise the power conferred on them in good faith,  fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably

The misuse or abuse of powers by authorities gives cause for concern in certain quarters.  For example the use of powers under the Terrorism Act 2000 to eject an 82 year old heckler from the Labour Party conference in 2005 was widely regarded as an abuse of power.  Less clear are the circumstances where the passage of time leads to powers created for one purpose being used to achieve another purpose.

 

5.  Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve.

As a last resort, if we have rights to assert or to defend, we ought to be able to go to a court established by the law of the land in order to get an answer or resolution.  In principle, all citizens of the UK have the ability to resort to the courts to resolve disputes.  In practice, however, the excessive cost of litigation makes it inaccessible other than for the wealthy or the limited number of those who are legally aided.

 

6.  The law must afford adequate protection of fundamental human rights

Not everyone agrees that Rule of Law necessarily implies the protection of human rights, even though there is a high level of consensus as to what basic human rights should be.  As Vernon Bogdanor has pointed out, the existence of a Bill of Rights in the United States did not prevent the continuation of slavery until the Civil War and segregation and discrimination until the latter part of the twentieth century.

 

7.  Adjudicative procedures provided by the state should be fair.

This principle invokes the idea that a defendant should be entitled to know the case against him, have access to all the information available to the court that tries him and have the opportunity to argue his defence.  Moreover it includes the principle that no-one should be detained indefinitely without being charged and that cases should be brought to trial expeditiously. 

This has proved to be a particularly controversial area recently because of the impact of legislation brought into force by reasons of national security.  The extension in 2006 of the period during which a suspect may be held without charge from 14 days to 28 was held by the government to be crucial for the effective containment of the terrorist threat, yet critics argued that it represented an unwarranted infringement of civil liberties.   The growth of the range of cases in which secret evidence may be used has caused some to call for a comprehensive review amid fears that the judicial balance is tipping away from the defendant and in favour of the state. More

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see Counter-Terrorism Policy and Human Rights (Seventeenth Report): Bringing Human Rights Back In Human Rights Joint Committee 9th March 2010 http://www.publications.parliament.uk/pa/jt200910/jtselect/jtrights/86/8603.htm

 

8.  The rule of law requires compliance by the state with its obligations in international law as in national law. 

The controversy surrounding the legality of the Iraq war has prompted at least one commentator to suggest that international respect for the Rule of Law is ‘fractured’. More

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  Lord Johan Steyn, Invading Iraq was not just a disaster: it was illegal Financial Times, 30th November 2009

 

Balancing the Rule of Law

The eight principles outlined above focus essentially on the role of the Rule of Law as ensuring the individual liberties of citizens.  However, governments must also take account of the national interest or the interests of citizens as a whole.  This question is thrown particularly into relief in the consideration of national security.  It has been suggested that governments must address a triangle of interests: the functional imperative of protecting ourselves from the risks to which we are exposed – the new technology and the reach of the state –the individual and collective rights and responsibilities embodied in the Rule of Law. More

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The Joint Committee on Human Rights scrutinises the actions of the government for compliance with Human Rights principles and laws.  In their Seventeenth report they say the following: The Government states that "the protection of human rights is a key principle underpinning all the Government's counter-terrorism work."  However, all too often human rights considerations are squeezed out by the imperatives of national security and public safety.

 

Since September 11th 2001 the Government has continuously justified many of its counter-terrorism measures on the basis that there is a public emergency threatening the life of the nation.  This permanent state of emergency inevitably has a deleterious effect on public debate about the justification for counter-terrorism measures.  

The report goes on to urge a complete review of all counter terrorism legislation and seek justification from the government that measures introduced are necessary.

Counter-Terrorism Policy and Human Rights (Seventeenth Report): Bringing Human Rights Back In   Human Rights Joint Committee 9th March 2010 http://www.publications.parliament.uk/pa/jt200910/jtselect/jtrights/86/8603.htm

Those who argue from the point of view of the protection of civil liberties would assert that the reach of the state and the issues of national security should never be allowed to undermine the Rule of Law.  They argue that any departure from the basic principles leads to a collapse in the Rule of Law.  Lord Phillips - President of the UK Supreme Court - agrees.  “The rule of law is never negotiable.  It is not a luxury item that can be put away in the cellar in times of emergency, to be brought out again when things get better.  Neither government nor the citizen can be permitted to believe that fighting terrorism is more important than observing the rule of law. Upholding the rule of law is a vital part of the fight against terrorism, for the real battle is one of ideology, not of arms.” More

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Lord Phillips – Address to the The Qatar  Law Forum 30 May 2009 “The Rule of Law in a Global Context”. See also  Tom Bingham, The Rule of Law
Others, however, believe that the end justifies the means and that limited erosion of the Rule of Law may be unavoidable or even essential for the preservation of the common good. More
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For example, in 1997 a UN resolution imposed a blanket ban on the sale of arms to Sierra Leone.  In order to assist the democratically elected and subsequently deposed president, Kabbah, to regain power, the Foreign Office treated this as an embargo only against the rebels and communicated with Sandline, a mercenary company which successfully ran arms to the deposed democrats, who were subsequently restored to power.  The enquiry into the scandal whereby the Foreign Office was apparently pursuing two opposing policies simultaneously in Sierra Leone, and one of those in breach of  a UN resolution,  prompted frustration on the part of Tony Blair who is reported to have said in exasperation: 'For God's sake, the good guys won.' See Chapter 10, Servants of the People by Andrew Rawnsley September 2000 Hamish Hamilton

 

Guardians of the Rule of Law

Michael Wills, former Justice Minister has spoken at length about the guardianship of the rule of law.  He has said that the principle of parliamentary sovereignty may be summarized thus: what the Queen in Parliament enacts is law. 

Some jurists have suggested that the doctrine of parliamentary sovereignty should not apply if government sought to undermine the democratic principles which confer legitimacy on it, and that in what Lord Steyn has called 'such exceptional cases', 'the rule of law may trump parliamentary supremacy'.   But, equally the rule of law only applies within accepted political norms. Authoritarian dictatorships might still operate within the rule of law, at least in the formal sense of the phrase.  To secure its legitimacy, the law needs to operate according to the underlying values of the society within which it applies.  As Lord Bingham has argued 'democracy lies at the heart of the concept of the rule of law' - because the citizen should 'have a say in the laws by which he is bound'.

And the ability of the courts to restrain parliament is itself fettered by the position of the judiciary in our constitutional system.  The very independence of the judiciary which secures its integrity also shapes boundaries on its power.  In the resonant words of Lord Bingham, 'The British people have not repelled the extraneous power of the papacy in spiritual matters and the pretensions of royal power in temporal in order to subject themselves to the unchallengeable rulings of unelected judges.'

The willingness of the judiciary to take a firm line against legislation that is incompatible with human rights has been clearly seen in cases such as A v. The Secretary of State for the Home Department (2004) which held that the indefinite detention of foreign prisoners in Belmarsh without trial under the Anti-terrorism, Crime and Security Act 2001 section 23 was incompatible with the Human Rights Act 1998. More

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In that case Lord Hoffmann delivered a strongly-worded dissenting judgement in which he went further than the other judges and ruled that it was not open to the government to derogate from the   general provisions of the European Convention on Human Rights.  His view was that the test, that there is a "threat to the life of the nation" was not fulfilled. He said:

"This is a nation which has been tested in adversity, which has survived physical destruction and catastrophic loss of life.  I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda.  The Spanish people have not said that what happened in Madrid, hideous crime as it was, threatened the life of their nation.  Their legendary pride would not allow it.  Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community. …. Others of your Lordships who are also in favour of allowing the appeal would do so, not because there is no emergency threatening the life of the nation, but on the ground that a power of detention confined to foreigners is irrational and discriminatory. I would prefer not to express a view on this point.  I said that the power of detention is at present confined to foreigners and I would not like to give the impression that all that was necessary was to extend the power to United Kingdom citizens as well.  In my opinion, such a power in any form is not compatible with our constitution.  The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these [the Anti-Terrorism Crime and Security Act 2001].  That is the true measure of what terrorism may achieve.  It is for Parliament to decide whether to give the terrorists such a victory."

A and others v Secretary of State for the Home Department [2004] UKHL 56

The establishment of the new Supreme Court has made clearer the separation of powers between the legislature and the judiciary, though it has long been accepted that the judiciary are impartial and independent of parliament or the executive.  There is uncertainty, however, as to whether the new Supreme Court will feel more free to strike down legislation which it views as incompatible with the Rule of Law. More

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for views on this see Talking Heads with Lord Phillips, Lord Woolf and Lord Bingham

What do others think?


The United Nations Rule of Law

http://www.unrol.org/

 

"Kick-starting a national debate on a Bill of Rights and Responsibilities", speech delivered by

Michael Wills, (Justice Minister) 5th March 2008

http://www.justice.gov.uk/news/sp050308b.htm

 

A Manifesto for Justice published by Justice, AdviceUK, The General Council of the Bar, ILEX ,  Law Centres Federation, Legal Action Group, Legal Aid Practitioners Group and Liberty December 2009

http://www.liberty-human-rights.org.uk/publications/6-reports/index.shtml


References and Links


Research papers

Counter-Terrorism Policy and Human Rights (Seventeenth Report): Bringing Human Rights Back, Human Rights Joint Committee, March 2010

Courts and the Making of Public Policy: In Times of Crisis, Can We Trust the Courts? - Report and Analysis of a Workshop in collaboration with the Aspen Institute Justice and Society Program, Aspen, July 2008.

Useful websites

International Commission of Jurists – An international body dedicated to the primacy, coherence and implementation of international law and principles that advance human rights.

Further reading

- Tom Bingham, The Rule of Law (Allen Lane, February 2010 )

- F.A. Hayek, The Constitution of Liberty (Chicago: University of Chicago Press, 1960)

- J.M. Kelly, A Short History of Western Legal Theory (Oxford: Clarendon Press, 1992)

- Anthony King The British Constitution (OUP Oxford 2007)

- Vernon Bogdanor The New British Constitution (Hart Publishing 2009)