The Rule of Law

• Paragraph 1 - What is the rule of law? (A01)

  (1) A symbolic concept associated with two key principles: fairly applied law to all citizens & fair enforcement.

  (2) The idea of legal sovereignty is key & the law must be sovereign to safeguard against dictatorship and the exercise of arbitrary power (Dicey 19th Century).

  (3) Alongside the absence of arbitrary power, the rule of law was characterised by equality of the law and supremacy of ordinary law - enforced via judicial review.

  (4) A more modern definition of the rule of law was given by Lord Bingham in 2005. He criticised Dicey's views & stated that his view only focused on government & not the impact on society. He stated the law must protect fundamental human rights, that adjudicative procedures must be far and that the law should provide a means to resolve civil disputes without excess cost or delay.
• Paragraph 2 - Brief Outline of ELS Development (A01)

  (1) The Magna Carta (1215) was seen as the first formal attempt to limit the monarchs power and was one of the 1st charters to establish that no one is above the law.

  (2) The Case of Proclamations (1610) established limits on the monarchs power, which was restated in the Bill of Rights (1689).

  (3) Judicial review was used to prevent public officials not abiding by the law in Entick v Carrington.

  (4) The Constitutional Reform Act (2005) provided physical & constitutional separation of the Judiciary from Parliament - showing that the rule of law, in statute, holds significance today.
• Paragraph 3 - Independence of the Judiciary [Positives in Procedural Law]

  (1) Rule of law is embedded into the ELS through the independence of the judiciary. This is crucial to upholding the rule of law, authority is distributed in a way to ensure each branch of government has checks & balances.

  (2) This fits Dicey's view of the rule of law as it requires judicial review.

  (3) The Constitutional Reform Act created the separation of the judiciary - Judges are appointed by an independent appointments commission (JAC) and once they are appointed, they are independent.

  (4) Judges have immunity from suit - they cannot have cases brought against them for decisions they make (Siris v Moore). They are free to carry out their duties without fear.

  (5) Upheld the rule of law in 2019 Prorogation case in which PM tried to attempted to prorogue Parliament to pass Brexit bill so it wouldn't face scrutiny.

  (6) The judiciary ruled in favour of the claimant - rule of law was upheld as the executive as held accountable & the exercise of arbitrary power was prevented.
• Paragraph 4 - Equality under the law [Positives in Substantive Law]

  (1) Article 5 upholds the rule of law & fits in with Tony Honoré's idea - Tony maintained that the law should be clear & accessible, sanctions imposed on people should be in accordance with the law & everyone should be equal under the law.

  (2) People with mental disabilities are not deprived of their liberty. Article 5(1) is concerned with the right to liberty - no one should be deprived of their liberty (Guzzardi v Italy).

  (3) This comes into conflict with whether people in care should be deprived of their liberty. Mental Capacity Act states that it may be necessary to treat them in ways that may deprive them of their liberty but unclear if they have same right.

  (4) Cheshire West & Chester Council v P established those with mental incapacity had same right as everyone else. This upheld the rule of law as it provided formal equality.

  (5) For rights to be limited, they must be done by the procedure laid out in the article itself.
• Paragraph 5 - COVID Laws [Limitation I]

  (1) During COVID, many statutory instruments were passed without proper scrutiny & debate - undermining the rule of law.

  (2) The lack of clarity was exacerbated by the fact that COVID laws were mostly delegated legislation which is done in private, compared to Acts of Parliament which are publicly debated.

  (3) Lack of publicity means public are unsure of what the law is and how it affects them.

  (4) For example, the Coronavirus Act (2020) passed through Parliament in just four days alongside many statutory instruments that imposed new rules to existing guidelines.

  (5) This goes against the rule of law as laws were not clear + ascertainable, or properly debated.
• Paragraph 6 - State can exercise arbitrary power [Limitation II]

  (1) Dicey argues that the rule of law requires there to be an absence of arbitrary power from the state - the law must be sovereign and limit what the state can or cannot do.

  (2) The government has used legislation to give itself more power, as seen with the Anti-Terrorism, Crime & Security Act (2001).

  (3) This act allows the government to impose restrictions on perceived terrorism threats. Suspects were detained and not able to challenge their detentions.

  (4) Detainees also had control orders imposed on them e.g house arrest without even being charged for a crime.

  (5) This violates habeas corpus & the presumption of innocence, fair trial and due process justice system in the UK.

  (6) However, these powers were changed due to the case of A v Secretary of State.
• Conclusion - Is the rule of law prevalent in the UK's ELS?

  (1) Overall, although there are some problems & limitations of the rule of law in practice, the principle of the rule of law continues to hold value and be respected - as evident in procedural and substantive law.