Rule of law

• rule of law - one of the fundamental doctrines of the British constitution and part of S.1 of the CRA 2005
• Aristotle tried to define it once - "Given the choice between a king who ruled by his discretion and a king who ruled by law, the latter was clearly better than the former"
• Albert Venn Dicey - Suggested the rule of Law has 3 main principles:

  1. No sanction without breach (No punishment without breaking the law)
  2. Equality before the law
  3. Supremacy of ordinary law
• Rule of law means that government cannot exercise their powers unless it has been authorised by some specific law.
• 1. No one can be subject to punishment without breaking the law

  • proper legal procedures to make new law - through Parliamentary legislative process
  • No law should have retrospective effect ( cannot apply to past events) except for the war crimes act 1991
  • All law needs to be transparent and open to all - done through use of green and white papers during pre-legislative process when consultation takes place
• 2. equal under the law

  • Everyone + gov is equal before law, no one is above the law
  • R V Chahytor (2010) Supreme court
• 3. Supremacy of ordinary law

  • Judicial precedent allows judges in highest courts to make decisions the lower courts follow
  • Judicial review examine actions of ministers and other public bodies (R V Home secretary ex parte Fire brigades Union 1995 - held the home secretary made changes to criminal compensation schemes and it was ultra vires)
  • A + others V Secretary of state for home department 2005 - held that gov provisions under anti-terrorism, crime and security act 2001 which threatened ECHR and the rule of law
• In practice - Parliamentary sovereignty threatens the rule of law due to Parliament could pass laws which infringe on it.
• CRA 2005 -

  • enhanced the separation of powers and secured the strengthened independence of the judiciary through creating the supreme court
  • Judges unable to be political/influenced by government or Parliament as independence is crucial in securing rights for people
• Lord justice Bingham states that rule of law is relevant as it


  "Remains an ideal, but an ideal worth striving for"
• Joseph Raz - slightly different view . 


  His rule of law - guides and controls behaviour of people and minimise danger that can arise from discretionary exercise of arbitary power
• F.A. Hayek - agreed with Dicey


  element of rule of law is the absence of any arbitrary power on the part of state. He did believe the rule of law has weakened over time