rule of law essay uk

rule of law essay uk

The Importance of the Rule of Law in the UK

1. Introduction

Lord Bingham’s final principle stating that “the justice system should be independent of the other limbs of executive and legislative power” has, for the most part, been adhered to, but there are ranging opinions to the extent this is in practice and debate over its effectiveness with the past and future. The extent of this principle will be looked at later in this essay in the discussion of different perspectives of the rule of law.

The third principle of Lord Bingham states that “Ministers and public officers at all levels must exercise the powers 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 in a way which is arbitrary, oppressive or discriminatory”. This principle has been and still is, in many ways, one of the most questioned aspects of UK law. The delegation of extensive decision-making powers from parliament to ministers and other public officers, in particular with the welfare state policies since welfare reform in 1979, and the array of powers conceded to deal with terrorism in the face of recent global politics have caused decisions made to be a matter of personal prejudice, ideology, or career interest and not for the purpose for which the powers were conferred.

His second principle of the rule of law stating that “laws of the land should apply equally to all, save to the extent that objective differences justify differentiation” is an idealistic principle and never entirely achievable, but a very important feature of a fair and civil society. The past and present situation of the UK has shown that this principle is a cornerstone to the rule of law. Lord Bingham describes how the two legal systems of EU law and, in particular, human rights law, and home office law on matters of immigration are very contradictory to this principle.

An extreme example of this was the last years of the Weimar Republic and the Nazi regime in Germany. At this time, Hitler introduced laws as his personal policies and public orders, and at one time there were 5 different legal systems in Germany. This example shows how law can be manipulated and corrupted so it serves the interests of the lawmaker. This ultimately results in a breakdown of law, which is a danger to any society.

However, the principles outlined by Lord Bingham in 2007 are generally accepted by British lawyers as a modern definition of the doctrine and are the most commonly referred to when discussing the rule of law in present UK. His first principle states that the law “must be accessible and so far as possible intelligible, clear and predictable”. This principle is very much imperative to the law today. In a society, there can be no order without law, and it cannot be an effective tool to regulate behavior unless people are able to be guided by it. The more ambiguous, conflicting, and inaccessible the law is, the less it can serve its purpose.

The rule of law is a set of values or principles that are assumed in the operation of the legal system, but these may be different from the operation of law in other societies. The doctrine is often classified into a number of different ‘principles’. In modern British society, these principles can be very ambiguous due to the extensive power over statute law and common law provided to the UK parliament and the inquisitorial procedures of EU law.

This essay will discuss the importance of the rule of law in the UK. In it, I will define the rule of law and its principles, explain different perspectives of the rule of law, and the influence and effectiveness of the rule of law in the UK before concluding whether the UK adheres to the principles of the doctrine and establishing its importance in society today.

2. Definition and Principles of the Rule of Law

The third principle is that there should be access to the courts. This means simply that everybody should be able to take their grievances before an independent and impartial court who would settle the dispute and enforce the law. The fourth and final principle is that the state should be bound by the law and be made to account in the ordinary courts. An application of this principle was made during A v Home Secretary with the law lords making the government accountable by reviewing the home secretary’s exercise of power of detention of suspected terrorists. All of these principles are designed to serve the final goal of the rule of law, which is the restriction of arbitrary power. An arbitrary power is one that is not restrained by law, it is power used as the holder wishes without any legal guidelines in place, and the principles above serve as direct antitheses to this.

The first is that all people are equal before the law. This means that the state is subject to the law as are all citizens, and that it does not matter what a person’s position is in society, they are subject to the same laws as everyone else. A good way of exemplifying this is the case of Entick v Carrington where even the king was made to seek legal authority to justify what he had done. This case is also a good demonstration of the second principle that there should be legal certainty. This means that there should be a way of knowing what the law is, it should be written and able to be accessed by anybody, and there should be no retrospective changes to it.

Consistency made everyone equal before the law. So, no man could be punished except for a definite breach of law established in the ordinary legal way before the ordinary courts of the natural people. It encompassed the idea of certain registered established law which should be available to the people and courts for guidance, and it did not only mean general principles of liberty and not authority of man subjected to the arbitrariness of a rule. At the end, it said that these defined rules should be administered by independent and impartial courts. This concise complex rhetoric is best understood when it is broken down into separate principles.

3. The Rule of Law in the UK

The application of the law should be such that it is accessible and made known to everybody, and while ignorance of the law is never a defense, a key element of the rule of law is to ensure that there are no retrospective laws, meaning that a person should only be bound by the law that was in force at the time of an event.

This is an important concept which means that the government itself should be subject to law as well as the rest of society. In other words, there should be no special legal rules that apply to the government and not the public. At present time, the judiciary has the job of ensuring that the government is carried out in accordance with the law and that justice prevails. This is a critical element of the rule of law as it helps to maintain the UK’s history of a fair and efficient government. Any breach of these principles could result in a return to a state where tyranny thrives and oppression is commonplace.

Meaning and principle of the rule of law. Laws and authority are one and the same. This law that is talked of is the law that represents a clear understanding of what is legal and illegal in the state that has been set out by the Parliament and Congress and is applied to society. The UK Parliament is the supreme legal authority and it can create or end any law.

4. Benefits of Upholding the Rule of Law

Free from human interference No human nature nor system is perfect. There are many cases where people in society have abused the law or exploited its loopholes to create unfair results. The Rule of Law in the UK, made up of Acts of Parliament, Common Law and Conventions, is the best bulwark against such abuse of power, and the best guarantor of equality and fairness in society. It is a check on despotism, as by having an independent judiciary, the government must act within the limits of the law when punishing individuals and the judiciary can declare void any government act that is ultra vires. People can only be deprived of their interests or punished within the constraints of an established law and Code of Practice, and only if they have been found guilty of a breach of law proven in open court. Police powers must also be regulated and controlled by law, and the implementation of law is done so within the constraints of a disciplined force. This is objectively monitored using the PACE Codes of Practice. Failure to adhere to these codes can result in exclusion of evidence in court, or possible civil/criminal prosecutions. The UK is also bound by European Community Law, which has supremacy over national law. Member states of the European Union have agreed to work towards a Europe based on the shared values of respect for human rights and fundamental freedoms, and the rule of law. European Law is a civil system that is designed to achieve substantively fair results and is far-reaching in its effect on UK law and politics. Membership of the European Union has greatly enhanced the concept of the Rule of Law in the UK, as seen in Factortame Ltd v Sec of State for Transport, where the Act of Parliament was declared to be in conflict with European Community Law and was thus annulled. It is also a mandatory requirement under a new provision of the Accession Treaty port Article 10 that a candidate for membership to the European Union should prove that it has a system in place which upholds the principles of Liberty, Democracy, Respect for Human Rights and Fundamental freedoms and the Rule of Law, and should thus take steps to conform to these principles.

5. Conclusion

Finally, the rule of law requires a clear separation of powers. In other words, a well-defined law is useless if those in charge are able to ignore it. This is not to say that Montesquieu’s old idea of the three separate powers is essential today, but some form of differentiation between the law makers and the law keepers is necessary.

A further part of preventing power abuse is to ensure equality of all before the law. Everyone can and should be held accountable for their actions, and the law should be impartial, whatever the privilege of the individual concerned. Underpinning this is the requirement for basic human rights. These are best kept when there is an effective rule of law and a system preventing power abuse. These rights act as a safety net and are designed to guarantee the individual the chance to challenge the state if need be.

Since then, the rule of law has evolved. It is a complex and ever-changing concept, and it can be said that every Attorney General is likely to provide his own interpretation of it. However, there are a number of key things which the rule of law must involve if it is to be a good and effective principle. Primarily, it creates a restriction of arbitrary power. This is the idea that the best way to prevent power abuse is to make it impossible. An important part of this is using the law as a weapon; it is to be sharp and defined so that all know what is legal and what is not, including those who are in charge.

Up until 1610, it was believed that the King or Queen was above the law and had the power to make and change it as they saw fit. Up until this point, it could be said that the law was an instrument of rule as opposed to a rule in itself. This was all changed by an event known as the Petition of Right in 1628. This event, put together by Parliament, led to the agreement by King Charles I for a regular parliament (to be called at least once every three years) and to the agreement that there were certain things that could not be done by the King, in other words, certain laws that he could not change. This is a turning point in English history, for it led to the subordination of the executive to the legislature and for the first time, it established the fundamental principle of the rule of law that the executive was forbidden to act in any way unless authorized by law.

It is without a doubt that the rule of law is an essential principle to the way the UK is governed. It acts as a guideline for the UK as a code of conduct for both the governed and the governors. At its simplest, the rule of law is the belief that no one is above the law. In the UK, the rule of law has a long history. It did not develop as a principle in itself until the end of the 17th century, although the concept of law goes back much further.