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Rule of Law
The importance of rule of law in UKs constitution, while considering the perspective
of J Raz and Dicey.
Rule of law is neither a rule nor a law. It is generally understood as a doctrine
of political morality which concentrates on the role of law in securing the correct
balance of rights and powers between individuals and the State in free and
civilised society. In essence the rule of law means that government and its officials,
together with private citizens, must act under the law. The rationale behind it is to
control the exercise of public power by the state by ensuring that it is exercised
strictly within legal rights. This principle is inextricably/closely linked with the
independence of the judiciary, thus, courts play a central role in upholding the rule
of law. The concept of rule of law is an ancient one, the idea is that the rule of law is
preferable to the rule of man, since the latter might be abused, and lead to
dictatorship. For example: in a state where the executive controls the law-making
process, it would be possible for the executive to secure whatever powers it saw fit
and to have these phrase in vaguest possible terms. The rule of law is not a modern
concept, but it is an ancient origin as it was Aristotle who stated that, under the
rule of men, citizens are governed by men, who are capable of acting irrational and
capricious manner. In contrast, under the rule of law, unlike the rule of men, is not
applied in an irrational or capricious manner, and governs the actions of private
individuals and state official alike. Furthermore, rule of law is understood as one of
the fundamental principles of UKs unwritten constitution. The key concept of the
rule of law is that the law should apply equally to all, rulers and ruled alike. For
example: Diceys perspective on rule of law is that, a government of law and not a
government of men. The alternative of the rule of law is there for arbitrary
government. So as John Lock stated, whenever law ends, tyranny begins.
Moreover, the principle of rule of law concerns that law should rule in the sense that
it applies to all conduct and behaviour and covers both private and public officials.
Rule of law in terms of a legal principle and procedural mechanism: the
rule of law is seen as a procedural mechanism controlling and limiting the exercise
of governmental/public power. The actions of state officials which impact on the
individual should have a clear foundation of law. According to Art 5(2) of the
European Convention on Human Rights states that, everyone who is arrested shall
be informed promptly/sharply/punctually, in a language which he understands, of
the reasons for his arrest and of any charge against him. This implies that the
arrested person understands why and on what ground he is being arrested and
detained/held by the state. It also makes state officials legally accountable for their
actions, as when they interfere with the individual freedoms they are required to
justify legally their actions. The rule of law in this sense is a procedural mechanism
which ensures that government and its officials act under the law.
For example: R (Jones) v Chief Constable of Cheshire Police (2005),
jones had been issued a pedlars (salesperson) certificate under the Pedllars Act
1871, and when arrested and interviewed by the police on suspicion in relation to
an offence of dishonestly, his certificate was seized. The court granted a declaration
(in judicial review proceedings) that the police had no lawful power to seize the
certificate as the Pedlars Act 1871 had contained no provision to that effect.
In regards to procedural mechanism, if the rule of law is viewed exclusively as
a procedural mechanism which asks simply whether a government official
possessed, (necessary legal power to arrest an individual/ had the state officially

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followed the law?) then this in itself does not necessarily fully protect the individual,
because it is possible in British constitution at least for exceptionally wide and
extensive powers of arrest and detention to be discussed legally on state officials.
Whether the rule of law is a concept of political theory: the interpretation of
rule of law is concerned with the form that the law takes. Raz stated that the rule
of law is a political idea which means that individuals should be ruled by the law and
that the law must be able to guide individuals if they are to obey the law. As a
consequence, this allows individuals to plan their lives accordingly. Furthermore, Raz
argued that the making of law should be guided by:
1) All laws should be prospective, open and clear.
2) laws should be relatively stable
3) The making of particular laws should be guided by open, stable, clear
and general rules.
4) The independence of the judiciary must be guaranteed.
5) The principle of natural justice must be observed
6) The courts should have review powers over the implementation of the
other principles.
7) The courts should be readily accessible.
8) The discretion/will of the crime preventing agencies should not be
allowed to pervert/misrepresent the law.
1) All laws should be prospective, open and clear: a) Prospective laws- laws
should be prospective/potential/future so that laws look forward rather than
punishing behaviour retrospectively/looking back. For example: retrospective laws
are objectionable because individual does not have control over their past conduct.
No one should be held guilty of any criminal offence on account of any act which did
not constitute a criminal offence under national or international law at the time
when it was committed. B) Open: laws should be open so that individuals are able
to access them. Laws should not be secret of difficult to locate as this would not
enable the individual to be guided by law. One result of a secret laws is that as
individuals will necessarily be unaware of them, then he will not know that he is
violating the law. C) Clear: laws should be clear and intelligible so that the
individual can understand them. Unclear laws will inevitably confuse the individual
and prevent the law guiding and influence their actions.
In the context of clear and open laws, Merkur Island Shipping
Corporation v Laughton and others [1983] - in an action arising from a trade
dispute between the owners and crew of a ship, members of the international
transport workers federation were sued for damages for losses arising from
secondary industrial action in which they had been involved. Whether the trade
union was immune from tort liability, the court had to construe three statute. Lord
Donaldson MR, reached to a conclusion that the law was tolerably clear, the same
could not be said of the way in which it was expressed. The two principle or Rule of
Law, clear and open is necessary.
2) Laws should be relatively Stable: laws should be relatively stable and not change
too frequently as otherwise individuals could be fearful that the law may have
changed in the intervening period, and so therefore they would be unable to plan
their lives effectively for fear that the law had in fact changed.

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3) The making of particular laws (particular legal orders) should be guided by open,
stable, clear and general rules. For example: particular laws of an ephemeral (short
lived) status (Administrative law making/ delegated legislation) should be passed in
the context of detailed ground rules laid down in framework laws. Thus, Raz views
the above characteristics as not in themselves connected with the substance of the
law itself, but instead with the form of the law. Raz accepts that these
characteristics (open, clear, prospective laws) could be met by a non-democratic
state. (The law should identify the jurisdictional limits to the exercise of delegated
legislative powers.)
4) The independence of the judiciary should be guaranteed. It is the courts that
apply the law and they should do so free from external interference.
5) The principle of natural justice must be observed. The rule against bias and the
right to fair hearing.
6) The courts should have review powers over the implementation of the other
principles. The judges should have power of review over both primary and
subordinate legislation.
7) The courts should be easily accessible. Individual recourse to justice should not
be stuck by excessive delays and expense.
8) The discretion/will of the crime preventing agencies should not be allowed to
pervert/misrepresent the law. (Such agencies should not be able to choose which
laws to enforce and when.)
Rule of law with Diceys perspective. Dicey stated that rule of law was one
of the Pillar on which the British constitution rested. He emphasised the importance
of predominate of regular law in relation to government. He analyse the ways in
which rules were applied in the courts, he analyse that rule of law involved three
distinct principles but they are related. (Limbs)
1) No one should be above the law. (Equality before the law). This implies
that everyone is bound by the law. The law applies to ministers and public officials
as well as other members of society. This is supposed to ensure that public officials
use their power reasonably and do not exceed the limits placed on its use. This
aspect of the rule of law is upheld through administrative law and by the practice of
judicial review.
For example: 1. many of the powers of the PM and other ministers are
based on RP, which is not subject to judicial oversight. 2. As P is sovereign, it can
make, unmake or amend any law it wishes, above the law. 3. Principle of PPrivilege means the MPs and peers are not subject to legal restrictions on what they
say in parliament. 4. Queen as Head of Legal System, in not properly subject to the
law.
In M v Home Office (1994) - a citizen of Zaire required political asylum,
which was refused, as was his application for leave to bring judicial review
proceeding. C made a renewed application and thus the removal could not go
ahead, since the application was processing. But his removal went through, SS.
The secretary of the state had not been entitled to claim Crown
immunity/protection, since an action could be brought against him personally for a
tort committed and an injunction could be granted against him in that capacity. The
injunction had been granted against the Secretary of the state in his official
capacity. Lord Templeman, There is no law that enforce an injunction against a

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minister in his official capacity would, establish a proposition that the executive
obey the law as a matter of grace and not as a matter of necessity.
The Executive cannot lawfully assume powers which are not known to the
courts. In Entick v Carrington (1765) - two kings messengers, acting under a
warrant issued by the secretary of state, broke into the Cs house and carried off his
papers. The action was part of an investigation into certain seditious articles. The C
sued the messengers for trespass. They claimed to have acted lawfully under the
secretary of states warrant.
The warrant was illegal and without effect. The Secretary of state could
invade the rights of a subject only if his action was authorised by law. No statute or
common law right authorised the invasion of Cs house. The argument of the
Secretary of state that the power to issue such a warrant was essential to
government had no validity.
2) No one should be punish except in accordance with the law. (Absence of
arbitrary power). (Concerns: Human rights is not absolute, the P wishes the HR can
be amend if necessary.)
3) The constitution is Pervaded by rule of law. One crucial aspect of the ole
of the law is that judges are meant to be strictly impartial and non-political.
The state does not need to express authority for its actions if they dont breach
common law or statute. In Malone v Metropolitan Police Commissioner [1979]
The C was charged with handling stolen goods. At his trial, the prosecution
admitted that his telephone had been tapped under a warrant from the Home
Secretary and his conversations recorded. He brought proceedings against the
Home Secretary for a declaration that the phone tapping was unlawful.
The tapping of a TP could lawfully be done because there was nothing to
make it unlawful. No statute authorised phone tapping with or without a warrant.
But that did not men tapping was unlawful. A search of premises which was not
authorised by law was illegal because it involved the trot of trespass. But no act of
trespass was involved in TP tapping.