What is the rule of law? Critically assess the extent to which the United Kingdom upholds the rule of law. The rule of law can be defined in a variety of ways. The majority believe that the rule of law refers to equality, that everyone is to be treated equally under the law and that no one is above the law, regardless of position in society. Therefore the law applies to everyone without exception, and that includes the Monarch and Parliament. The difference between “rule by law” and “rule of law” is vital. Under the rule “by” law, the law is an instrument of the government, which is above the law. In contrast, no one is above the law, under the rule “of” law, not even the government. Another view of the rule of law is in its moral philosophical context.
To ask whether the rule of law is morally good, and does it meet the criteria to say that it is morally good, or does it mask a variety of actions that do not meet these moral standards. Lastly, the rule of law can be seen in a political sense; the law and subject shall rule that government to it, not only to be accountable for its actions but also to ensure that these actions are legal. Thus, the rule of law is not just a principle but actually controls some of today’s society, such as its imperative use in the courts.
The first definition of the rule of law given is the one I intend to discuss and elaborate on further. I will critically assess how factually the UK meets that threshold of what it is to uphold the rule of law. Historically the rule of law was influenced by the Magna Carta document, which put a restraint on the monarch’s power. It ensured that the King was bound by law and went with the concept of the rule of law that no one is above the law. The rise of Parliament in the fourteenth and fifteenth centuries modified this theory of the supremacy of the law. It combined it with the doctrine of the supremacy of Parliament and thus meant that the law was supreme, but Parliament could change and modify it1.
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In present-day Parliament has even more power than ever, with parliamentary sovereignty and royal prerogatives within their grasp that suit their own needs and thus manipulate the rule of law. Nevertheless, Parliament is sovereign and, therefore, a supreme lawmaking body, entitles it to do acts that can not be invalidated. Moreover, there is a common law that courts have no authority over the acts passed by Parliament and can not regard them as unconstitutional, so if Parliament was upholding the rule of law, then surely its supremacy was enabled them to pass an act to change this constitutional rule and therefore hold them more accountable to the law.
However, they have chosen not to do this, ensuring that they remain unchallenged and therefore not upholding the rule of law as they have placed themselves above the law in that courts can not dispute the acts they pass. From this, it would seem that the United Kingdom does not uphold the rule of law in that it fails to ensure that Parliament is not above the law. The courts, however, are not submissive to Parliament; they do question their decisions as highlighted in the case A and Others V Secretary of State for the Home Department . This case tries to illustrate the ‘limit’ between Parliamentary sovereignty and the power of the courts. Parliament issued s.23 of the Anti-terrorism and Crime and Security Act 2001, which enabled them to hold non-UK nationals without trial, which went against the ECHR.
The courts argued that it breached Article 5 of Human Rights Act 1998 that “everyone has the right to liberty and security of person”2 The court did not challenge the politics involved as they agreed that that was not their place; however, they did enforce the legislation claiming that s.23 of ATCSA was not proportionate to the threat. Although unable to completely strike down the Act, Parliament had to issue a derogation order which allowed them to withdraw from certain prohibitions of the ECHR. Parliament had to give reasons for the derogation order and is therefore by the rule of law, that Government needs legal authorization for its actions, as agreed with by Dicey when he states that “every official from the Prime minister down to a constable or collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen.” 3
This ensures the national stability and security of citizens and concurs that no one is above the law, and consequently indicates that the UK, although not wholeheartedly, does uphold the rule of law to some extent. Parliamentary sovereignty is a threat to the rule of law and should be limited to achieve the rule of law; for example, when Parliament passes an act enabling detention without trial, this is against the rule of law. Law should be superior to political power. Otherwise, a dictatorship could exist and justify atrocities just because it has the power to do so. Ultimately it is the rule of law that stops a democracy from descending into an elected dictatorship.
To perform its task, the judiciary has to be and seen to be independent of government. Unless the public accepts that the judiciary is independent, they will have no confidence in the honesty and fairness of the courts’ decisions.4 One of the main principles of the rule of law is that everyone is equal under the law, and because of that, everyone has the right to a fair trial. So the judiciary can not be seen to influence or affected by any other government body to uphold the rule of law. For example, the Nuremberg trials were not fair, as they were not independent of any other body. They had to follow the point of the London Charter, which went against what would be seen as a fair trial by today’s standards.
Universal laws, such as the rule of law, would ensure that corrupt governments could not enforce their ideas within the law, for example, when the Nazis were in government and made laws that went against the philosophical good. If they had followed the rule of law, they would not have had the power abuse that took place. F. A. Hayek states that rule of law “means that a government in all its actions is bound by rules fixed and announced beforehand — rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan one’s individual affairs based on this knowledge”5. In criminal law, there is a prohibition on “ex post facto” laws, that is, no one should be punished for a crime not previously defined in law.
The rationale for this principle is that, first, the government should not be allowed to abuse its power by punishing individuals for political or other conveniences; second, it would be grossly unjust and oppressive for the government to punish someone for behaviour that was not known to be criminal at the time of commission; third, to so punish individuals would result in so many uncertainties that it would create great inefficiencies.6 The Nuremberg trials have gone completely against this principle. Still, they claimed that a defence that stated that the defendant was following the laws at the time was not sufficient as it went against natural law, moral judgement and most importantly, the rule of law.
However, the legal basis for the Nuremberg trials was established by the London Charter, an organization that existed only from 1945-1949, which set up the trial procedure and defined the crimes for which the defendants were to be tried. The fact that the court had arguably no jurisdiction and no neutral judge/prosecutor, and we’re trying the defendants on foreign land using hearsay evidence without right of appeal, did not seem to make anybody question where the rule of law was in this trial. This puts the legality of the Nuremberg trials into question. However, men were still sentenced to the death penalty, even when the London Charter was, ironically, ignoring the rule of law, which depends on the role of trial by jury and the impartiality of judges.
At this point in history, it is clear that the UK did not uphold the rule of law. However, this can be understood; as there was a great outcry to see people punished for the events that happened, it seems almost fair that a government-run without the rule of law should be tried without the rule of law applied to the court involved. Historically, it is shown that the UK did not uphold the rule of law, but in 1998, the UK signed the ECHR and, in effect, ensured that the rule of law was a basic doctrine in all of Europe. The Human Rights Act reflects the rule of law in nearly all of its articles, and as the UK has signed it, it indicates that it supports this idea. However, it does delegate away from it when it deems appropriate, as shown in A v Secretary of State .
The Human Rights Act increased the scope for courts to intervene, thus making the government, including Parliament, conform to the rule of law. Therefore to this extent, the UK is upholding the rule of law. Sovereignty comes from constitutional arrangements given to Parliament by law. As long as they follow the rule of law as a basic principle, there is no reason for them to put their authority into action. However, Parliament is not completely liberated to do as it wishes. Europe puts limits on Parliament’s power as indicated by the derogation order, where they had to state reasons for their actions. Although they still got the same objective, they went about it legally, and are thus compatible with the rule of law, that no individual, however powerful, is above the law.
The Royal Prerogative powers that government possesses fall into the same category as Parliamentary sovereignty. They are powers that enable the government to act without other authority, apart from the royal ascent in some cases. The government can exercise prerogative powers to deploy and use Armed Forces overseas, dissolve Parliament, make and ratify treaties and other major deeds. In actuality, this is against the rule of law as they can do all of these actions and not be held accountable in that they will not be required to go to a court of law to justify their actions should they have gone terribly wrong. The powers cannot be exercised without restraint.
The 1689 Bill of Rights formally curtailed the powers of the Crown by legislating to remove or outlaw several ancient rights of the Crown, and subsequent statutes and conventions have limited them further.7 Even so, the fact that governments have these powers indicates how the rule of law hasn’t quite reached all aspects of the United Kingdom. How the UK does uphold the rule of law is how we follow Dicey’s example of the rule of law that “No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of the law established in the ordinary legal manner before the ordinary courts of the land … [And] that every official from the Prime minister down to a constable or collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen”8
Although Parliamentary sovereignty seemingly goes against this, it does have to justify its actions and therefore is by the rule of law. The rights protected by the ECHR and enshrined in the Human Rights Act 1998 are followed by the UK, such as the prohibition of slavery and right to education, however rights, such as the right to marry and the prohibition of torture, some seemingly easy acts to follow, cause much controversy within the UK. For example, the right to marry has caused huge debates over homosexual’s right to marry. Although illegal and non-existent in the UK, the prohibition of torture has been proved that the UK uses places overseas to extract information out of potential extremists. In this sense, the UK is not upholding the rule of law. However, the fact that it is upheld within the UK (regardless of policies that the UK enacts abroad) suggests that it strictly uphold the rule of law, as it gives people the right to a fair trial and no punishment without law.
The right to a fair trial can be questioned. All judges are biased; it’s natural and a part of a person’s upbringing, therefore. However, can judge really be impartial, and therefore, can we actually have a fair trial. The Nuremberg trials were an obvious indication of a bias courtroom supplied with allied representatives, who took the place of judge, prosecutor and defence. However, in the present day, this would not happen. As stated earlier, although they would be a biased jury and judge, this would not necessarily impact a defendant’s outcome, as the jury has to decide their outcome purely on the evidence provided. Although hearsay evidence was allowed in the Nuremberg trials, this would not be acceptable today, especially after the Criminal Justice Act 2003, and therefore coincides with the rule of law that everyone has the right to a fair trial.
At the heart of British citizenship is the idea that society is based on laws that contain basic principles that ensure the individual’s rights and that these rights are balanced proportionately with the collective good. The Human Rights Act provides a preliminary set of shared values to which all countries and communities can subscribe. The rights and freedoms set out in the act are not tied to any particular belief system but share the basic principles common to most of the democratic world.9 They allow basic rights such as the freedom of expression. However, simple rights such as these still lead to abusive manipulation of the rights. For example, giving freedom of speech and the printed word has led the media to exploit this and, in some cases, has been viewed as assisting terrorism by spreading propaganda.
Yet freedom of expression is just an extension of the rule of law, and therefore if the rule of law can be used as a component to aid corrupt and immoral actions, then to some, it would seem as if the rule of law should not be present in the UK’s system. Another factor that aids the argument that Britain does not uphold the role of law to the extent that it could is that it does not have a separation of powers, which would be an affective constitutional device for achieving the rule of law. The separation of powers involves the state is separated into three distinct branches; the executive, the legislative and the judicial.
All branches are elected separately and thus makes it fair and balance; however, in Britain, there tends to be more of a ‘fusion of power’ in that the individual roles of the branches merge; this could be because flexibility is needed for modern society or it could be that Britain has an unwritten constitution. However, if the UK were to accept a separation of powers, supporters of this idea believe that it would protect democracy and prevent tyranny. Opponents of this theory, such as Professor Charles M. Hardin, have pointed out that, regardless of whether it accomplishes this end, it also slows down the process of governing, promotes executive dictatorship and unaccountability, and tends to marginalize legislature.10
However, the separation of powers without assistance from other systems does not ascertain the rule of law. Still, the rule of law can not be fully operational without a separation of powers. To ratify this, one would need a parliamentary system that ensures parliamentary sovereignty, much like the UK. As stated earlier, although it does upturn the balance of power, it also ensures that Parliament can overlook legislation and retain its ability to remove the executive. All branches of government will still be subject to law, and as a sovereign body, Parliament can change these laws. However, it can not violate the law or ignore parliamentary procedure, which keeps the rule of law active.
The fact that the UK has this political system shows that it does uphold the role of law in some sense. Still, due to the sovereignty of Parliament, the rule of law could easily be ignored, and ’emergencies’ that arise in Britain could well be the basis for the rule of law being mistreated. On But, one hand, I believe that it is necessary for Parliament to have this power, as I feel that in this present time, they would be unable to abuse their power due to Britain’s citizens, and more importantly, the European Union.
In conclusion, it can be said that the United Kingdom does uphold the rule of law, as everyone is subject to law, everyone is treated equally under the law, and law regulates the government. To However, toat extent does the UK uphold the rule of law is another matter entirely. The governments’ prerogative powers, parliamentary sovereignty, the ability to derogate away from the Human Rights Act, and the lack of separation of powers result in the UK barely meeting the minimum standards for the rule of law.
However, the fact that we have the Human Rights Act, that we have put trust into Parliament to make the correct decisions and not to abuse its power, and proposed bills such as the Governance of Britain, which aims to reduce prerogative powers and make the government more accountable all indicate that the rule of law is an imperative factor, and shows that the United Kingdom appears to want to integrate the rule of law further into its constitution.
- Allen, Michael. Thompson, Brian (2005) Cases and Materials on Constitutional and Administrative Law 8th Edition, Oxford University Press
- Brown, Gordon (2007) The Governance of Britain
- Constitutional and Administrative Law, Materials Pack LW503 (2007/2008)
- Dicey, A. V. (1885) Introduction to the Study of the Law of the Constitution (online) available at: http://www.constitution.org/cmt/avd/law_con.htm (Accessed on 4th December 2007)
- Douglas, Kmiec (1991) The Review of Politics, Debating Separation of Powers, Cambridge University Press. 53 (2), 391-396
- Hayek, Friedrich (1994) The Road to Serfdom. Chicago: University of Chicago Press.
- Jayawickrama, Nihal (2004)The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence. Cambridge University Press.
- Li, Bo (2000) What Is Rule of Law? (online), available at: http://www.oycf.org/Perspectives/5_043000/what_is_rule_of_law.htm (Accessed on 5th December 2007)
- Raz, J (1977) The Rule of Law and its Virtue 93 LQR
- Tamanaha, Brian (2004) On The Rule of Law History, Politics, Theory. New York Press
- Unknown. (1999) Interpreting the Rule of Law. International Journal for the Semiotics Of law. Springer Netherlands. 12 (4), 445-461
- Woolf (2004) Department for Constitutional Affairs, The Rule Of Law and a Change in the Constitution (online) available at: http://www.dca.gov.uk/judicial/speeches/lcj030304.htm (accessed on 4th December 2007)
- Allen, Michael, Thompson, Brian-Cases and Materials on Constitutional and Administrative Law, pg. 164
- Constitutional and Administrative Law, Materials Pack 5, pg 91
- The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence- Jayawickrama, Nihal, pg 821
- Hayek, Friedrich-The Road to Serfdom, pg 80
- The Governance of Britain, pg 17
- The Governance of Britain, pg 60
- The Review of Politics, Vol. 53, No. 2, pg 391-396