Does the doctrine of the rule of law have a sufficiently certain meaning to be a useful guiding

principle of UK constitutional law?

The rule of law is one of the most fundamental concepts within the constitutional laws of various

countries and it has a particular significance within the domain of UK constitutional law. In simple

terms, the concept of ‘rule of law’ indicates that it is law that rules over the various citizens and

bodies present within a state. Thus, the concept of rule of law is believed to ensure equality

between all and to ensure the protection of rights of individuals from abuse by others or even by the

State.

However, there is no one set meaning of the term ‘rule of law’ and various different definitions have

been attributed to the concept. The most elaborate version of the meaning of rule of law has been

provided by Lord Bingham and his definition of rule of law is an eight limb criteria which ranges from

such aspects as; That the law must be clear and intelligible; The law must not be applied in a

discretionary way; the law must ensure the protection of rights of individuals and must keep in

accordance with the standards of international law, etc. This highlights that rule of law is not a

concept which can be summed up in a single sentence but is one which has various features to it and

which can have various consequences in practice.

Over recent years, there has been a theoretical debate over whether the rule of law is a ‘content-

free’ or a ‘content-rich’ concept. A content free definition of the rule of law indicates that the rule of

law is more of a procedural device and is related to the question of how the law is made rather than

what the content of the law is. On the other hand, a content rich version of the rule of law stresses

upon certain substantive fundamental human rights which the law should contain before it can claim

any legitimacy over its subjects. Therefore, to advocates of a content free version of the rule of law,

such as Joseph Raz, the rule of law means nothing more than that the exercise of law making should

be based on certain features such as the clarity of law and the opportunities that are provided to the

subjects to have access to it. This version does not focus much on the kinds of protection that the

law offers but the kind of forums and access it provides to the subjects. On the other hand, a

content rich version advocates for a more substance oriented view over the meaning of the rule of

law. For example, Ronald Dworkin is of the view that the rule of law also ensures protection of

certain fundamental rights without which no matter how good the quality of law-making might be,
the rules would still not have the eligibility to claim themselves as laws. Therefore, laws which might

not comply with ideas of common morality such as the right to life or the freedom to live according

to one’s will, etc. would not qualify as law according to such a content rich reading of the rule of law.

Lord Bingham’s criteria of rule of law is a mixture of both the content free and the content rich

versions since it stresses on the way that the law is made (for example, it must be clear) and also on

the substance of the laws themselves (for example, the laws are to preserve human rights and be in

accordance with international law standards).

One of the most authoritative definitions of the rule of law is believed to be the one enunciated by

A.V. Dicey. Dicey advances a three limb criteria of the rule of law; No man can be made to suffer

unless there has been a distinct breach of law by him; no man is above the law and all men are to be

treated equally and finally the protection afforded to men in English law is the consequence of the

common law established in the various case law precedents.

However, Sir Ivor Jennings disagrees with Dicey’s views since he believes that the law does not treat

every individual equally. There are examples such as that the Crown is immune from prosecution,

ministers can make delegated legislation that ordinary citizens cannot and parliamentary privilege,

etc. In addition, the common law does not always protect fundamental rights. For example in the

case of Malone v MPC, the House of Lords refrained to uphold the claimant’s privacy claims against

phone tapping of his calls by the executive.

Interestingly, there have also been theorists who dispute whether the rule of law is a useful concept,

such as JAG Griffith since he argues that law is man made and making a man made thing superior to

men that themselves made the law would go against the will of the people and would also maintain

the status quo rather than enabling a change in the law when it is considered desirable.

Therefore, there are serious disputes as to a single meaning that could be given to the rule of law.

In addition, it also needs to be evaluated how much protection the organs of the state provide to the

ideal of the rule of law in practice.

Coming to judicial protection of the rule of law, certain cases need to be evaluated in order to

ascertain whether Dicey’s claim that the protection of rights is a consequence of case law is valid or

not. There are cases such as Entick v Carrington which highlight that judges have in the past been
willing to uphold individual rights against intrusion from the state. For example, in Entick a search by

the police which was not authorised under a warrant and which was carried out extensively was

declared to be illegal and it was said that that which is not authorised by the law is deemed to be

illegal. However, in the later case of Malone, it was said that English law does not disallow that has

not been expressly allowed and so just because there was no law which authorised the Home Office

to tap into the claimant’s private phone calls did not automatically made the act of tapping illegal.

Likewise in the GCHQ case, although the House of Lords suggested that the exercise of prerogative

powers by ministers were subject to judicial review, matters of national security were non-justiciable

and therefore not open to exercise of jurisdiction by the courts. However, newer cases decided

under the Human Rights Act 1998 indicate that courts are now more willing to uphold rights of

citizens even in the teeth of objections by the State (A v Secretary of State for the Home

Department, R v Davis) or even if such rights appear contrary to national law (R v A, Mendoza v

Ghaidan, ex parte Pierson).

Secondly, while considering the Parliament’s role in upholding the rule of law, the doctrine of

Parliamentary sovereignty indicates that Parliament can pass whatever laws it wishes regardless of

their impact on individuals rights. For example, in the case of Burmah Oil v Lord Advocate, where the

courts had granted an award of damages to the claimant against the executive, the Parliament

enacted retrospective legislated which annulled the Burmah Oil decision, thereby undermining the

rights of the claimants in that case. However, since the enactment of the HRA, the Parliament does

strive to keep its laws in accordance with the ECHR. There is a Joint Select Committee of Human

Rights within the House of Commons which reviews legislation for its compatibility with the ECHR

and following declarations of incompatibility by the courts, the Parliament has proved itself willing

to change the law (Belmarsh cases).

Whether the executive protects the rights of individuals is a controversial matter. There is a duty on

all executive bodies and government departments under section 6 of the HRA to act in a manner

which is compatible with the ECHR. However, Andrew Le Sueur indicates that the restriction of the

Lord Chancellor’s powers under the Constitutional Reform Act 2005 was an attempt to undermine

the significant role that the Lord Chancellor had played in upholding the rule of law within the
Parliament, Cabinet and the Government and so, although the CRA refers to the constitutional

significance of the concept of the rule of law within its first section the motives behind its enactment

seem questionable.

To sum up, it could be said that there are a lot of differences of opinion over the meaning of rule of

law as it has different versions ranging from content-free to content rich ones and within the

established meanings attributed to the rule of law, such as the one advocated by Dicey, there are

various disagreements as to their correctness. Certainly, judicial protection of the rule of law, even

though active following the HRA has been inconsistent as highlighted by the cases mentioned above.

In addition, the Parliament’s unfettered powers to contravene individual rights pose a constant

threat to the rule of law. However, given the fact that under the HRA, the executive is under a duty

to act compatibly with the ECHR and that the Parliament has Committees to review the quality of its

legislation indicates a commitment by the UK to uphold the rule of law even though the precise

meaning of it is yet to be determined.