Explain the theory of the Rule of Law which you prefer. Analyse the extent to which the Rule of Law requires access to justice. Consider the extent to which judges should defend access to justice because of the Rule of Law

On the other hand, Lord Bingham provided another explanation of the rule of law. However, some of the principles of this conception are arguably similar to Raz’s theory. For example, one similar principle is that the law should be clear and accessible. Also, both Bingham and Raz mentioned the fact that the court process should be fair. However, the Bingham’s theory differs from Raz’s in that Bingham argued that legal questions should be normally resolved by applying the law rather than discretion. This challenges Raz’s conception of the rule of law because Raz, on the other hand, argued judges should have their independence when making their decisions, suggesting that they should be able to use their discretionary powers when making decisions.

It could also be argued that Bingham’s explanation of the rule law is also similar to Dicey’s theory to an extent. For instance, Bingham acknowledged that the law should apply to everyone. This reflects Dicey’s second element that no one is above the law. However, Bingham then challenged Dicey by adding that the law may not always apply to everyone if objective differences can justify treating people differently. This challenges Dicey’s theory as it implies that there may be situations where the law cannot be applied to certain people, such as young children. Another principle that Bingham identified, which is similar to Dicey’s theory, is that the law must provide adequate protection of human rights. This is linked to Dicey’s third element that judges can protect individuals’ liberty. However, another principle that Bingham mentioned, which is contrary to Dicey’s third element, is that the government should use their powers reasonably and honestly for the right purpose. This challenges Dicey’s third element because it suggests that government officials can interfere with people’s liberty as long as it is reasonable and this was shown in IRC v Rossminster.

So, it is clearly evident that the rule of law can be interpreted in different ways. However, each approach to the rule of law has its weakness and therefore can be criticised. For example, Dicey’s second element of the rule of law seems to lack validity to some extent because some people, such as judges, children and diplomats, are not necessarily affected by ordinary law.
Also, Bingham’s principle that the law should be applied in order to resolve legal questions can be criticised because in real life, some judges need discretion in order to achieve a fair outcome.
In addition to this, Raz’s principle that laws should be prospective could be challenged because there are cases where retrospective legislation produced fair and just outcomes as it was shown in R v R. Nevertheless, it appears that Raz’s theory is a more favourable approach to the rule of law as more of his principles seem to be applicable to real life compared to Dicey’s or Bingham’s principles of the rule of law.

It has been argued that the rule of law requires access to justice. Justice, in its basic sense, refers to fairness. According to Raz’s theory of the rule of law, laws should be prospective. Some have argued that this principle aims to achieve justice because if the law is retrospective, it could lead to unfair outcome as it was illustrated in Burmah Oil v Lord Advocate. However, there have been cases where retrospective law have provided fair outcome such as in the case of R v R, where it was decided that even a married man can be liable in courts for raping his wife, so prospective laws are not necessarily the only type of laws which require access to justice.

Another principle that seems to require access to justice is that judges should have their independence when making their decisions. It could be argued that if judges use their discretionary powers, fair outcomes could be reached in courts as it was shown in M v Home Office.  However, those who favour Dicey’s theory of the rule of law may challenge this principle as they may argue that using discretionary powers is contrary to Dicey’s second element of the rule of law as it could lead to judges exercising powers beyond the limits they are given and so it cannot be fair for judges to be given such power. Also, this principle is contrary to Bingham’s idea that legal questions should be resolved by applying the law and not discretion, so those who favour Bingham’s theory may argue that justice cannot be achieved if discretionary powers are used because it contradicts one of the fundamental principles of the rule of law.

Another principle of Raz’s theory which seems to require access to justice is the idea that courts should be accessible. One may argue that if courts are not accessible, then people cannot be treated fairly as the judges would not be able to provide them with effective remedies as it was shown in R v Secretary of State for the Home Department, ex p Leech, where a prisoner was denied access to his solicitor and was therefore not able to bring civil actions. A case that illustrates that access to courts can achieve justice is the case of Anufrijeva, where it was decided that Anufrijeva was still entitled to her income support because she was not given notice that her income was to be cancelled.

So, it seems that Raz’s theory does require access to justice. However, those who prefer Dicey or Bingham’s conception may not necessarily view Raz’s theory as requiring access to justice because some his principles contradict what is seen as ‘just’ according to Dicey or Bingham’s approach.

It has been argued by some that judges should defend access to justice because of the rule of law. Those who prefer Raz’s theory may argue that judges should aim to achieve natural justice. For example, suspected criminals should have the opportunity to explain their side of the story because everyone is presumed innocent until proven guilty.If judges make their decisions without considering all the factors then this could lead to a miscarriage of justice which would be contrary to Raz’s understanding of the rule of law.
However, there are others who argue that repeated offenders should not be given the opportunity to explain their side of the story. For example, if someone is repeatedly convicted of robbery under s8 of the Theft Act 1967, judges should negate the natural justice principle and just punish the offender as this prevents the defendant from trying to get themselves out of trouble.

Another principle that suggests that judges should defend access to justice is to do with access to courts. It could be argued that judges should defend a person’s liberty, and in order for them do to so, they should allow litigants to get access to legal aid. If the state denies individuals to have access to legal aid, then this could mean that those people, who are from a poor family background, may not be able to take the government to court, implying that the government would be able to do whatever they want to violate a person’s human rights.
However, having said that, it has been argued that criminals should not be given legal aid because only it should only be given to those people who deserve it. Nevertheless, this argument has been challenged because it has also been suggested that some criminals may not be treated fairly in prison, so they should get access to legal aid.

However, even if legal aid was available, not every case in court will have a fair and just outcome as it was shown in Malone v MPC. Also, judges may not be able to defend access to justice because they cannot ignore an act of Parliament as it was shown in IRC v Rossminster.

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