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, taking into account the issues raised by the quotation above.
The rule of law is an important aspect of the UK constitution. Its function is control the abuse of powers by governments. The term ‘rule of law’ is ambiguous in that it can mean different things to different people, thus making it rather difficult to give it an objective meaning. The conception of the rule of law can be interpreted in a formal or substantive sense.
The formal conception is concerned with how laws are passed, such as whether they are made by ‘properly authorised people’, exercising their law making powers within the limits set out by the law. However, this approach is not concerned with the actual content of the law. Meanwhile, the substantive conception acknowledges the formal attributes of the law but it is also concerned with its content. According to this approach, certain fundamental values, such as the protection of human rights, are important aspects of the rule of law.
Professor Dicey proposed an explanation of the rule of law. According to him, it consists of three elements. The first aspect is that individuals should only be punished in ordinary courts if they violate the law. Dicey stated that the rule of law reflected ‘the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government’. Lord Bingham supported this principle as he argued that wide discretionary powers would lead to arbitrariness which is against the rule of law.
The second element is that no one is above the law. Everyone should follow the law regardless of their status because the law applies to everyone equally. This principle was illustrated in Entick v Carrington, which showed that even the government can be liable in courts if they go beyond the law.
The third element of the rule of law is based on the idea that a person’s personal liberty is as a result of judges’ decisions in courts. Again, the case of Entick v Carrington provides support for this principle as Entick relied on the judge’s decision to protect his liberty, instead of relying on a ‘constitutional guarantee set out in a Bill of Rights.’
Alternatively, Professor Joseph Raz provided a different explanation of the rule of law. He established some of the basic principles and values contained within the rule of law.
One principle is that all laws need to be prospective, open and clear. This principle, to an extent, reflects Dicey’s first element of the rule of law in that it recognises that retrospective law is not good law as it may lead to arbitrariness.
Another principle is that natural justice should be achieved; judges should act in fair way when making their decisions and individuals should be able to have a fair hearing. This principle is supported by Article 6 of the Human Rights act 1998 which states that ‘everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’.
Another principle that Raz identified is that courts should be accessible. Individuals should be able go to courts so that judges can ‘provide an effective remedy’ for the individual. This principle seems to be linked with Dicey’s third element of the rule of law because if the courts are accessible, judges may be able to protect people’s liberty as it was illustrated in Malone v UK. However, having said that, it could be argued that this principle also challenges Dicey’s third principle because being able to access the courts does not necessarily mean that the judges will be able to protect people’s liberty as it was shown in Malone v MPC.