Rule of Law

        Lord Bingham’s second sub-rule affirms that legal issues should be resolved by application of the law and not the exercise of discretion. Despite Dicey’s hostility to the exercise of discretions, this sub-rule is not strictly followed. For instance, it has been a practice in the immigration field to invite the Secretary of State to exercise his discretion to grant leave to enter or remain to applicants who do not meet the requirements laid down in the immigration rules for entry. Discretion should be narrowly defined and its exercise wholly capable of a rational justification, as broadly-textured discretions would allow greater scopes for uncertainty and subjectivity, the idea of which would go against the concept of the rule of law.

The third sub-rule states that ‘the laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.’ Whilst special provision can be made for categories of people such as the mentally ill, it would be incompatible with the rule of law to differentiate people according to, for instance their hair colour, upon legislation. What is acceptable within this sub-rule is best exemplified in the immigration field, as the position of a non-national with no right of abode and that of a nation with a right of abode is obviously different. In this instance, a distinction has been made and accordingly, differentiation relevant to it is inevitable.

The next sub-rule concerns the issue of human rights, that ‘the law must afford adequate protection of fundamental human rights.’ This has not been specified by Dicey himself, as Professor Raz argues, ‘A non-democratic legal system, based on the denial of human rights… may, in principle, conform to the requirements of the rule of law.’ Lord Bingham discards this notion, accepting the idea that ‘it is essential, if man is not to be compelled to have recourse… to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.’

It is also stated that ‘means must be provided for resolving… bona fide civil disputes which the parties themselves are unable to resolve.’ Such a claim recognises the right of unhindered access to a court as a fundamental right, which, when accepted, poses the question of how the less well-off are to assert his or her rights at law. This was addressed through the Legal Aid scheme in 1948. However, the exponential rise of the cost of this scheme led to its entailment. Successive governments have insisted that the cost of running the courts should be covered by its litigants, the danger of which, again, is that such a system may disable the less well-off from obtaining the necessary legal services.

One of the core principles of the rule of law, that ‘ministers and public officers… must exercise the powers conferred on them reasonably,’ is highlighted in this lecture as Lord Bingham’s sixth sub-rule. The importance of the separation of powers is established as it remains the role of the courts to check excesses of executive power. This inevitable tension between the executive and the judiciary, although often negatively portrayed by the media, is the fundamental mechanism from which the strength of the British constitution is derived.

The penultimate sub-rule states that ‘adjudicative procedures provided by the state should be fair.’ Decisions should be made by adjudicators who are independent- in the sense that they are free to decide on the legal merits of the case as they see it, free from external pressures or influence- and impartial- in that he is to be unbiased and open-minded, so far as humanly possible. The general arguments in favour of open hearings are similar, and application of this sub-rule to most civil procedures would be unproblematic.

The existing principle of the rule of law ‘requires compliance by the state with its obligations in international law, the law which… governs the conduct of nations.’ The first President Bush echoed this point in 1990, speaking of a new world where ‘the strong respect the rights of the weak.’ A revealing comparison between the procedures of the Suez invasion of 1956- wherein the legal considerations were at best peripheral- and the 2003 war on Iraq- where the question regarding the lawfulness of the invasion was, as is well known, raised, the rule of law has indeed gained ground.

Essentially, Lord Bingham argues of the necessity of democracy as a criterion of the rule of law. Rule of law is said to depend on, ‘an unspoken but fundamental bargain between the individual and the state.’ It is also stated that ‘the individual living in society implicitly accepts…the constraints imposed by the laws properly made because of the benefits which, on balance, they confer,’ an idea of which has been the fundamental core of our society and its legal system.

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