This essay will critically evaluate the extent to which the UK judiciary has demonstrated a willingness to uphold the requirements of the rule of law whilst referring to relevant case law where necessary, in order to access how the judiciary has applied, interpreted and upheld the requirements of this rule.

Having said that, it is important to note that there are two theories to the rule of law. That of a Formal view, more related to Dicey’s definition and supported by theorists such as Joseph Raz and John Rauls, that requires the rule of law to merely provide a framework of laws, so as to make it possible for individuals to be certain of their stand point, and the other of a substantive view advocated by theorists such as Lon Fuller and Ronald Dworkin requiring the rule of law not only to be present and act as a framework of laws but to go beyond and possess an ‘internal morality’, and provide protection for individuals against the state and others. Dicey’s definition has often been scrutinised by substantive theorists as they suggest that it is narrowand fails to address certain circumstances such as dictatorial regimes and corrupt states, where the rule of law is acknowledges but may be misused to enforce crimes and encourage the abuse of power. Ronald Dworkin, in argument for a more substantive view, further stated that the law should be more than just rules and that the basis of law should be on values and fairness.  

It is not only theorists that have illustrated the importance of the rule of law to the UK constitution. Many judges have also expressed their views on this principle. Lord hope in R (Jackson) v Attorney General (2005), referred to the enforcement of the Rule of Law by the courts as being “the ultimate controlling factor on which our constitution is based” and before him Lord Bingham in A and Others [2005] stated that the function of independent judges charged to interpret and apply the law is universally

recognised as a cardinal feature of the modern democratic state, a

Corner stone of the Rule of Law itself.” Arguably, Bingham’s statement suggests that the courts should always have in mind the rule of law when passing judgments and abide to follow its requirements. Bingham in 2007 went further and recommended eight principles that the law should try and achieve in relation to the rule of law. “The law should be accessible, clear and predictable, it should apply to all, it should afford adequate protection for human rights, Legal issues should, ordinarily, be resolved through legal processes and not through the exercise of administrative discretion, individuals should have access to justice in the courts without inordinate delay or expense, public officials including ministers should exercise any powers they have been granted in good faith, and within the limits of those powers, legal and adjudicative processes should be fair and the state should comply with its obligations under international law”. Essentially, the three definitions of the rule of law given by Dicey have been incorporated and extended by Bingham’s principles. Bingham emphasises the importance of Human Rights, suggesting perhaps that he considers the individual to be more of importance than the state an argument that can be supported by the fact that the rule of law and its principles cannot be considered without the presence of the Human Rights Act 1998. Evidently, the purpose of the rule of law, taking into account its various definitions and opinions provided, is to ensure the avoidance of tyranny and governmental abuse of power a suggestion advocated by Professor Jowell. It is further suggested by Adler that Lord Bingham’s principles represent what good law should constitute in liberal societies.

For the rule of law to be upheld, it is important that the executive, legislature and judiciary comply with its principles. This is in essence how the rule of law is connected to the doctrine of separation of powers. The doctrine of separation of powers requires each organ of the government to function independently and therefore allowing them without bias to protect individuals from arbitrary governmental actions and the abuse of power. Lord Templeman advocated this in M v Home Office [1993], when he stated that “ parliament makes the law, the executive carry the law into effect and the judiciary enforces the law.” This further suggests that the evolution of case law and judiciary attitude in relation to the rule of law, has demonstrated a growing willingness of how the judiciary is willing to uphold its principles. Additionally, Dicey highlighted the importance of an independent judiciary and referred to it as being a fundamental aspect of the rule of law, when he stated that,’ the general principles of the Constitution are with us as a result of judicial decisions, in particular cases brought before the courts.” Furthermore, the independence of the Judiciary must be upheld, with members of the Government refraining from criticising the Judiciary. The UK constitution adheres to the rules governing the doctrine of separation of powers, therefore making the judiciary independent and unbiased to the influence of government, this is evident from examples such as judges having security of tenure, their salaries being immune from political interference as they are paid from an independent consolidated fund, and their immunity from civil suits, amongst other numerous illustration of the separation of powers.

An illustration of how the Judiciary has demonstrated a willingness to uphold the requirements of the rule of law can also be found in case law. In Entick v Carrington [1765], the court clearly upheld the key element of the rule of law that the executive must not act arbitrarily: there must always be legal justification for executive action. Lord Camden clearly stated that, “No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing… If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him.” However, in Liversidge v Anderson [1942], the courts failed to adhere to the rule of law as they failed to justify granting discretionary power to the home secretary by depriving Liversidge of his liberty by prioritising Parliamentary Supremacy over the Rule of Law. It is important to note that although the courts reached this judgment, Lord Atkins dissented and therefore upheld the rule of law by arguing the test for ‘hostile association’ required objective proof because of the phrase ‘reasonable cause to believe’ in regulation 18B, and it was not possible for the court to rely on the Home Sec’s word alone as this was properly a matter for the court to decide upon. The courts also upheld the rule of law in Burmah Oil Co Ltd. v Lord Advocate [1965], resulting in, the UK government passing the War Damage Act 1965. The government in this circumstance, contravened with the principles of the rule of law, as its actions were retrospective.

The rule of law was further upheld by Lord Denning in IRC (Appellants) v Rossminster Ltd. (Resp’ts) [1980], however his judgment was later overturned by the House of Lords on grounds of vagueness and uncertainty of of the Taxes Management Act 1970.  In M v Home Office [1993], the Home secretary was found to be in contempt of court and the judiciary upheld the principle of the rule of law, as it was apparent that the law applies equally to all. A and Others v SoS Home Department [2004], further illustrated the willingness of the judiciary to uphold the rule of law. It is evident from the decision reached in A and Others, that the judges in 2004, were more willing to uphold the rule of law in comparison to those in the Liversidge case in 1942 despite both cases being at a time when there was a ‘public emergency threatening the life of the nation.’  

All things considered, it is arguable that the UK judiciary currently follows Howard’s (2013) suggestion, that legal limits be in place to ensure that the government and public bodies do not operate above the law and furthermore that citizens be treated in a fair manner by public bodies as required by the rule of law, as illustrated above by case law, the judiciary, clearly show a willingness to uphold the requirements of the rule of law. It can further be noted that due to the changes in the constitution, and the separation of powers, the judiciary is in a better position to uphold the rule of law.

Bibliography

Textbooks

Alder, John. Constitutional & Administrative Law. 9th ed. Basingstoke, Hampshire: Palgrave MacMillan, 2013. Print.

Costigan, Christopher, Neil Hurden, and Alex Lawson. GDL &LLB Cases And Materials On Constitutional And Administrative Law. 4th ed. London: Bpp Learning Media Ltd, 2014. Print.

Howard, Nick. Beginning Constitutional Law. Abingdon, Oxon: Routledge, 2013. Print.

Pollard, David, Neil Parpworth, and David Hughes. Constitutional And Administrative Law. Oxford: Oxford University Press, 2007. Print.

Cases

A & Ors v. Secretary of State for the Home Department [2004] UKHL 56 

Burmah Oil Co Ltd. v Lord Advocate 1965

Entick v Carrington & Ors [1765] EWHC KB J98 

Jackson & Ors v. Her Majesty's Attorney General [2005] UKHL 56

Jackson & Ors V. Her Majesty's Attorney General. 2005. Print.

Liversidge v Anderson [1941] UKHL 1 

Websites

Ki-moon, Ban. 'United Nations And The Rule Of Law'. Un.org. N.p., 2015. Web. 28 Apr. 2015.

Legislation

Taxes Management Act 1970

War Damage Act 1965

Journals

The rule of law, The Sixth Sir David Williams Lecture, Cambridge Centre for Public Law, 19 April 2015,

www.cpl.law.cam.ac.uk/.

Stewart C, 'The Rule of Law and The Tinkerbell Effect: Theoretical Considerations, Criticisms and Justifications For The Rule Of Law' [2004] 4 () Macquarie Law Journal <digitalcommons.lmu.edu> accessed 28 April 2015