Explain the meaning, significance and application of the rule of law in the context of the British constitution.

The rule of law is one of the two principles on which the British constitution is based. Why is it such an important and fundamental part of the constitution of the United Kingdom? What is its meaning? On what does it depend? How relevant to the twenty first century British politics, legal system and society is the rule of law? What is its critical feature? And what is the international aspect of the rule of law being such an essential part of the UK constitution? All these questions seek to find the meaning, significance and application of the rule of law in the British constitution. This essay is going to answer them and explain the essence, importance and operation of this principle in the United Kingdom. In its essence the rule of law is the principle that no one is above the law.1 Dicey popularized the phrase rule of law which use goes back to the 17th century.2 The Dicey` s exposition of this concept, which was first propounded in 1885 in his book An introduction to the study of the law of the constitution, has created a great deal of controversy since then. Dicey stated that the rule of law comprises three elements. They are the fundamental idea that no one should be punished except for a breach of the law as established in an ordinary legal manner before the ordinary legal courts of the land, the legal conviction that no one should be above the law and the legal application which states that it is through judicial decisions that an individual can seek a determination of his rights.3 In other words, Dicey` s definition of the rule of law reflects the hegemony of the law above arbitrary power. During the last century many legal and political philosophers and theorists have thrown doubt on the meaning of this principle. John Finnis defined the rule of law as the name commonly given to the state of affairs in which a legal system is legally in good shape.4 In his work The authority of law:

1 2

Anthony Bradley & Keith Ewing Constitutional & Administrative law (Pearson 2011) 93. Thomas Bingham The Rule of Law (Penguin 2010) 3. 3 Albert Dicey An Introduction to the Study of the Law of the Constitution (1885) Part II.
4

John Finnis Natural Law and Natural Rights (Biddles Ltd.1980) 270.

Essay on law and morality Joseph Raz commented on the tendency to use the rule of law as a description of the positive aspects of any political system.5 Another legally qualified author called Brian Tamanaha described this principle as an exceedingly elusive notion that gives birth to a rampant divergence of understandings in the idea of the Good in the sense that everyone is for it, but have contrasting convictions about what it is.6 From all this follows that the meaning of this concept has to some extend evolved over time and is without doubt likely to continue to do so. Taking into account the evolving nature of the rule of law, it should be determined how relevant to the twenty first century this concept is. Supporters of a written and codified constitution believe that in this time when the society has its liberties more entrenched by the government, the rule of law is more important than ever.7 Unlike most other countries, Britain does not have a codified constitution. This means that there is no formal document that sets out the arrangements by which it is to be governed, nor does it have a set of core values by which the state is to be run. 8 So how relevant to the twenty first century British politics, legal system and society is the rule of law? Having remained a distinctive characteristic of the British constitution to this day, it embodies a preference for orderly life within an organized community and expresses the fundamental principle that government must be conducted according to law. Additionally, the rule of law has broadened to include social and economic goals referring to policies for government action in relation to the economy and social welfare.9 Being so fundamental and significant to the UK constitution, it is essential for its nature to be determined, namely whether it conflicts with the other principle of the British constitution- the doctrine of parliamentary supremacy. To the question whether the rule of law has a conflicting nature cannot be given a simple answer. Lord Reid said in 1969: It is often said that it would be unconstitutional for the United Kingdom

5 6

Joseph Raz The Authority of Law: Essay on Law and Morality (Oxford University Press Inc. 1979) 210. Brian Tamanaha On the Rule of Law (Cambridge University Press 2004) 3. 7 Beverley McLachlin Liberty, Prosperity and the Rule of Law (2006) 1-3.
8 9

Anthony King The British Constitution (Oxford University Press 2007) 39. Anthony Bradley & Keith Ewing Constitutional & Administrative Law (Pearson 2011) 95-100.

Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them, the courts would not hold the Act of Parliament invalid.10 Furthermore, Lord Steyn once said that Parliament must be presumed not to legislate contrary to the rule of law.11 So do these two concepts conflict with each other? In the common law world it is assumed that the legislative supremacy of parliament is incompatible with the rule of law.12 In contrast, if the rule of law limits and controls or even rejects arbitrary power, it is, therefore, uncontroversial that administrative officials and even those at the highest levels of the executive should not enjoy arbitrary power. Their decisions are governed by judicially enforceable rules or principles which have been passed by the legislature that should also deny arbitrary power as to contrary to the rule of law in the British constitution.13 Hence, the question whether the legislative supremacy of parliament is compatible with the rule of law and vice versa cannot be answered so simply since there are strong arguments on both sides. If there is some inconsistency, is that the only critical feature that can be referred to the rule of law? It can be stated that the critical aspect of the rule of law is that the liberties of the individuals depend on it. Moreover, its successful application is dependent on the role of the jury and the impartiality of the judges. It also depends on the so called Prerogative orders.14 But what is its critical feature or legal significance and application in the British constitution in relation to European Union law or international law as a whole?

10 11

Madzimbamuto v Lardner-Burke [1969] 1 AC 645 Johan Steyn Lecture (2003). 12 Francis Jacobs The Sovereignty of Law: the European Way (The Hamlyn Lectures 2006) (Cambridge University Press, 2007) 5.
13

Jeffrey Goldsworthy Parliamentary Sovereignty (Cambridge University Press 2010) 61-63. The judicial integrity group Commentary on the Bangalore Principles of Judicial Conduct (2007) 6-8.

14

While the different ideas relating to the meaning of the rule of law are undoubtedly very old and go back to the time when Aristotle lived15, it is possible to project an externalized version of the concept in the international arena. Paul Johnson referred to the establishment of the rule of law as the most important political development of the second millennium and predicted that its development as an international rule of law would be among the achievements of the third millennium.16 Furthermore, it can be said that there is an obvious effort to assure equal access and equal status to all states that may appear before of the International Court of Justice, which is indeed in agreement with the spirit of the rule of law as reflected onto the international plane.17 In other words, the concept of the rule of law in international law is to great extend compatible with the meaning, significance and application of this principle in the British constitution. In conclusion, it can be stated that the rule of law protects citizens from the state and forces to a certain degree the legislature to put into law the powers it transfers to the government, powers that reject and exclude the arbitrary one. The core of the principle which has evolved over time in order to be consistent with the changing nature of the British constitution is that no one is above the law which makes the rule of law an important part of the political, legal and economic development of the country.

Bibliography: Beaulac S, Relocating the Rule of Law: The rule of law in International Law Today (2009) Bingham T, The Rule of Law (Penguin 2010) Bradley A and Ewing K, Constitutional & Administrative law (15th edn Pearson 2011)
15

Judith Shklar The Rule of Law: Ideal or Ideology (Carswell 1987) 1. Paul Johnson Laying Down the Law: Britain and America Led the Way in Establi shing Legal Regimes Based on Universal Principles (1999) A22.
16
17

Stephane Beaulac The rule of law in International Law Today (2009) 218.

Johnson P, Laying Down the Law: Britain and America Led the Way in Establi shing Legal Regimes Based on Universal Principles (1999)

Dicey A, An Introduction to the Study of the Law of the Constitution (1885) Finnis J, Natural Law and Natural Rights (Biddles Ltd. 1980) Goldsworthy J, Parliamentary Sovereignty (Cambridge University Press 2010) Jacobs F, The Sovereignty of Law: the European Way (The Hamlyn Lectures 2006) (Cambridge University Press 2007) King A, The British Constitution (Oxford University Press 2007) Raz J, The Authority of Law: Essay on Law and Morality (Oxford University Press Inc. 1979) Shklar J, The Rule of Law: Ideal or Ideology (Carswell 1987) Tamanaha B, On the Rule of Law (Cambridge University Press 2004)