Public Law (Rule of Law) Q.

Does the doctrine of Rule of Law have a sufficiently certain

A. The concept of the Rule of Law is one of the most important and fundamental ideas in the
constitution of every democratic nation. This philosophy holds that the law is ultimate and that
everyone is equal in the eyes of the law, whether they are the prime minister of a nation or a
regular citizen. Therefore, it would not be incorrect to claim that the rule of law encourages a
sense of justice, security, and equality for individuals and ensures that no one, including other
individuals or the state itself, can disregard individuals' rights. Rule of law is therefore the factor
which puts the interests of the individual and the state on the same footing.

Rule of law is open to several interpretations because it lacks a clear definition. This contradicts
the question as the doctrine of the rule of law does not have a sufficiently certain meaning.

LORD BINGHAM argued that: “The core of the existing principle is…that all person and
authorities within the state, whether public or private, should be bound by and entitled to the
benefit of laws publicly and prospectively promulgated and publicly administered in the courts”

Bingham’s definition of the rule of law, set out eight rules which was that the law must be
accessible and, so far as it is deemed possible, clear and predictable. Any questions on the
legal rights and liability should ordinarily be put right by application of the law and not the
exercise of discretion. It also states that the laws of the land should be applicable to all and the
law must afford an adequate protection of the rights of a human being. There should be
sufficient means provided for resolving (without the use of additional costs or inordinate delay)
bona fide civil disputes which the parties themselves are unable to resolve (legal remedies
ought to be a readily available good). Ministers and other public officials on all levels must
exercise their powers in good faith and should not exceed the limits of the powers that were
granted to them. Lastly, the state's adjudicative processes ought to be impartial. The current
rule of law norm mandates that the state upholds its commitments to international law.

A legal problem becomes difficult to understand when it is politically fraught or the subject of
ongoing legislation. When multiple judges at various levels issue conflicting rulings rather than
issuing a single authoritative ruling, courts play a significant role in creating ambiguity in the law.

Having said that, the core of this idea rests on the fact that no one experiences injustice, and as
justice is administered through the courts, access to the courts is a fundamental constitutional
right. As was previously said, the lack of a universal definition has resulted in many applications
of this philosophy. Beginning with the content free interpretation.

According to one viewpoint, the rule of law should only apply to the structure of the legislation
and the methods used to create it. JOSEPH RAZ advanced this constrictive viewpoint in
response to what he called "the promiscuous use of the slogan, "the rule of law," in recent
years." According to Raz, the law is characterized by its emphasis on action. These are
authoritative instructions on proper conduct. This objective cannot be accomplished if any of the
components are removed. The social construct is buried beneath the rule of law. Raz begins his
rule of law description (clear, prospective and stable in nature). He claims that the rule's
negative liberty is its one redeeming quality. Even though the law is bad and breaches some
fundamental rights, autonomy is safeguarded because people are aware of how governmental
authority is used. The advantage of the rule of law is this assurance.

Since unjust norms can nevertheless be a part of a legal system that fundamentally adheres to
the rule of law, justice is not included in Raz's definition of the rule of law. The presence or
absence of justice in a legal system does not necessarily mean that it is not a working legal
order.

PROFESSOR RONALD DWORKIN challenged the idea of the content free rule. Contrarily to
the one before, the content-rich interpretation prioritizes the law's content over its application
processes. RONALD DWORKIN who was in favor of this very view stated that the rule of law
was the exercise of power to be justified before the courts which leads to a broader
understanding of the nature of law itself. Courts are there to ensure that there is a justification
for coercing someone. Legal justification is a justifying activity. Dworkin contends that
knowledge of a justificatory practice constitutes the essence of law.

Looking back at Bingham’s eight rules as mentioned above, we can see it to be so that both, the
content free approach as well as the content rich approach have been mentioned and thus
supported in his rules. The content rich approach is shown when he mentions how the laws
should be clear, accessible and intangible.

The eight sub-rules constitute a substantive interpretation when he speaks of the content of the
law, stating that the law should adequately protect people's fundamental rights. However,
Bingham's eight sub-rules are a hybrid of both interpretations, yet steer Bingham's approach
toward the content-rich side.

With that being said, one would not forget to mention DICEY’S approach when discussing the
rule of law. Dicey says that his definition of the rule of law consists of three components; First,
no one should be penalized unless they have broken a specific law. This is referred to as the
legality principle.

Dicey's formulation of the rule of law's second component explained that everyone, even
government officials, must abide by ordinary law and be subject to ordinary courts. Lastly, the
third limb to Dicey’s definition states that the general principles of UK constitutional law were
formed as a result of judicial decisions.

SIR IVOR JENNINGS, who criticized all three limbs of Dicey's definition, was particularly harsh
in his rejection of said interpretation. Jennings questioned Dicey's assertion that the exercise of
discretionary powers was incompatible with the rule of law. He further objected to Dicey's
second limb of the interpretation since it disregarded the special obligations placed on public
servants and the privileges accorded to specific groups of people, such as children.
Furthermore, Dicey's third leg made no mention of how laws and Acts of Parliament contributed
to the formation of the UK constitution.

Creating anything that is man-made that is superior to the persons who formed the law,
according to JAG GRIFFITH, would go against what people actually need and would also
maintain the establishment rather than allow for naturally occurring amendments to the law once
they are deemed beneficial. As a result, various thinkers have diverse interpretations of what
the rule of law is.

After discussing what the rule of law is and various legal analysts' interpretations of it, one
would then explore how each governmental agency defends this notion. The judiciary has
repeatedly attempted to defend the rule of law, beginning with judicial protection of it. Entick v.
Carrington, the first case in which the courts showed a readiness to challenge governmental
authority while respecting individual liberties, was where this was first observed.

Furthermore, R v Homeoffice, a case that examined the private obligations of public officials,
provided evidence for Dicey's second claim. In the GCHQ case (plays a significant role in
holding public bodies accountable for their wrongful actions/inactions), the House of Lords also
hinted that judicial review may be used to the exercise of ministers' prerogatives, but national
security issues were deemed to be unjustifiable and were not subject to the courts' jurisdiction.

However, in Miller v. PM (2019), the courts had shown their willingness to oppose the UK prime
minister and were determined that his use of his prerogative was improper in its nature. Having
said that, more recent cases decided under the HRA 1998 show that the courts are willing to
uphold individuals' rights even when doing so requires going against the state, as in A v.
Secretary of State for the Home department or even if doing so would violate the law, as in R v.
A, Mendoza v. Ghaidan, ex parte Pierson (This case (ex parte Pierson) demonstrates how the
courts have upheld the rule of law through the application of the "Principle of Legality," which
entails analyzing circumstances in which a public entity asserts that it has the authority granted
by a statute to interfere with a common law right (here the presumption against retrospective
application of sentence).

In terms of the protection the parliament provides for the rule of law, it should be noted that
because it is the sovereign, the parliament has the final say on which laws should be passed
and which should not, and as a result, has total control over whether the laws that are passed
are in line with the rule of law or not. Lord Hope noted in Jackson v. A-G that "the rule of law
enforced by the courts is the controlling concept upon which our constitution is based" because
the courts are required to uphold what the Parliament has said. According to Lord Steyn, it
would be a unique situation in which the courts would have to decide whether to preserve the
rule of law or cede authority to Parliament.

Lastly, it is important to mention that the doctrine of the rule of law is also under adequate
protection by the executive. There is a duty on all the executive bodies under s.6 of HRA to act
in a manner which is compatible with the ECHR. According to s1 of CRA 2005, it is Lord
Chancellor’s duty to protect the Rule of Law stating: “This Act does not adversely affect the
existing constitutional principal of the rule of law”. The act itself does not define the existing
constitutional principal of the rule of law. It also gives birth to the question as to what the Lord
Chancellors role in relation to it and leaves it to the courts to define it when the occasion arose.

The words "does not adversely impact" make it plain that the Bill does not in the slightest affect
the Lord Chancellor's duties in relation to the rule of law, according to the Lord Chancellor Lord
Falconer, who summarized their significance in the House of Lords debate. For the "role"
section of the Lord Chancellor's job description, the report cited Lord Phillips of Worth
Matravers, the Lord Chief Justice, who adds a little more information: "Insofar as it is the Lord
Chancellor's job to uphold the rule of law, this must be very largely a job of ensuring that our
[i.e., the judges'] independence is observed.”

In conclusion, one can state that there are many various interpretations of what the term "rule
of law" means because it has many distinct meanings, ranging from "content-free" to "content
produced," and even among the definitions that have been developed for the term, such as the
one favored by Dicey, there are many different views on whether they constitute accurate. Even
if it was still in effect after the HRA, judicial support of the rule of law has undoubtedly been
inconsistent, as shown by the aforementioned judgments. Additionally, the rule of law continues
to be threatened by the Parliament's unrestrained ability to violate individual rights. The fact that
the management must comply with the ECHR's requirements under the HRA and that
Parliament has committees that examine the quality of its laws shows that the UK is committed
to upholding the rule of law, albeit that its exact definition is still being worked out.