Public Law I: The Rule of Law and Its Principles

Public Law I - Sources of Power: The Rule of Law

• Learning Objectives: Define constitutional principles, explain different conceptions of the rule of law, and evaluate the rule of law's role in the UK Constitution.
• Constitutional Principles: Fundamentally important values concerning the constitution which explain constitutional arrangements, influence constitutional arrangements politically or legally, and provide benchmarks for evaluating constitutional actors. Examples include the rule of law, the separation of powers, and parliamentary sovereignty.
• The Rule of Law (Definition): Government operates under the law; this decreases the level of arbitrariness in government. Rule of law versus rule by law. Rule by law is the instrumental use of law to control political power.
• Importance of the Rule of Law: Provides clarity, certainty, and accountability.
• Key Concepts of the Rule of Law:
  • Highly contested concept, with disagreement revolving around definition and scope.
  • Different conceptions exist: formal (emphasizing legality and process) and substantive (emphasizing a moral and just content to the law).
  • Formal conception (legality): Focuses on the processes of lawmaking and ensuring laws are clear, public, and not retroactive; formal quality of law in itself. Does not concern the content.
  • Substantive conception (content) of the rule of law: Emphasizes not just process but also the good content of law; includes the freedom of expression and the principles of equality, as well as the moral and just aspects of the law itself.
• Bare Principle of Legality: If something is enacted following prescribed legal procedures, it must be considered a law. This is recognised in UK law, such as the cases of Entick v Carrington (warrant to break into a house illegally) and Jackson vs the relevant legal procedure concerning fees and also Unison regarding the difficulty in accessing employment tribunals.
• Formal Conception in the UK: Legally recognised principle in the UK, includes legal certainty, non-retroactivity, access to independent courts and tribunals, and judicial review of government actions (examples: Anufrijeva, Pierson, Unison, and Privacy International).
• Substantive Conception in the UK: Some judicial recognition exists, but its status as a constitutional principle or legal matter is complex (e.g. the Human Rights Act).
• Rule of Law in the UK Constitution: Courts strike down government actions inconsistent with the rule of law, although judges may differ in the extent of the rule of law; courts generally seek compatible interpretations of legislation (unless Acts of Parliament); Parliament is supreme legally, but it acknowledged the rule of law in the Constitutional Reform Act of 2005.