The rule of law and why I think it matters

It’s one of the most important principles in our constitution

Some people say the rule of law is a mere fallacy, to make politicians think that they are doing what they ought to do.

I don’t agree. The rule of law is still one of the most important principles in the United Kingdom’s constitution, and there is real meaning behind this doctrine.

First, a quick overview of the rule of law. The definition that prevails over others is that preferred by Dicey. He says there are three guiding principle of the doctrine.

The first principle is that a man may be punished for breach of law, but he cannot be punished for anything else. The second principle is that equity is before the law. The last main principle is that the constitution is developed by the ordinary law of the land, which can secure the rights of individuals.

This doctrine is effective in providing some proper structures of control for politicians. Although there are some new laws made by acts of parliament that provide more powers to parliament, there are still some restrictions on those powers.

The doctrine of the rule of law also makes sure no one in the state can be above the law, and the law applies to both citizens and politicians in the same way. In the famous words of Lord Denning in Gouriet:

Be you ever so high, the law is above you.

No doubt, in some circumstances, the rule of law is not reflected in the English legal system, for instance, the government can make some laws in the emergency situations. Though this may cause some damages towards the doctrine of the rule of law, these are very small exceptions and — as Denning’s statement reflects — the rule of law is otherwise absolute.

Some scholars claim the law does not apply equally to everyone because there are some privileges and immunities given to the crown. In fact, their privileges and immunities are gradually decreasing through the ages. Plus the Crown Proceedings Act 1947 made suing the Crown easier.

And then there’s the separation of powers. This doctrine also serves as one of the most important principles in the constitution.

The principle says there are three branches in the constitution: they are parliament (legislature), the executive (government) and the courts (judiciary).

Some, including one of Legal Cheek’s recent Journal contributors, have said the separation of powers isn’t relevant in the UK anymore, but I still think this doctrine is effective in providing its check and balance functions.

Legislature, executive and judiciary are distinguishable nowadays. Parliament plays an important role in scrutinising the executive, so as to ensure the executive branch would not abuse their powers. Therefore, the doctrine can ensure the power of the government is checked and the powers between the executive and legislative are balanced.

Then the powers of those politicians are controlled and monitored by the judiciary (the courts). Under the doctrine of the rule of law, there is no one in the state above the law, which implies that those politicians need to follow and obey the laws. Also, there are some laws that set some restrictions to the politicians in order to prevent the abuse the powers. For example, the court may be asked to consider whether a piece of secondary legislation is ultra vires (beyond its powers) or not. Therefore, the laws that are made by government ministers will be checked by the courts, so as to ensure that there is no power being abused by them.

So, in conclusion, both doctrines can fulfill their own role in the constitution. The rule of law ensures law is above everyone, and the separation of powers enhances the check and balance functions of the legislature, executive and the judiciary.

Charles Mak is a recent law graduate from the University of Sussex.