RULE OF LAW

Lord Binghams Eight Principles

(16 Nov 2011)
Public Law
 Preliminary points
s1 CRA 2005: the Act does not adversely affect
the existing constitutional principle of the rule
of law or the LCs existing constitutional role in
relation to that principle.
S17(1) CRA 2005: oath taken by LC to respect
ROL and defend independence of judiciary.
Core concept (LB): that all persons 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.
 1st Principle
The law must be accessible and so far as
possible intelligible, clear and
predictable.

2004- 3500 pages of primary legislation

2003: 9000 pages of SI
 Give single opinions
Eg of lengthy opinion: R (Jackson) v AG
 2nd Principle
Questions of legal right and liability should
ordinarily be resolved by application of the law
and not the exercise of discretion.

Eg: In the immigration field, for example,

judges have routinely and gratefully invited
the Secretary of State to exercise his discretion
to grant leave to enter or remain to applicants
who do not meet the tests for entry laid down
in the immigration rules, but whose personal
history demand sympathetic consideration.
 3rd Principle
Laws of the land should apply equally to all, save
to the extent that objective differences justify
differentiation.

While some legislation can be made separately

for children, prisoners and the mentally ill,
legislation made for people with red hair
(Warrington LJs long-lived example) is
incompatible with ROL.
Another example: statute 22 Henry 8 cap 9 which
convicted Richard Rose, the Bishop of
Rochesters cook of high treason- he wasnt tried.
 The position of a non-national with no right of
abode in this country differs from that of a national
with a right of abode- one is subject to removal,
the other not. (this difference is inevitable)

BUT although Habeas Corpus protection is

afforded to all nationals- British and otherwise (per
L Mansfield in Sommersetts Case (1772), this did
not deter Parliament from providing in Part 4 Anti
terrorism, Crime and Security Act 2001 for
indefinite detention without charge or trial or non-
nationals suspected of international terrorism.
 4th Principle
Law must afford adequate protection of
fundamental human rights. (Dicey did not include
this)

Preamble of UDHR recites that it is essential, if

man is not to be compelled to have recourse,as a
last resort, to rebellion against tyranny and
oppression, that human rights should be
protected by the ROL.

However no standard of human rights that is

universally agreed even among civilized nations.
 5th Principle
Means must be provided for resolving,
without prohibitive cost or inordinate
delay, bona fide disputes which the
parties themselves are unable to resolve.

Legal aid was resolved through schemes

set up since 1946. But cost of scheme
rose exponentially and this led to its
curtailment. Questionable whether
conditional fees, pro bono schemes and
small claims filled the gap.
 But LB says that tabloid tales of practitioners
milking the criminal aid fund of millions, and
more general distrust of lawyers and their
rewards, may have enabled a valuable
guarantee of social justice to wither
unlamented.

British governments have insisted that civil

courts should be self-financing: the cost of
running courts should be covered by legal court
fees charged to litigants. Wont this make law
less accessible?
 6th Principle
Ministers and public officers at all levels must
exercise the powers conferred on them
reasonably, in good faith, for the purpose for
which the powers were conferred and w/o
exceeding the limit of such powers. (Judicial
review)
LB speaks of a tension between the executive
and the judiciary. He calls this tension proper
and goes on to say: There are countries in the
world where all judicial decisions find favour
with the government, but they are not places
where one would wish to live
 7th Principle
Adjudicative procedures provided by the
state should be fair. The ROL would seem
to require no less.
After all, Democracies die behind closed
doors.
CJ of Australia: The ROL does not mean
rule by lawyers.
 8th Principle
ROL requires compliance by the state with its
obligations in international law- the law which
whether deriving from treaty or international
custom and practice governs the conduct of
nations.
LB doesnt think this is problematic
He quotes George Bush: (A speech in 2002) But
America will always stand firm for the non-
negotiable demands of human dignity: the ROL;
limits on the power of the State; respect for
women; private property; free speech; equal
justice; and religious tolerance.