The rule of law is a fundamental principle underpinning the UK constitution. Its core principles include limits on state power, protection for fundamental rights and judicial independence. Lisa James and Jan van Zyl Smit argue that upholding the rule of law is a responsibility shared between politicians, officials and the public – with ministers and MPs having important roles to play.
The rule of law is frequently cited in political debate, and is a key topic monitored by those worried about democratic backsliding. But what is it, and why is it so important?
The rule of law is one of the fundamental principles underpinning constitutional democracies, and its importance is not seriously questioned in any modern democratic state. But like other constitutional principles, long-running debates exist about how it can most effectively be implemented.
This briefing explains the central concepts constituting the rule of law under three broad categories:
- Legality and legal certainty
- Legal equality and fundamental rights
- Judicial independence and access to justice
Why does the rule of law matter?
The rule of law prevents the abuse of state power, requires the law to be followed by all, and ensures that legal rights are fulfilled in practice. It also provides the means for various other core aspects of democracy to be safeguarded – for example, making certain that the laws made by parliament are enforced, and that fair conduct of elections can be guaranteed. More broadly, it underpins social functioning by providing fair and legitimate routes for disputes to be settled. And it supports stable economies and economic growth by upholding property rights, facilitating the elimination of corruption, and maintaining a business environment in which contracts are enforced, and international trade and investment can flourish. The rule of law alone is not sufficient to make a state democratic, but a state which does not observe it cannot be a healthy democracy.
As such, the rule of law has long been recognised as a fundamental part of the UK system. Many of its core aspects were established during the seventeenth century – particularly by the Bill of Rights 1689. Nineteenth-century scholar Albert Venn Dicey considered it, alongside parliamentary sovereignty, one of the ‘twin pillars’ of the constitution. More recently, Margaret Thatcher considered its observance central to Conservatism, arguing that ‘the institution of democracy alone is not enough. Liberty can only flourish under a rule of law’. And the 2001 Labour government recognised its importance as an existing principle in the Constitutional Reform Act 2005.
What does the rule of law cover?
Like other fundamental principles, the precise details of the rule of law are debated, but its central tenets are widely recognised. Lord (Tom) Bingham of Cornhill, a former Senior Law Lord, provided one well-known schema, on which the Venice Commission’s Rule of Law tools for assessing constitutional reforms are based. Another influential definition was given by then UN Secretary-General Kofi Annan, who defined the rule of law as:
…a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.Continue reading