Rule of law

According to the World health forum Rule of law(R.O.L) is defined as“A durable
system of law, institutions, norms and community commitment that delivers
accountability to the government, private and public sectors”. The emergence of
rule of law in the British constitution is from Magna Carta(1215) where rule of law
was introduced in place of rule of king, it was the very first document of charter of
liberty for a Quid-pro-quo between the King and the Parliament and because of
this King’s Power became limited and Rule of law was brought in UK. Meanwhile,
there had been always a conflicting interpration and as well as it has been always
problematic in upholding R.O.L in UK uniformly. The R.O.L is categorized in two
approaches which are Contact Free Approach & Contact Rich Approach.These
approaches however has created a two approach theory in the UK which has
created a quarrel among the Instituions of the State whether R.O.L exists in the
system of UK or not?

The category which prefer Contact free Approach defined the R.O.L in a manner
that it is only linked with the Procedural Law; The procedure law is how litigation
is conducted, where applying law is simplified is said to uphold R.O.L . Joseph Roy
who explained R.O.L in Contact free approach as a law that must be Prospective &
clear, law must be stable, should contain Judicial independence and at last it must
have natural Justice system. Meanwhile,A.V Dicey defined R.O.L in three point; A
system where no one is above the law, Everyone is equal in the eyes of law, no
institution/Person should have any arbitory powers and a process of Fair Trial
should be held by the common law. Tis approach semms to be incomplete as it
fails to take into the real meat of any law.
The Second group opt towards Contact Rich Approach and defines it that Law
should be procedural and Substantive (A law which sustains fundamental rights) is
said to be upholding R.O.L defined by Ronald dowrtin. This approach was also
acquired by Lord Bingham in which he presented 8 points out of which 2 main
point are to be highlighted.The first one is “law must be clear and accessible”&
the second is “law must provide adequate protection of fundamental rights”
which are in compliance with the Procederual law and Substantive law
respectively is said to uphold R.O.L.As analyzing the above difference of opinion
between group of two approaches,it can be determined that R.O.L’s significance is
being dropped due to multiple interpretations of it and it’s ideology and
resolution behind it is being staggered in the UK, which raises a question on the
instutions of the UK whether R.O.L is being catered at all in the state?

To answer the above mentioned query, one can look into the English Court cases
where R.O.L is being regaled, from ages. In the case of R v R wherein a husband
was accused for a marital rape of his wife.It was the first case where Courts stated
Martial rape as a Criminal offence and he was held liable. Aqeuate protection of
Human rights,Womens rights were given privileged & put forward which upholds
principle of R.O.L.In Entick vs Carrington,A king sent his troops to invade the
house of an author who wrote against him for which the King had to deal with
consequences of his action;The offence of “trespassing to property” was by Courts
even was the King.The Concept of MAGNA CARTA in which “No one is above the
law” is being preserved by the courts, which very much upholds R.O.L.These cases
are traditional that lays out the evidence that UK courts has been upholding R.O.L
from historical time.

LORD HOPE: ”THE RULE OF LAW ENFORCED BY THE COURTS IS THE ULTIMATE
CONTROLLING FACTOR ON WHICH OUR CONSTITUTION IS BASED”

By Looking up at the facts of modern time cases like Burma Oil Case where the
Government used the Oils tankers of an individual in a war and that person
requested for the claimation of his damages. The Government rejected his
request by an excuse of National Security but the Courts held the Government
liable for availing his goods and not paying in return which indicated that the
Court looked after the Fundamental Rights of that Individual. A point of Lord
Bingham is also being justified here that “Public authorities must act in
compliance with fundamental rights of people” which backs up R.O.L. Another
case like Evans v AG(2014) in which a person was oustered from his job without
any justification by Police Officials.The appellant requested for his removal’s
justification however a rationalized opinion by the Attorney General(A.G) was
given that they’ve the arbitory power/right to not disclose anything infront of
anyone on any matter.The Court opposed their opinion and ordered that they
must disclose the matters infront of Court which reflects the arbitory powers
given to the Government aren’t to be taken advantage of and cases like these are
an evidence that the concept of R.O.L is being abetted in UK.
However,there exists case like GCHQ in which Army Officials made a law for
soldiers which stated that they can’t join local union bodies.This law was made
without their consent which was against Priniciple of Natural Justice(Right to be
heard) and Fundamental rights were breached.The Court agreed that F.R’s were
being breached but as it is a matter of National Security, they can’t intervene in
this matter.The above decision given by courts manifests that National Security is
being prioritized in exchange for R.O.L. Similarly in the case of Malone v
C.O.P(Commissioner of Police) where police officers tapped phone call of a
person which resulted in a case against them.He argued that his “Right to Privacy”
was breached and at the former times of this case,right to privacy wasn’t
recognized in UK however it was recognized at the international level that’s why
he wasn’t catered nationally. That individual appealed in the ECtHR(European
Court of Human Rights) and filed a case as Malone v UK where he stood out
correct and the Police officers were called imprecise. Rule of Law was upholded
internationally but not in UK.By scrutinizing the above situations,an opinion can
be suggested that R.O.L is only conditionally upholded in UK which nevertheless
demands to be unconditional application ,just like this in many other conditions
too, R.O.L has been compromised by mere justifications in UK’s Courts too and a
conclusion can be made that two institutes (Executive & Judiciary) of the UK fails
to comply with R.O.L unconditionally by which a question arises either R.O.L is
provisioned in UK’s Parliament or not.

The Parliament of UK has originated such various acts that have provided caridnal
rights to it’s natives e.g HRA(Humans Rights Act),ECA(European Communities Act)
which provides adequate protection of fundamental rights.In the same way,
House of Commons(H.O.C) Constitutional Committee was formed which ensured
that bills presented on the floor of house aren’t in breach of the any Fundamental
Rights. A Joint committee on Human Rights(J.C on H.R) was also formed between
the members of the both houses, House of Lord(H.O.L) and (H.O.C) which also
made sure that no bill presented in the House isn’t violating H.R’s and must be in-
line with conventions of E.C.H.R. Lastly ,the postion of Lord Chancellor(L.C) in the
Govt also holds a significance importance as he suggests how R.O.L should be
upholded and at times interfers when the Govt. crosses the boundaries and
jeopardizes R.O.L.These cases have supported that Parliament is upholding R.O.L
in UK but they’ve also tormented it.

As the Parliament of UK is supreme,it acts retrospectively just like in the case of

Burma oil where parliament acted retrospective and enacted War and Damages
Act (W&DA) instead of giving compensation to that individual, parliament used
their arbitory power and Mala fide R.O.L . Correspondingly,In the case of Exparte
Anderson in which the Home Secretary was given express powers under Crime
Sentence Act 1997, to retrospectively increase the sentence of the prisoners. This
decides just that like Courts, UK’s Parliament too adopts an uncertain and
conditional approach towards the R.O.L.

As discussed above,it can be said that R.O.L doesn’t exists in one proper
definition,there exists a difference of thought(Two Approach theory) in UK and it
isn’t applicable unconditionally,the Soveregnity of Parliament is situated and
prioritized more than the R.O.L which leads to the violation of it.A uniform
application of R.O.L should be applied and one authentic definition of it should be
introduced.As Barrack Obama mentioned:

“One of the greatest challenges of a democratic state is making sure that among
national emergency and pressures,three things need to be protected and
shouldn’t be compromised.”LIBERTY”,”JUSTICE” & “RULE OF LAW”