Introduction
This essay examines four landmark UK cases to identify whether the concept of the rule of law applied in each instance aligns with the formal, substantive, or both interpretations. The rule of law, a fundamental principle in legal theory, can be understood in a formal sense as requiring laws to be clear, predictable, and applied equally, or in a substantive sense as embodying deeper values such as justice and human rights (Raz, 1979). By analysing Entick v Carrington (1765), R (UNISON) v Lord Chancellor (2017), A v Secretary of State for the Home Department (2004), and R (Corner House Research) v Director of the Serious Fraud Office (2008), this essay aims to discern the specific conceptual framework of the rule of law in each context. Each case will be assessed for its adherence to procedural fairness and substantive moral standards, providing a nuanced understanding of the rule of law’s application.
Entick v Carrington (1765)
In Entick v Carrington (1765) 19 St Tr 1029, the court addressed the unlawful search of John Entick’s property by government officials. Lord Camden’s ruling emphasised that state power must be grounded in law, famously stating that without legal authority, such intrusion was invalid. This reflects a formal conception of the rule of law, focusing on the necessity of legal justification for state action and the predictability of law (Dicey, 1885). The decision prioritised procedural legality over substantive rights, as it did not delve into broader moral implications of privacy but rather ensured that government actions complied with existing legal frameworks. Therefore, the case predominantly aligns with the formal rule of law.
R (UNISON) v Lord Chancellor (2017)
The case of R (UNISON) v Lord Chancellor [2017] UKSC 51 challenged the imposition of employment tribunal fees that restricted access to justice. The Supreme Court held that such fees undermined the rule of law by preventing individuals from vindicating their rights. This decision embodies both formal and substantive concepts. Formally, it reinforced the principle of access to courts as a procedural necessity. Substantively, it protected fundamental rights by ensuring that economic barriers did not impede justice, aligning with broader notions of fairness (Bingham, 2010). Indeed, the court’s reasoning intertwined legality with moral values, illustrating a hybrid application.
A v Secretary of State for the Home Department (2004)
In A v Secretary of State for the Home Department [2004] UKHL 56, the House of Lords ruled against the indefinite detention of foreign nationals under anti-terrorism legislation, arguing it violated human rights. The judgment leaned heavily on a substantive conception of the rule of law, prioritising justice and individual liberty over mere procedural compliance (Allan, 2001). While formal aspects, such as adherence to legal standards, were acknowledged, the emphasis on prohibiting discrimination and upholding fairness underlines a substantive approach. This case demonstrates how the rule of law can extend beyond legality to encompass ethical considerations.
R (Corner House Research) v Director of the Serious Fraud Office (2008)
R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60 involved the discontinuation of a bribery investigation due to national security concerns. The House of Lords upheld the decision but stressed that executive actions must conform to legal principles and not be influenced by extraneous pressures. This reflects a formal conception of the rule of law, focusing on procedural integrity and the requirement that decisions be legally justifiable (Raz, 1979). Unlike UNISON or A, substantive rights were less central, highlighting a prioritisation of lawful process over moral outcomes.
Conclusion
In summary, the analysis reveals varied applications of the rule of law across the four cases. Entick v Carrington and Corner House Research primarily align with the formal conception, emphasising legality and procedural adherence. Conversely, A v Secretary of State strongly reflects a substantive approach, prioritising rights and justice, while UNISON bridges both concepts by addressing access to justice as both a procedural and moral imperative. These distinctions underscore the complexity of the rule of law as a principle that can adapt to context. Arguably, this flexibility ensures its relevance, though it also raises questions about consistency in its application, meriting further exploration in legal scholarship.
References
- Allan, T.R.S. (2001) Constitutional Justice: A Liberal Theory of the Rule of Law. Oxford University Press.
- Bingham, T. (2010) The Rule of Law. Penguin Books.
- Dicey, A.V. (1885) Introduction to the Study of the Law of the Constitution. Macmillan.
- Raz, J. (1979) The Authority of Law: Essays on Law and Morality. Clarendon Press.
