Our Voices

Memorandum Regarding the Rule of Law

By Andrew Hopper

It has lately become the practice of the SRA to make on a regular basis allegations that solicitors have “failed to uphold the rule of law” contrary to SRA Principle 1.

In my submission this is being done without an appreciation of what “the rule of law” truly is. The issue has not been properly argued so far as I am aware, despite it featuring regularly (without objection being taken) in the SDT. On the basis that the matter has never been properly considered the error is being perpetuated and becoming cemented into bad practice.

The true meaning of the rule of law in the modern era has been authoritatively stated by no less than the late Lord Bingham.

All the following quotations are taken from The Rule of Law by Tom Bingham (2010) late Senior Law Lord of the United Kingdom as Baron Bingham of Cornhill KG PC. 

… the core of the existing principle of the rule of law [is]: that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts.

… this principle [is] not comprehensive and not universally applicable… I seek to explore the ingredients of the rule of law a little more thoroughly. I do so by advancing eight suggested principles:

  1. The law must be accessible and so far as possible intelligible, clear and predictable.
  2. Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion. 
  3. The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.
  4. Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably.
  5. The law must afford adequate protection of fundamental human rights.
  6. Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide disputes which the parties themselves are unable to resolve.
  7. Adjudicative procedures provided by the state should be fair. 
  8. The rule of law requires compliance by the state with its obligations in international law as in national law.

In the above quotations Lord Bingham is describing the rule of law as it applies today; it was first (probably) used as a phrase in the sense that it is now understood by Professor A C Dicey, Vinerian Professor of English Law at Oxford, in 1885 in his book An introduction to the Study of the Law of the Constitution.

Professor Dicey gave three meanings for the rule of law (repeated in chapter 1 of Lord Bingham’s book) which I paraphrase:

  1. No man is punishable except for a breach of a properly established law before ordinary courts.
  2. Every man, whatever his rank, is subject to the law and amenable to the jurisdiction of the ordinary tribunals.
  3. The general principles of the constitution, including for example the right to personal liberty and the right of public meeting, result from judicial decisions determining the rights of private citizens in particular cases brought before the courts.

If the SRA alleges that a solicitor has failed “to uphold the rule of law” the allegation must therefore identify which of the above principles enunciated by Lord Bingham has been offended by the actions or failings in question.

When so considered it becomes apparent that (a) the principles of the rule of law are directed at the state and those exercising the power of the state, rather than the individual citizen and (b) that allegations of the kind now frequently being made are inevitably misconceived unless, for example, the individual being accused is a solicitor exercising state-derived powers in a manner open to criticism, such as by reason of bias or excess of jurisdiction.