The Rule of Law
(by Lord McCluskey)
Lord McCluskey in formal Scottish Judicial robes
We all use words or expressions like "democracy", "human rights" and "The Rule of Law". But it is not clear that we all share an agreed understanding of what they mean. Perhaps the least well understood is with the concept of "The Rule of Law".
We can properly say that we live under The Rule of Law (as it is understood in the Common Law systems) if our State has a legal system which has the following essential characteristics:
[1] Knowing what the Law is:
The Law must be knowable: in other words, the content of the Law (both Criminal and Civil) must be published by the State in such a way that all citizens can discover what rights and responsibilities are given to, or imposed upon, them by the Law.
[2] Equality before the Law:
The Law must be applied equally to all citizens, to all juristic persons (e.g. companies) and to all public bodies and officials, including Ministers of the Executive.
[3] Access to Justice:
The citizens must be able to claim (assert and vindicate) their rights in independent Courts (or Tribunals). This requirement (along with #[1]) means that there must be a body of competent and independent lawyers, or at least paralegals, available to advise and represent citizens in understanding and pursuing their rights.
[4] Independent Judiciary:
The judges who decide all questions of rights in Courts and Tribunals must be independent and competent. To be "independent" the judges must have security of tenure: that means that no judge can be dismissed for the reason that the Government or other public non-judicial body regards his/her judicial decisions as unacceptable. Judges must not be able to be dismissed except for misconduct or unfitness: and the judgment as to whether or not any judge has been guilty of misconduct, or is unfit, must be made by a body of persons independent of Government. Judges must be properly paid to eliminate the risk of bribery. They must be trained and experienced in the application of the Law.
[5] Public Justice:
The Courts must be open to the public, including the Press. Judgments/Decisions in contested cases must be delivered in public and the judges must give reasons explaining their decisions. No person or agency of any kind can be allowed to make private representations to judges about the rights of citizens, except in accordance with published Rules of Court governing the procedures of the Courts.
[6] Challenging Executive action:
The actions, including the intended actions, of the Executive, of the police and of other public and private agencies must be able to be challenged and reviewed in the Courts on the basis that they are actions not authorised by the Law.
[7] Court decisions to be respected:
Once the Courts have delivered the final judgment in any litigation, the citizens and all agencies of the State affected by that decision are bound by it and must respect and act in accordance with it.
John McCluskey