the law is clear, certain and prospective, enforced by an independent judiciary, and in courts accessible to all citizens; furthermore, any governmental action must be justified by legal authority. On the other hand, the substantive model of the principle adds a moral element to the formal view of the rule of law. firstly, how the courts have sought to ensure that the rule of law is upheld against grants of wide discretionary powers during emergency situations, particularly in regard to the exercise of arbitrariness and/or indiscriminate measures that is at the crux of the principle; those exercising a governmental function should not be able to exercise power arbitrarily, but rather be subject to legal controls’ he principle entailed the supremacy of regular law over arbitrary law, equality before the law, and no higher law other than the rights of individuals as determined through the courts ; in a more recent consideration of the rule of law, Lord Bingham supplemented these core ideas with a number of sub-rules which, in emphasising that the law should afford adequate protection for human rights and fairness in legal process ‘the greater the legal content of any issue, the greater the potential role of the courts, because under our constitution and subject to the sovereign power of Parliament, it is the function of the courts and not of political bodies to resolve legal questions’ Castigan, Hurden, Lawson, para. 29, p. 80. firstly, how the courts have sought to ensure that the rule of law is upheld against grants of wide discretionary powers during emergency situations, particularly in regard to the exercise of arbitrariness and/or indiscriminate measures that is at the crux of the principle; Again, we are dealing with an issue of whether the actions taken by the State amount to indiscriminate measures which undermine constitutional values and the sanctity of human rights, or whether they can be justified by national security considerations. Lord Bingham reiterated the role of the courts in meeting the principle: ‘The task of the English courts is to seek to give fair effect, on the facts of this case, to the principles which the Strasbourg court has laid down.’

Indeed, However, Lord Hope of Craigshead stated in R (on the application of Jackson) v Attorney General that: ‘

n its modern form, now reinforced by the European Convention on Human Rights and ... the Human Rights Act ... he rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based’

at a time where anti-terrorism safeguards risk reiterate, perhaps indicating the fulfilment of Lord Hope of Craigshead’s obiter in R (on the application of Jackson) v Attorney General where he stated that: ‘

n its modern form, now reinforced by the European Convention on Human Rights and ... the Human Rights Act ... he rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based’

bingham: The European Commission has consistently treated democratisation, the rule of law, respect for human rights and good governance as inseparably interlinked.

lord phillips: neither government nor the citizen can be permitted to believe that fighting terrorism is more important than observing the rule of law. Upholding the rule of law is a vital part of the fight against terrorism, for the real battle is one of ideology, not of arms.

In times of crisis, judges and lawyers have a particularly important role to play in ensuring that popular emotion does not subvert the rule of law Ian Loveland observes that ‘

he courts’ constitutional role is ... to police the boundaries of legislative intent, and ensure that government cannot overstep those boundaries without incurring legal liability’ Ian Loveland (2009) Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction (Oxford: Oxford University Press), p. 67.

• The provisions of the 2005 Act only allowed the power to exist in so far as it was not incompatible with the right to liberty, as such, the court held that ‘the Secretary of State has no power to make
  
  an order ... An administrative order made without power to make it is ... a nullity’

and quashed the control orders. 16 Secretary of State for the Home Department v JJ and others [2007] UKHL 45, Lord Bingham, para. 27. <http://www.lexisnexis.com/uk/legal/results/docview/nonSearchDocument.do?docLinkInd=true&risb=21_T14140308611&format=GNBFULL&sort=JUDGMENT-DATE,D,H,$PSEUDOLOSK,A,H&startDocNo=1&resultsUrlKey=29_T14140308616&cisb=22_T14140308615&treeMax=true&treeWidth=0&bct=A&csi=274668&docNo=4> [accessed 4 March 2012] allows the government to take measures necessary in times of emergency and/or for the defence of the realm. Lord Templeman notes ‘Parliament makes the law, the executive carry the law into effect and the judiciary enforce the law’

• BPP Law School, quotation from Re M [1993] 2 WLR 433, p. 49