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Assess the Idea of the Rule of Law from Different Perspectives.

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INTRODUCTION:

Undoubtedly, United Kingdom is unique per se since it has an uncodified constitution whereby the source of constitutions is mostly scattered in other manners. The reason being is that, instead of an obvious governance system, the separation of powers in United Kingdom has not been clear throughout these centuries. Hence why, the rule of law is imperative to ensure the overlapping of three bodies of government has not acted ultra viresly. The enduring importance of this principle is as described by Aristotle that the rule of law is better than any of the individuals. It is then affirmed by LCJ Coke by expressing that:

“ The King himself ought not to be subject to man, but subject to God and the law, because the law makes him King.”[1]

 However, the Executives may at times act beyond the power given. Therefore, it provides itself as a shield from abusing of power is exceptionally important to a country with no written constitution like United Kingdom. So, it is said that the Executives is needed to be watched to ensure accountability in the light of rule of law so the justice can be seen without being oppressed by the dominant ruler  – The Executives. The question is seeking for an evaluation on the gist of rule of law as to whether do it efficiently runs as a lubricant in controlling the Executives and its importance in this contemporary era. It is vital to first state on how does the rule of law come into play in UK and its function as an examination tool from several point of views with more weight will be given on the three ex-position by A.V Dicey.[2] Furthermore, it is crucial to lay down the efficiency of the rule of law in nature, whether has it been followed and arbitrariness of power by the Executives has been lessened. Besides, it would be important by stating down the importance of it as a watchdog to check and balance of the exercising power by the Executives. However, it is also worth assessable to ponder on whether the rule of law may no longer be the protector of citizen’s right after the constitution has been codified.  

ASSESS THE IDEA OF THE RULE OF LAW FROM DIFFERENT PERSPECTIVES

Primarily, In respect on the idea of rule of law, it is submitted that there are few orthodox expressed by academics and as well from the legal profession as the rule of law has grown up to become such an important element though it may not be unique under UK’s constitution. Historically, the rule of law has been existing since time immemorial on Greeks Civilisation in which latter Magna Carta(1215) comes into play that rooted rule of law in the land of UK.[3] It actually projects a set of guidelines for the government, so they are restraint instead of posing discretionary powers arbitrary. In another word, it is an influential idea of which it regulates the conducts of public affairs in UK. In general, it runs as a mechanism to keep government in check to prevent the infringement upon civil liberties. In accordance to Professor A.V Dicey, his view on the rule of law has been popular with the three exposition in which he disagreed that written constitution is the only route towards equality among citizens.  It is because he thinks the rule of law has offers enough of safeguards.  The three views in short are that all government bodies must act within the law. No man is above the law and judges as the ideal protector of citizen’s right.[4] Though his idea is of great contribution, it attracts an immense of criticisms that it may not be true, which will be discussed as another issue late.Notably,an academic, Friedrich Von Hayek, who acts as an exponent of Dicey’s viewpoint. He is in the opinion that, the idea of rule of law is an absolute value in which can only be present in the constitution to prevent government from intervening in social and economic welfare. He also stated that parliamentary sovereignty, and the rule of law should not be existing simultaneously since both of it are in contradiction. Whereas Harry Jones were in a different point of view as compared to Hayek, he agrees with the rule of law has been doing good in administering the behaviour of government, but he disagrees that it rule of law must be abolished if parliamentary sovereignty is present. The idea of rule of law is always in the eyes of the legal circle with different orthodox. However, it is opined that, the nature of the idea of rule of law will remain as it is to serve justice in UK which most of us would agree with it.

WHETHER THE 1ST PRINCIPLE HAS BEEN EFFICIENT

In general, the rule of law can be understood with Dicey’s analysis on the three branches. It is now the issue on whether all the principles remain its relevance in this modern era, especially in the UK with the absence of a written constitution. Absolute power corrupts absolutely,It would be important on assessing if the rule of law has functioned efficiently these days.  First,  It is said that no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary court of the land. As expounded in the case of Entick v Carrington,[5] whereby the defendant has not been in any time being accused nor convicted has been abused by the Executives. It is also a truism that, the Home Secretary’s messengers into Entick’s house and removed his papers. Therefore, the privacy of a citizen in this circumstance has been invaded. Ultimately, the court held that the government has no right to interfere with property merely because it is the government and perform its power arbitrarily. Furthermore, it was held in Ghani v Jones[6] whereby the court ruled the police had no power to retain a person’s passport, unless they have reasonable ground for the arrestment.  It can be seen the first principle has been followed quite well as the court decided the cases in line of the rule of law so far. The legislative also affirmed the first principle by passed an act which is the Crown Proceeding Act 1947  that gives individual right to sue the government if the government done a wrongful act. In addition, on the grounds of A(FC) v Secretary of State for Home Dept[7] in which the court has made a declaration of incompatibility with Article 5 and 14 of the European Convention of Human Right as the steps taken for derogation is discriminatory and invade human rights.  

However, it is argued that this principle of rule of law is not as efficient as we have thought to this stage. It is simply because there are still enactments of some act of parliament, which may not be fair. For instance, Terrorism Act 2006 which reads, the act gives authorisation to executives to detent terrorist suspects for up to 28days without charge. Although it has been lower down from the original version, but it is still unfair to those who are innocent yet detained under this act without trial.[8]  Furthermore, under the case of Malone v MPC,  it is held that there is no law neither case law nor statutes, which state the issue of privacy under UK laws. Hence, telephone tapping by the police was therefore, not illegal. It is opined that it would be in breach of human right and the rule of law.

As per Thomas Fuller, be you ever so high, the law is above you that denoting no man is above the law regardless on his ranking or condition. This principle simply requires the equality before the law. It is at the first glance that the rule of law has been watched well as the Bill of Rights 1689 says that, the monarchy was still  subject to law. It promotes an egalitarian ideology in another word. The case of Laker Airways v Department of Trade has proven the Bill of Right’s word whereby it was held that royal prerogative of treaty making cannot be used to defeat any right granted under an Act of Parliament.[9] Besides, the court has granted an injunction on Home Secretary for the contempt of court under the case of M v Home Office.[10]  It is therefore quite obvious that, the rule of law has been a great tool on controlling the Executives.  In another hand, the parliament also upheld the rule of law by having several of scrutiny methods, for example, Prime Minister Question Time, Debates and Select Committees. Prime Minister can now be questioned by the back benchers on every Wednesday. The Question Times are also televised for the purpose to ensure  Member of Parliament are subjected to the public gaze. Furthermore, the efforts also have been made for having a Question Time in parliament, so the executives function within the scope of power given. There is another scrutiny method, which are the Select Committees to check on the Executives in terms of policy and administration and ensure ministerial accountability. For example, The Westland Affair by Leon Brittan would be one of the successful outcomes of this scrutiny method. It seems the court and parliament has done sufficient work on upheld this principle of rule of law.  

Nonetheless, it can be argued that this principle of rule of law is, however, having not been followed properly especially towards the Executives as under Police and Criminal Evidence Act 1984, which still operate with discretionary power.[11] As laid down in The Council for the Civil Services Union v The Minister for the Civil Service ( GCHQ ) , the court cannot review on the Act of Parliaments which inclusive of policy matters and that is best determined by the Executives. This indicates that the Executives is, however, holding most of the power and may be abusing it when appears the chance to do so. Furthermore, the power is still imbalance as it is on the fact that some of the parties do still enjoy some privileges like immunities. The Executives still do not need to bear any liabilities when there’s immunity.  

It is also expressed by Dicey that, the common law is still the best protection to the citizen than a written constitution which indicates the judges is still the best protector with right given under Human Right Act 1998.  Under section 4 of that Act, it permits the courts to declare an Act of Parliament if violation of Convention Rights has been found. Besides, the exercise of power by the executive can be review by the court and it is discretionary of the court by taking consideration of illegality, irrationality and procedural impropriety. Therefore, if the executive is found ultra vires or act illegally, the court could review the act of the executive. Under the case of Padfield v Ministry of Agriculture(1968) , it is cited that if a minister has misconstrued the Act or any other reason, the person would be entitled to compensation. Nevertheless, as per Lord Denning in the case of Magor and St Mellons RDC v Newport Corp , the court ultimately may still have to bow down to Parliament Supremacy like The War Damages Act 1965. In addition, the royal prerogatives exercised by the Prime Minister ( the Executive) cannot be questioned by any court. Therefore, it is opined that the rule of law has been working well in controlling the executive’s power but it can also be said that the rule of law may be just a flower in painting .

In essence, the rule of law is at the purpose of as a reminder to those who are in power to obey the laws. Hence, it would be very important for rule of law to exist in the governance of UK to overcome the overwhelming power of the state. The nature of rule of law is of the very significant as the whole idea is that all laws should be prospective, open and clear and should not be any secret laws. Under the rule of law, law should not be changed too often so it ensures certainty and enhances public confidence towards UK. Besides, the independence of the judiciary must also be assured by having an accessible court system. Rule of law is of the function under audi alterum partem and as well nemo index in causa sua non potest , which ensure the right to be heard and the right against bias. It is, in The the nature justice of the principle of rule of law is imperative per se.  Nevertheless,it may not as efficient since it is  all the aims under the rule of law has not been fulfilled.  

In a nutshell, the idea of rule of law has been established since time immemorial as it always a theory of balance the power. It is opined that, where there’s man with division of works. Power hence is necessary to be in existence. It is to be noted that, absolute power corrupts absolutely. The rule of law is at the very important position in the eyes of law, especially to United Kingdom, which has no written constitution. Dicey’s analysis of the rule of law formed the very basic understanding of that principle and it as a means of a mechanism to control the executive is of very little efficient since it has always been the parliament supremacy which rules UK. However, it has been improved with the enacting of Human Right Act 1998. ( 2262 WORDs)


[1] Proclamations (1610 ) 77 ER 1352

[2] A.V. Dicey,The Study of the Law of Constitution,2005, p179 onwards

[3] “No free man shall be seized or imprisoned, or stripped of his rights or possessions or outlawed or exiled, or deprived of his standing in any other way, nor will we( the Kings )proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.”

Robert S.Summer, ‘A Formal Theory of the Rule of Law’ Ratio Juris, Vol 6, no.2( July 1993),p127

[4] Hillaire Barnett

[5] [1765] EWHC KB J98

[6] [1970] 1 QB 693

[7] [2005] 2 AC 68

[8] Prevention of Terrorism Act 2005

[9] [1976] EWCA Civ 10

[10] [1994] 1 AC 377

[11] Section 24

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