“The absolute supremacy of predominance of regular law as opposed to the influence of arbitrariness, or prerogative or even wide discretionary authority on the part of government.”
Secondly, the fact that the rule of law means that no one is above the law and all are equal to it, and finally the factor of judicial decisions being made on the basis of the constitution and protection for our rights and liberties. However significant this theory is, it has a number of critics stating that Dicey’s theory is not absolutely correct.
Professor Jennings, a constitutional law writer felt that Dicey’s views and theories did not accurately reflect modern democratic order. Also he expressed that Dicey had imagined the constitution as being central to the doctrine of the rule of law rather then considering the power of the public authorities.
The principle of the rule of law acts as a restraint. It controls the power and the action of the Executive. The rule of law is of greater significance in the United Kingdom, as we do not have a written constitution to turn to in judging the government. Forms of Judicial Review do the practical application, in these circumstances. In the UK, the rule of law is accepted as underlying the basic requirements that the government should operate accordingly to laws made by a democratically elected parliament and interpreted by an independent judiciary.
The factor of accountability towards the rule of law is primarily concerned with placing restrictions upon government action. This is closely linked to the doctrine of The Separation of Powers enabling for checks and balances to be carried out on the three bodies of law; Parliament, The Executive and the Judiciary.
The independence of the judiciary allows for judges to find and interpret law themselves. The rule of law is commonly contravened when action carried out by the state, infringes on the rights of an individual. This occurs because a broad range of discretionary powers given to the Executive, exercise these powers in a manner outsider their jurisdiction.
Upholding the rule of law is of great significance and this was first established in the case of Entick v Carrington (1765) 95 ER 807. In this case, the Secretary of State issued a general warrant for entry on to a property and seizure of material alleged to be of a seditious nature. The Courts held that the general warrant was illegal and void as it was contrary to the law. As well as this, the fact that the Executive could not in fact justify the action taken. This case supports the idea that public power must be justified by the law itself and not by claims of state necessity. It also affirmed the principle that a public officer must show express legal authority for any interference with a person or their property. Thus embracing Dicey’s third concept of the rule of law – that the general principle of the constitution are a result of judicial decisions determining the rights of a person rather then decisions of the individuals rights resulting on the basis of already established principle of the constitution.
The principle of legality underlines the fact that all state activities must be carried out in accordance with the law and not exercised on an arbitrary basis. The case of R v Horseferry Road Magistrate’s Court, ex parte Bennet (1993) 3 ALL ER 138, where a New Zealand citizen was wanted by a police in the UK suspected of a number of crimes. He was arrested by the South African Police and flown back to the UK. The Magistrates then committed him for a trial. The problem that arose was that there was no extradition treaty between the two countries, which rendered the arrest unlawful. The House of Lords reversed the decision of the magistrate’s court, explaining that the duty of the court was to uphold the rule of law. The underlying principle here was that the rule of law was so important that any possibility of a conviction was dropped.
Another significant factor that shows the rule of law in action deals with the point that the law must apply equally to all, and the fact that no one is above the law. In M v Home Office (1993) 3 ALL ER 537, the House of Lords held that the secretary of state could not claim Crown Immunity. This was after an injunction had been granted against the department of the Secretary of State in his official capacity and the office for which he was responsible was held in contempt. This was after the Home Secretary failed to obey a court order in having an asylum seeker brought back to the UK. This case proved to be a landmark case in the sense that it was the first time that a Government Minister had been found in contempt of court. This case underlines the point that not even the Executive is above the law.
The judiciary attempt to protect the basic rights of an individual as far as possible, by applying the Common law and in turn upholding the Principle of natural justice. This principle is a natural consequence of the principle of the rule of law. The initial principle of natural justice states, “no man shall be the judge of his own cause.” In the case of R v Bow Street Metropolitan Magistrate ex parte Pinochet Ugarte, the Chilean dictator was being tried for Humanitarian crimes. Due to the fact that Lord Hoffman was involved with the organization of Amnesty International and he had also passed decision in this case, the hearing in which Lord Hoffman passed his decision was invalid.
There are also limits to the rule of law. The case of Liversidge v Anderson (1942) AC 206 underlines the limitations associated with the rule of law. In this case involving the detention of a German individual suspected of being of a hostile origin. The question was whether or not the detention ordered by the Home Secretary was sufficiently justified. The House of Lords departed from their decision in Entick v Carrington and justified this by saying in times of emergency the Courts could not review decisions nor actions of the incorporation of the European Convention of Human Rights into domestic law now allows for acts of Parliament to be challenged.
Another essential limitation to the rule of law is one of great importance. This is to do with the fact that Parliament has the legislative power to pass any law it feels. This can obviously create a new problem within itself once again. This fear is that too much discretionary power is in the hands of Parliament. This clearly nullifies the effect of any judicial decision. The fact that Parliament can pass legislation retrospectively limits further the rule of law. The legislative supremacy of Parliament and the inability of the Judiciary to have any control in upholding rights of individuals limits how effective the rule of law is.
The leading case emphasizing the supremacy of Parliament is the case of Burmagh Oil v Lord Advocate (1964) 2 ALL ER 348. Here the courts had granted compensation for the destruction of Burmagh’s Oil company by the government beforehand but using their majority elected the government was able to get a legislation passed quickly for their sole advantage and to have it backdated thus providing retrospective effect. In turn this led to no compensation being paid for the company’s losses and undermining judicial decision and the rule of law. This proves the critical point of Raz, the writer mentioned earlier, who was critical of the UK’s democratic society in which the rule of law was said to provide justice and equality. But in his opinion this did not happen in practice. From his point of view it would be inconsistent with the rule of law not only for a government to resort to retrospective legislation in order to nullify judgments but for Parliament to make such laws – as seen in the above case. We can conclude that if the executive were to make a practice of retrospectively overturning judicial decisions then there would be no equality before the law and no effect to the principle of natural justice that it claims to value – a simple idea of equality and a right to a fair hearing.
The introduction of the Human Rights Act of 1998 has placed certain functions upon the courts, which have extended the rights of individuals, which are protected by the European Conventions of Human Rights. Further to this, the judiciary now has a duty to interpret all legislation as consistent with the Human Rights. In the instance where an Act of Parliament and primary legislation goes against the Human Rights the courts can declare the law as incompatible with the convention. However, the government felt that the judiciary had too much power and that the sovereignty of Parliament should not be undermined. It seems that the incorporation of Human Rights within domestic law will now mean that a greater number of cases will be brought against the state claiming an infringement of Human Rights. Lord Lester was quoted as saying that Judges will have to depart from previous interpretation in upholding the Sovereignty of Parliament in becoming more independent allowing for the rule of law to prevail.
In conclusion, we can see that defining the rule of law is difficult in the sense that the principle acts as a restraint on the exercise of power by the government. The rule of law plays an important role in the constitution - as a safety check ensuring that those in authority abide by the law of the land. On the other hand there are a number of significant limitations to this rule, which questions the effectiveness of the rule of law. There have been a number of instances where the Legislative Supremacy of Parliament has overruled the rules of law. However the incorporation of the human Rights Act has meant that Convention law must be incorporated into the UK law.
Although in practice the view of Parliamentary Sovereignty succeeds when in conflict with the rule of law as a constitutional principle it still serves as a foundation for evaluation of laws and a critical issue for discussion.
Word Count: 2018
BIBLIOGRAPHY
Introduction to the study of the law of constitution – A.V Dicey
The Rule of Law and its Virtues – Raz
Common Law and Political Theory – TRS Allan
The Changing Constitution – J, Jowell and D Oliver
Constitutional and Administrative Law: Text and Material – Pollard, Parpworth and Hughes – Third Edition
Entick v Carrington (1765) 95 ER 807
R v Horseferry Road Magistrate’s Court, ex parte Bennet (1993) 3 ALL ER 138
M v Home Office (1993) 3 ALL ER 537
Liversidge v Anderson (1942) AC 206
Burmagh Oil v Lord Advocate (1964) 2 ALL ER 348.
