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Discuss Dicey's three propositions on the concept of the Rule of Law in the UK constitution and assess the criticisms which have been put forward to challenge Dicey's views.

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Introduction

Discuss Dicey's three propositions on the concept of the Rule of Law in the UK constitution and assess the criticisms which have been put forward to challenge Dicey's views. 'Though the idea of the rule of law was not introduced by Dicey, he may be credited for popularising it. In his book1 he defended Britain's system of an unwritten constitution and argued that this was a positive gain.'2 'The rule of law is fundamental to the western democratic order. Aristotle said more than two thousand years ago, "The rule of law is better than that of any individual." Lord Chief Justice Coke quoting Bracton said in the case of Proclamations (1610) 77 ER 1352. The King himself ought not to be subject to man, but subject to God and the law, because the law makes him King". The rule of law in its modern sense owes a great deal to the late Professor AV Dicey. Professor Dicey's writings about the rule of law are of enduring significance.'3 Dicey wrote in 1885 that the rule of law was one of the main features of the British constitution. Dicey considered the rule of law to consist of three concepts. The first concept states 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 courts of the land. In this sense the rule of law is contrasted with every system of government based on the exercise by persons on authority of wide, arbitrary, or discretionary powers of constraint.' This concept basically means that the personal freedom or property of an individual can only be interfered with by the State if the State can point to a specific and definite law established before the courts. But can this be considered to be correct? For example, the police can arrest a person upon reasonable suspicion of having committed an arrestable offence. ...read more.

Middle

There should be adequate safeguards against abuse where laws confer wide discretionary powers. Unfair discrimination should not be sanctioned. A citizen should be granted a fair hearing before an independent tribunal before losing his liberty. So, it can be seen that DeSmith interpreted the rule of law as implying certain minimum standards as regards the liberty and freedom of the individual citizen there to protect the citizen from the dominant position of the State. However Dicey considered that the rule of law had a wider impact than this. It sought to ensure that both citizen and State were accountable to the courts. 'No man was above the law'. The principle of legality requires that the organs of government operate through law. If the police need to detain a citizen or if taxes are to be levied, the officials concerned must be able to show legal authority for their actions. In Britain, they may be challenged to do so before a court of law, as they were in Entick v Carrington (1765) 19 St Tr 1030.5 In this case, the plaintiff sued the king's messengers in trespass after they entered and searched his house under authority of a 'general warrant'. The defendant could not point to any statutory or common law authority for issuing general search warrants. Lord Camden held there was no legal basis for issuing such warrants and said: '...when the officers of the Inland Revenue come armed with a warrant to search a man's home, it seems to me that he is entitled to say: "Of what offence do you suspect me? You are claiming to enter my house and to seize my papers." And when they look at the papers and seize them, he should be able to say: "Why are you seizing these papers? Of what offence do you suspect me? What have these to do with your case?" Unless he knows the particular offence charged, he cannot take steps to secure himself or his property. ...read more.

Conclusion

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 Parliam 1 Introduction to the study of law of the constitution (1885) 2 http://www.revision-notes.co.uk/revision/918.html 3 http://www.ourcivilisation.com/cooray/btof/chap180.htm 4 http://news.bbc.co.uk/1/hi/magazine/3714864.stm 5 Constitutional and Administrative Law page 96 ...read more.

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