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.

The Supreme Court of the United States agrees that their detention is a violation of everything for which America stands. In fact, the Supreme Court has said clearly on three occasions that all the Guantanamo detainees deserve the protection of the rule of law and that they must have their day in court.

In the UK just two detainees have so far successfully challenged their detention, with three Court of Appeal judges deciding in August that the government was legally entitled to continue holding 10 other men who appealed.  Solicitors are now attempting to overturn the decision in the House of Lords.’ 

The second concept is that ‘Not only is no man above the law, but every man, whatever his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.’

But how far can this be said to be correct - ‘subject to the ordinary law of the realm’, for example, parliamentary privilege, grants an MP a total defence to defamation proceedings.  Ann Widdecombe (MP and ex-Minister) sought the Speaker’s permission during May 1997 to issue a statement to the House of Commons indicating her account of events leading up to Michael Howard’s decision, as Home Secretary, to dismiss Mr Lewis the Prisons Chief Executive.  She was aware that by making the statement in the House, there could be no possibility of Mr Howard issuing proceedings against her.  The Speaker refused her request, but she made the statement during a debate on the Queen’s Speech on 19 May 1997.  It lasted 45 minutes and prompted Michael Howard to retort that she should not question his integrity.

On 18th November the Commons used the Parliament Act to force through the Hunting Bill.  Following disagreement between the Commons and the Lords, the Parliament Act was invoked for only the fourth time since 1949 to force a Bill through.

The Bill immediately received royal assent and so it is now law.  Hunting with dogs will be banned in England and Wales from 18th February 2005.  This ban includes not only fox hunting, but also deer hunting and hare coursing.  The Countryside Alliance however, is now launching a legal challenge to the ban based on claims that the 1949 Parliament Act used to force it through was illegitimate.  In conjunction with a full ban on fox-hunting, the bill proposes a minimum penalty of £5,000 on individuals who breach the ban.  The Alliance in one sense will therefore not follow the law against hunting.  If any person in breach of this law is not punished and gets away with it, why can anyone else not?

‘Amenable to the jurisdiction of the ordinary tribunals’ i.e. dealt with in the ordinary civil/criminal courts.  What about the growth of special administrative tribunals?  For example, Inland Revenue disputes are referred to general or special commissioners.  Housing Benefit disputes are referred to the Housing Benefit Review Board.

The third concept proposed by Dicey is that ‘the general principles of the constitution (e.g. right to personal liberty, right to public meeting) are with us as a result of judicial decisions determining the rights of private persons in particular cases brought before the courts; whereas under many foreign constitutions the security (such as it is) given to the right of individuals results, or appears to result, from the general principles of the constitution.’

This concept basically means that there is no need for a bill of rights because the general principles of the constitution are the result of judicial decisions determining the rights of the private person.

This may be true, but many believe the individual’s rights would be better protected if the UK had a Bill of Human Rights, a matter which has been addressed by the new Labour Government, in the enactment of the Human Rights Act 1998.

DeSmith considers that Dicey’s concepts do not require detailed analysis today.  DeSmith considers that the rule of law is usually intended to imply two things; powers exercised by politicians and officials must have a legitimate foundation.  They must be based on authority conferred by law; and the law should conform to certain minimum standards of justice, both substantive and procedural.

Examples of such statements could be that the law affecting individual liberty should be reasonably certain and predictable.  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.  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.  So it seems to me, as a matter of construction of the statute and therefore of the warrant – in pursuance of our traditional role to protect the liberty of the individual – it is our duty to say that the warrant must particularise the specific offence which is charged as being fraud on the revenue.’

The benefits of the rule of law are countless.  It proposes that government should have restraints.  Not possess discretionary powers.  There should be legal controls over the government’s activities and no one including government officials should be above the law.  These principles if successfully attained within a society will result in national stability and security of citizens.

 

 How relevant to 21st  and Society is the Rule of Law?

Supporters of a written and clearly defined constitution believe that as society has had its liberties more and more encroached on by central government, the Rule of Law is more important now than ever. They claim that central government has sought and seeks to undermine the three basic tenets of Dicey’s code with an increase in things such as:

• the Official Secrets Act 
• the attempt to remove an individual’s right to trial by jury 
• the activities of the Secret Service (especially after September 11th) 
• removing what were considered traditional rights (such as the removal of the workers right at GCHQ to belong to a trade union under the Thatcher government (though brought back since 1997) 
• The gagging clause that now has to be signed by those in the Civil Service after the Clive Ponting and Belgrano issue shortly after the end of the Falklands War 

However, individuals still retain a great deal of personal freedom and many individuals will never be affected by the Official Secrets Act or the activities of Britain’s secret services (though they may not know if they are being investigated or not!) It is agreed with some justification that a modern society needs bodies like MI5 and MI6 simply because there are a tiny number of individuals who wish to subvert society and have to be dealt with accordingly. A law-abiding individual, it is argued, need never worry about such organisations.

Also there are bodies that theoretically oversee the activities of government agencies and their work – such as the Council of Tribunals and the Parliamentary Commissioner. It is argued that these bodies help to protect the rights of the individual at the expense of any incursions into their personal freedom by government agencies.

In contrast, a key aspect of rule of law is "limitation;" i.e., rule of law puts limits on the discretionary power of the government, including the power to changes laws. This is why the western juridical tradition is Roman, not Greek. One of the major problems of ancient Greek democracy is that its conception of law does not contain the idea of limitation. The Greek word "eleutheria," commonly translated as "freedom," connotes a freedom that extends into the principle that what pleases the people is law. In other words, there were no limits to the (democratic) governments of ancient Greece, and the popular will, be it short-term passion or long-term rationality, would always become law if the demos so wished. "As soon as law lost its sacred character, popular sovereignty was placed above the law, and, by that very act, government by laws was once again fused and confused with government by men" (Sartori, 1987, p. 307).

Second, if the government is to be restricted in its exercise of discretion, the government has to follow legal procedures that are pre-fixed and pre-announced. As F. A. Hayek puts it, rule of law "means that a government in all its actions is bound by rules fixed and announced beforehand -- rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan one's individual affairs on the basis of this knowledge" (Hayek, 1994, p.80). For example, in constitutional and criminal law, there is a prohibition on "ex post facto" laws, that is, no one should be punished for a crime not previously defined in law. In other words, the government cannot simply define a new crime and apply the new definition retrospectively. The rationale for this principle is that, first, the government should not be allowed to abuse its power by punishing individuals for political or other conveniences; second, it would be grossly unjust and oppressive for the government to punish someone for behavior that was not known to be criminal at the time of commission; third, to so punish individuals would result in so many uncertainties that it would create great inefficiencies.

Rule of law as a constraint on government power is well recognized, but its cognitive value in enhancing government's rationality is often less understood. Rule of law not only limits the arbitrariness of the government, it also makes the government more intelligent and articulate in its decision making. For one example, as Professor Stephen Holmes writes, "[o]nly a constitution that limits the capacity of political decision makers to silence their sharpest critics . . . can enhance the intelligence and legitimacy of decisions made" (Holmes, 1995, p. 8). For another example, the key reason why liberal democrats do not believe in the pure will theory of legality is that, without rule of law as a limit, popular will can easily be corrupted by passions, emotions and short-term irrationalities. As such, liberal democrats demand rule of law because it helps us to behave according to our long-term interest and reason.

hows 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 Parliam

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