The rule of law and a separation of powers are constitutional principles, which seek to impose limits on the exercise of governmental power. How effective are they as a means of constitutional control in the United Kingdom?
The rule of law and a separation of powers are constitutional principles, which seek to impose limits on the exercise of governmental power. How effective are they as a means of constitutional control in the United Kingdom?
In order to answer this question I will break it down and deal with each topic separately starting with the Rule of Law. I will then move on to the separation of powers and finally I will discuss the relationship between the two principles and their effectiveness as a means of constitutional control in the United Kingdom.
The rule of law is one of the doctrines at the heart of the constitution of the UK and has it roots in theories developed in the Middle Ages. It is concerned with the allocation of power and the control of the bodies that exercise it. Aristotle stated that 'the rule of law is preferable to the rule of any individual'. This sentiment appears to form the platform on which the modern concept of the rule of law is based. However the rule of law means different things to different people and at this stage it will be helpful to look at some of the definitions that have been put forward by our more influential writers.
Dicey divided the doctrine of the Rule of Law into three concepts. Firstly: No man is punishable or can be made to suffer in body or goods except for a distinct breach of law established in 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 in authority of wide, arbitrary, or discretionary powers of constraint.
Whilst the idea that government should be constrained in its ability to make arbitrary or secret laws is on the face of things a noble one, in that a citizen cannot be expected to comply with the law if he is unable to ascertain what the law is. The idea that the executive should not have arbitrary powers is in today's society unworkable e.g. Are we to expect every police officer to report every transgression of the law? (The workload placed on the crown prosecution service would surely cause it to grind to a halt) Or are we to make civil servants in welfare offices stick rigidly to cast iron rules when dealing with cases of hardship, unable to take individual circumstances into account when making a decision? (This would undoubtedly lead to unnecessary suffering in many deserving cases). In many cases the bodies that are given arbitrary power have grievance procedures in place to protect citizens that are affected by them. Thereby limiting the likelihood of individual civil servants abusing their powers.
Secondly: No man is above the law; every man and woman, whatever be his or her rank or condition is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.
Again it appears that Dicey has too narrower perspective on this issue. It can be plainly seen that for society to function smoothly certain sections of the community must be allowed limited immunity from the ordinary law. E.g. the emergency services need immunity from certain road traffic legislation in order to save life and limb. Members of Parliament are granted ...
This is a preview of the whole essay
Secondly: No man is above the law; every man and woman, whatever be his or her rank or condition is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.
Again it appears that Dicey has too narrower perspective on this issue. It can be plainly seen that for society to function smoothly certain sections of the community must be allowed limited immunity from the ordinary law. E.g. the emergency services need immunity from certain road traffic legislation in order to save life and limb. Members of Parliament are granted immunity from the law of defamation under the privileges of parliament. There are many more examples of certain citizens enjoying immunity from the law that others do not have. However if this statement is taken to mean that everyone must be accountable for their actions under the law, then it is a powerful constraint upon those who seek to abuse their power.
Thirdly: The general principles of the constitution (for example, the rights to personal liberty, or the rights to a public meeting) are, with us, the result of judicial decisions, determining the rights of private individuals in particular cases brought before the courts.
It is true to say that many of our rights have come about as a result of judicial decisions. However Dicey fails to take into account the supremacy of Parliament, and being the supreme power can enact any legislation it likes in order to restrict a citizens freedoms even if that is contrary to the rule of law.
Raz says: The rule of law is a political ideal that a legal system may lack or may possess to a greater or lesser degree. That much is common ground. It is also to be insisted that the rule of law is just one of the virtues which a legal system may possess and by which it is to be judged. It is not to be confused with democracy, justice, equality (before the law or otherwise), human rights of any kind or respect for persons or for the dignity of man. A non-democratic legal system based on the denial of human rights, on extensive poverty, on racial segregation, sexual inequalities and religious persecution may, in principle conform to the requirements of the rule of law better than any of the legal systems of the more enlightened Western democracies.
Raz says that morals are not important with respect to the rule of law. It is the certainty of the law that is important. With respect to his view on the certainty of the law he appears to be in broad agreement with Dicey. However it appears that according to Raz the law does not have to be fair or equitable it just has to be clear, accessible and capable of being obeyed.
There are several examples of the courts upholding the rule of law and by doing so curtailing the use of power by the executive. The case of Entick v Carrington 1 is an example of the court asserting the principle that the executive cannot lawfully assume powers which are not known to the courts, i.e. if no statute or common law right authorises the invasion of the rights of an individual then such an invasion is not lawful.
In M v The Home Office2 the court ruled that the Home Secretary was not able to claim Crown immunity when an action was brought against him for a tort committed or authorised by him in his official capacity. The Crown itself could not be found in contempt, but a minister or government department could. Thereby upholding the principle that the executive is not above the law.
However there are also examples of the government using its legislative power in ways, which are contrary to the rule of law. In Burmah Oil v Lord Advocate3 the company was successful in its claim for compensation against the Crown for the destruction of its oil installations in Burma during the Second World War. Parliament shortly after the decision passed the War Damages Act 1965 with retrospective effect. This denied Burmah Oil and any others who may have had a claim their entitlement to compensation. This is in direct conflict with Dicey's assertion that Laws should not be retrospective.
In R v Inland Revenue Comm ex.p. Rossminster4 the House of Lords ruled in favour of the Inland Revenue despite having major reservations regarding the wide-ranging powers bestowed by section 20of the taxes management act 1970. Lord Scarman said that what Lord Camden CJ said in Entick v Carrington remains good law today. This means that although the making of laws, which bestow wide ranging and arbitrary powers, goes against the principle of the rule of law, the courts must uphold it.
The separation of powers is again a doctrine that is at the heart of the UK constitution. We have in this country what might be described as a weak separation of powers, in that the executive and the legislature are fused, but the judiciary is independent of both Parliament and the executive. However the office of Lord Chancellor links them.
Each body has its own responsibilities, which I will briefly outline.
The executive must conduct government according to the rule of law; it is responsible for the formulation of policy and for the maintenance of law and order, the promotion of social and economic welfare, the administration of public services, the defence of the realm and foreign affairs.
The legislature is responsible for making new law and repealing old laws according to the policies of the executive.
The judiciary are responsible for the interpretation of the legislation and its application with respect to the case before them.
Each body must work within their own allocation of power.
The judiciary appear to be very keen that each body does work within its own allocation of power and will be unafraid to say when a member of the executive has exceeded their powers, conversely it will refuse jurisdiction when lawful authority is not being abused.
In support of this argument I will use the following cases.
In R v Secretary of State for the Home Department, ex.p. Fire Brigades Union5 the House of Lords found that the home secretary had acted unlawfully in using the prerogative in a way, which defeats the will of Parliament.
Whereas in Chandler v DPP6 The House of Lords refused to hear the case on the grounds that the evaluation of threats to national security is for the government of the day and not for the judiciary.
It can be seen from the above that the Rule of law and the Separation of powers can and do impose limits on the exercise of governmental power, however neither can be wholly effective against Parliamentary supremacy, because each is bound to work within the confines of the law and the law is made by Parliament.
Bibliography
Constitutional & Administrative Law
Third Edition 2001
Hilaire Barnett.
Cavendish Publishing Limited
Cases & Materials on Constitutional & Administrative Law
Sixth Edition 2000
M Allen & B Thompson
Blackstone Press Limited
The Changing Constitution
Fourth Edition 2000
J Jowell & D Oliver
Oxford University Press
Nutcases Constitutional & Administrative Law
Second Edition 2000
M Spencer & J Spencer
Sweet & Maxwell
Entick v Carrington (1765) 19 St Tr 1030 Court of Common Pleas
2 M v The Home Office (1994) 1 A.C. 377
3 Burmah Oil v Lord Advocate (1965) A.C.75
4 R v Inland Revenue Comm ex.p. Rossminster (1980) AC.952
5 R v Secretary of State for the Home Department, ex.p. Fire Brigades Union (1995) 2 A.C.513.
6 Chandler v DPP (1964) AC 374
