Discuss the relevance of the concept of the rule of law to current constitutional arrangements in the UK

Another case that will have relevance to this factor is the case Malone v UK, here Mr Malone alleged that police wrongly intercepted his calls and bought civil action against the police on the grounds of breach of confidence, interference of privacy and trespass.  Sir Robert Megarry dismissed the claim, so Malone took it further to European Court of Human Rights (ECHR) under article 8 that deals with protecting the individual as it values the autonomy of a person.   "Its object is essentially that of protecting the individual against arbitrary interference by the public authorities in his private or family life."  The ECHR held in Malone’s case, that the practice of interception was insufficiently grounded in the English law to allow justification under article 8(2), as a reaction to this judgement and similar cases, Interception of Communications Act 1985 and Police Act 1997 legislation was passed

The earlier case of Entick v Carrington highlights Diceys ideas, in this case the courts affirmed that a warrant issued by the home secretary for entry into a private property in order to seize allegedly seditious material was not sufficient and was against the law and amounted to trespass.  Showing that actions cannot be justified only because officials have made them, they have to comply with the law.  Another relevant case to Dicey’s first element of the rule of law is T v UK.

“It means equality before the law, or the equal subjection of all classes to the ordinary law of the land and administered by the ordinary courts”.  The second feature of Dicey’s theory was the notion of equality before the law.  What Dicey meant by this is that the law has to apply impartially and equally to all, regardless of who they are and their status.  His particular focus with this was government officials. This feature can be one of the most problematic ones as people can find it hard to accept that we are all equal before the law.  

It means the constitution is the result of the ordinary law of the land… the rights of the individual are secured by and enmeshed in the common law and not by constitutional document, which can be suspended by a stroke of pen.”  These principles if successfully attained within society will result in national security and stability of citizens. 

Out of the three constitutional doctrines it is, the easiest to criticise as it is occasionally regarded as being outdated.  Dicey’s definition seems to be reasonable and constitutionally practical at first, but it has been subject to criticism and scrutiny, suggesting it is contradicting and contains inherent flaws.  By the rule of law, all laws should be clear and open.  In Merkur Island Shipping Corpn v Laughton 1983, Lord Diplock stated “absence of clarity… encourage those who wish to undermine” the rule of law.   The source of power has to be pointed out according to the courts.  

Referring to the first factor of Dicey’s rule of law he mentions powers, this poses a problem when trying to define the powers.  An example of this can be seen when trying to define ‘arbitrary power’ it could be interpreted to mean a power that can be abused if it is not protected by adequate controls and checks. Also it could be interpreted to mean powers that have a direct impact upon individual rights.  A case that expounds this is Liversidge v Anderson [1942] where the home secretary assumed he had the belief that a detention without warrant was justified.  If the first definition of arbitrary powers were used then the rule of law would not apply to our constitution, which is reliant on delegation, arbitration and control through report and review.  The rule of law does in fact apply to every modern democratic constitution, but just in slightly different ways.  Sir Ivor Jennings a prominent critic of Dicey, mentioned a weakness of his definition, “they (Dicey etc) had no conception of the scale of duties incumbent upon a modern government which was properly concerned for the welfare of its citizens: the improvement of health, provision of education…” In today’s modern state practically reliance on discretionary powers is imminent in order to achieve extensive aims in almost all socio-economic life.  It is difficult to see how government would work without resorting to the use of wide discretionary powers. More emphasis is put on controlling discretionary power and methods of accountability then to completely eliminate discretionary power and find more successful ways to structure, confine and to check necessary discretionary powers, (Refer to case Padfield V Minister of Agriculture). From this it is obvious that there is need to part from Dicey’s strict definition to find a more constitutionally relevant model.  

No one can be detained without legal authority, but sometimes this is not present in certain circumstances even though there is no established breach of law, a prime example of this is refusal of bail.  The Anti Terrorism Crime and Security Act in 2001 did not comply with this principle either as according to this act suspected international terrorists can be detained by order of the Home Secretary.  

In the case of M v Home Office, the Home secretary abused his discretionary powers by sending an asylum seeker back to Zaire against the courts orders but this also raised issues on the legal liability of the crown.  The court may be liable “in respect of torts committed by its servants or agents”. It can be seen from this case that occasionally the government does not obey the law, suggesting that a complete removal from Dicey’s exposition of the rule of law would be inappropriate to the British constitution.   After the introduction of the Crown Proceedings Act of 1947 there have been problems as to what capacity the crown can be held liable, after the act came into force it became easier to sue the Crown.     

Dicey emphasised that the law must be obeyed, and it is superior to all other regulations. It is a feature of the society that everyone has respect for and abides by the law, as the purpose of it is to reflect morality of that society.  Certain privileges remain with the sovereign from being sued, e.g. free speech granted to MPs.  Dicey’s main concern was trying to distinguish the British system from the French system of administrative courts, which he wrongfully thought protected the administration.  Recent trends show a more coherent system of administrative law in England is developed, a procedure for raising public issues by applications of judicial review and establishment of consistent principles of public law by Administrative Court.  

Dicey’s notion of equality appears to be straightforward and simple.  It also had the agreement of Jacques Rousseau usually a critic of Dicey.  He said the sovereign “knows only the nation as a whole and does not distinguish between the individuals that compose it”.  However like every aspect of the rule of law this needs to put in a context in order to understand it.  Everyone is different so why treat them all alike and give them the same burdens, when their situations, duties and obligations are different?  This could lead us astray from Dicey’s “equality before law” as it is possible of orthodox interpretation.  Almost all legislation in fact, make distinctions between members of society according to the aims it wishes to achieve.  Acts such as the Sex Discrimination Act and Race Discrimination Act are used as examples of Diceys notion of equality being upheld.  The law has to be fair and free from discrimination also all the members of society should have equal right to legal remedy.

The third feature of Dicey’s theory of rule of law focuses on what he saw the constitutional importance of the rule of law.  He suggested the common law provided better protection of the rights of individuals then a codified system of law would.  This causes major conflicts on both sides of theses issues. The common law can provide better foundations in protecting rights as it contains hundreds of years of morality where as the bills of rights is just a document.  Many of the rights now come from the European convention by virtue of the Human Rights Act 1998.  The European Convention also reinforced the protective element of the common law and created a consensus within the member states as to what these rights should be.  

Dicey’s rules showed more emphasis on the certainty and regularity of the legal rules rather then the content of the rules. Although he does say decisions should be made in accordance to procedural fairness, he is more concerned about regular enforcement and application rather then content.  Writers have now began to expand the concept by including these issues (Delhi Declaration 1959).

In conclusion complying with the rule of law may provide a check on abuse of power.  It may provide a critical evaluation of how the power is used.  Alone it is not a comprehensive code but must be used alongside other principles, which regulate the content of the legal rules. It can be argued that the rule of law is too vague, if the law is written down on paper it would be more accessible and easier to understand and obey. On the other side codification would require unnecessary money, time and effort what is the point on devising a remedy for something that works in the first place?  Finally there are many interpretations of the doctrine of the rule of law, each having slightly different connotations.  We all put into practice the principles of law everyday so we do have a basic idea what the law entails.  Dicey’s principle of the rule archaic, the general principle is still intact and forms part of the British Constitution today. It’s the upholding of morality, faith and reasoning in the judiciary that gives the rule its eternal constitutional relevance rather than written rules.        

1999 Words

Bibliography

Books Used

1. Gary Slapper and David Kelly, The English Legal System, 5th edition
2. Hilaire Barnett, Constitutional & Administrative Law (6th edn Cavendish, USA 2006)
3. Anthony Wilfred Bradley, Keith D. Ewing, Constitutional and Administrative Law (14th edn Pearson Education, UK 2007)
4. John Alder, Constitutional and administrative law (6th edn Basingstoke, New York 2007)
5. Alex Carroll Constitutional and administrative law (4th edn Pearson Longman, UK 2007)
6. Helen Fenwick Constitutional & administrative law (Cavendish, USA 2007)
7. David Polland Constitutional and administrative law (4th edn Oxford University Press, UK 2007)
8. John Alder, Constitutional and administrative law (6th edn Basingstoke, New York 2007)
9. Joanne Coles Constitutional and administrative law (2nd edn Hodder Arnold, London 2006)

Cases Used

1. Congreave v The Home Office [1976] QB 629
2. Malone v United Kingdom [1991] EHRR 448
3. Entick v Carrington [1765] 19 St Tr 1030
4. T v UK (2000) 30 EHRR
5. Merkur Island Shipping Corpn v Laughton [1983]
6. Liversidge v Anderson [1942] AC 206
7. Padfield V Minister of Agriculture [1968] HL
8. M v Home Office [1994] 1 AC 177