The rule of law is seen as being one of the most fundamental doctrines or principles of the UK constitution.

          Although Dicey’s principles of the rule of law have had a lasting influence on constitutional thought, Dicey’s concept has been criticized. The concept of Dicey was familiar to ancient philosophers such as Aristotle, who wrote “law should govern”. This concept largely conflicted with another fundamental principle in the UK constitution – the Parliamentary Sovereignty. In ancient, rule of law comes from the natural law which is created by God. As KC Wheare explains, the rule of law is in accordance with natural law and this is a ‘higher law’ than a constitution. In other words, even the Parliament must obey the rule of law. However, parliamentary sovereignty could have overridden the rule of law and destroy the natural law. For example, in Burmah Oil v Lord Advocate, the decision in House of Lords was Burmah Oil Company should receive compensation for their destroyed plantations. But this result was frustrated by the passing of a retrospective Act of Parliament – the War Damage Act 1965. Therefore, the Parliament had no obligation to pay the compensation. Under the Act, it stated that taking or destroying property in the course of fighting the enemy did not give rise to any claim for compensation, whether that was done by the armed forces of the Crown or by individuals taking arms to defend their country or by the enemy. In this case, the Parliament has excessive powers to make retrospective laws which contrasted with Dicey’s first principle. Past events should not be affected by the future laws. Due to the parliamentary sovereignty, the Parliament still have the right to do so. Parliament could override the common law courts and the courts lacked ability in making judicial decisions. The court’s decision had been quashed by the Parliament and hence the common law failed to protect human rights. Generally, no one thought that there was any rule that the prerogative could be exercised by talking property required for defence in wartime without making any payment for it. There is no sense of fairness and the Parliament was enacted the law for their own benefits. In this case, is there protection of human rights, even in emergency situation? Does the Lord Bingham’s view make any sense? Obviously in the UK society, there is abuse of parliamentary sovereignty powers rather than what Dicey’s focus on the elected accountability of Parliament. As Lord Hope said: “Parliamentary sovereignty is an empty principle if legislation is passed which is so absurd or so unacceptable that the populace at large refused to recognise it as law.”  As we all know, statute is passed by Parliament, statutes can be made without the citizens’ consent. That is not needed for the citizens to agree or disagree, they just have to obey the laws whatever they stated.

          Once parliamentary sovereignty is the fundamental principle of UK constitution, does there still remain ‘no man is above the law’? It is publicly known that Parliament is the principle law-maker and laws passed by Parliament cannot be declared void by the courts. The question is whether the courts should follow parliamentary sovereignty or the rule of law? Burmah oil case told it. The Bill of Rights stated that the freedom of speech, debates or proceedings in Parliament ought not to be questioned in a court otherwise they will be punished. The courts cannot interfere Parliament to exercise their functions itself. Besides, the judges can enjoy judicial independence to apply law independently by making their own decisions. However, in Burmah Oil case, since the new law is passed, the judges still have to follow and interpret the statute although they disagree with the statute. Dicey said ‘equality before the law’, there should be equality under the law; by then should all be treated the same in all circumstances? For example, the Sovereigns enjoy legal immunity from criminal liability under the State Immunity Act; by then should all of the citizens also have to enjoy the same immunity as well?  Karl Marx insists that law represents the interests of the powerful within society; law is the reflection of economic power within society. In his opinion, there is no equality in society. The power which is used to exploit the powerless; for example, employers and employees are classified in different groups or people, hence they have different obligations by the law. This reflected the imbalance of power. Normally, there is no equality under the law, specified classed of individuals are treated differently for public policy reasons. Dicey’s rule of law failed to take account of the “body of special rights, prerogatives and immunities”. Thus, Dicey’s second postulate remains unclear, it is impossible to treat all classes of people in the same way.

          In the UK, minister and other public authorities have many powers that the ordinary person has not got. For example, local authorities have statutory power under certain conditions to buy land compulsorily. According Lord Bingham’s third sub-rule, the laws of the land should apply equally to all. This concerns the equality before the law in Dicey’s second postulate. In fact, the local authority has the power to purchase private property compulsorily without the owner’s permission, for example to build a new road. Thus, the homeowner will suffer in goods without breaching any law which did not support Dicey’s first postulate. So, do the individuals enjoy equality of land? Do the land laws apply equally to all?

          Besides, the police have powers of arrest, stop and search when they have ‘reasonable grounds’ for suspecting certain facts. Under the Police and Criminal Evidence Act 1984, the police have the power to stop and search a person’s vehicle, property or anything which he has ‘reasonable grounds’ for suspecting of stolen or prohibited items. Does ‘reasonable grounds’ ensure the police to act within the scope of power? What is the range of ‘reasonable grounds’? In fact, there is lack of clear legal limits. For example, the police have reasonable grounds for suspecting a person had stolen or prohibited items, the detention and search is lawful even no evidence was found. Thus, individual rights and freedom have been affected.        

           Since 2000, there are extreme broad powers of local authorities and over five Acts of Parliament and numerous regulation, rules and orders which provide for special counter-terrorism powers and offences. Under the Terrorism Act 2000, police are allowed to stop and search the people without giving any reason. This excessive power was used against the peaceful protesters and ethnic minority groups. The Terrorism Act also stated that the Parliament or the government needs not to provide any warrant to command the police to perform any specified acts. In other words, the police have the rights to arrest and detain anyone whom to be suspected. After the 911 tragedy in 2001, The Anti-terrorism, Crime and Security Act was passed which allowed for the indefinite detention of foreign nationals who were suspected to be terrorists. Under this law, individuals could be detained for an unlimited period at a maximum security prison although never being charged or convicted of any offences. On Dicey’s view, the individual should have only been charged or convicted as if he breached the law and the courts confirm it. However, emergency laws had ignored the rule of law, proclaiming that anyone who was suspected to be terrorist could be detained. The individual may suffer in body even though no charge was brought against them. In the famous Belmarsh case, the House of Lords said that the anti-terrorism measures were incompatible with Convention rights, but the Home Secretary said that the men would remain in prison under the law. The anti-terrorism measures are absurd because the Home Secretary can detain anyone including those who are not guilty. Where is the equity? Where is the right to liberty? The laws are ‘illegal’ and the Parliament should abolish the laws. Lord Nicholls in his ruling, said: “Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law.” In my view, it means ‘punishment’ before the courts confirm it. In addition, the courts have to prove the case before a person can have his liberty. Why not the person can have his liberty until the court proved the person has breached the law? Dicey’s first principle is ambiguous, it excludes preventive detention. Thus, does individual freedom still exist under this law? Clearly, arbitrary power is there, permitting the police to act in an unregulated manner and unfairly affect the individual. These actions contrasted with Dicey’s first principle, “the absence of arbitrariness”; and Lord Bingham’s fourth principle of rule of law, ‘Ministers and public officers at all levels must exercise the powers…without exceeding the limits of such powers and not unreasonably.’ Under the laws, the police have widely broad powers; and there is almost no limit of such powers. They have rights to do so to prevent terrorism rather than to protect the individual freedoms. Since the law is there, the individual is difficult to challenge government official and contend that they had abused their wide discretionary powers.

           Generally, the Human Rights Act 1998 affected the principle of rule of law. In my words, HRA protects individual rights hence the rule of law. The Convention rights bind on all public authorities, including courts, which act unlawfully if they act incompatibly. The Act proclaimed that the Convention Rights is a higher status than statute. The Act requires that judges interpret legislation ‘so far as it is possible to do so in a manner compatible with Convention Rights’. Also, Lord Chancellor considered that in 99% of cases of the courts will be able to interpret and apply UK legislation compatible with Convention Rights. Thus, in 2004, The Anti-terrorism, Crime and Security Act was replaced since the court ruled that indefinite detention breached human rights law. However, in 2005 to 2011, the laws which were replaced still affected the human rights. In 2005, the Prevention of Terrorism Act authorized control orders to restrict their movements, such as curfew up to 16 hours per day. Therefore, the citizens did not enjoy individual freedoms under these laws. In Lord Bingham’s fifth sub-rule, ‘the law must afford adequate protection of fundamental human rights.’ Does the law actually adequately protect the human rights? Is HRA sufficient to protect human rights?

            In fact, there are six Acts increased the power of state to interfere with the individual rights for public policy reasons. The counter-terrorism laws are dangerously over-broad and have largely affected vast numbers of people. The Terrorism Act 2006 seriously limits the freedom of speech and disrupts the electronic system. Broad new speech offences infringed free speech rights and criminalizing careless talk. Many offences are linked to the broad meaning of terrorism and brought to the criminalization of large numbers of people, such as the banning of non-violent political organizations and minority ethnic groups. The state declared that they have rights to protect its citizen from terrorism. In fact, it conflicted with the protection of individual freedom even in the national emergency. They would rather prevent terrorism rather than protect the human rights. For Dicey, Parliament should not pass laws which would infringe individual rights and freedoms. The problem with this, Parliament thought the terrorism laws may only affect a certain section of society; for example prisoners, terrorist suspects and paedophiles. Actually, they has affected large numbers of people.

            Normally, the common law courts protect human rights by providing remedies for the individuals. For example, if an individual is unlawfully detained by the police, they can sue in an action for false imprisonment. However, the courts can only protect the individual if in fact particular right has been recognized under statutes. In Malone v MPC, Sir Robert Megarry noted that there is no right under statute, the judge cannot decide to raise the protection of right to privacy, ‘only Parliament can create such right’. Therefore, protection of human rights through common law is basically curtailed by parliamentary sovereignty, as we can see in the discussion in Burmah Oil case. Thus, Parliament can simply override the protection provided by the courts by passing statute which affected individual freedoms. For Dicey’s third postulate, unwritten constitution protects individual right instead of written constitution. Lord Bingham’s above view stated, “the role of courts as guarantor of legality and individual right…”  Their views were not relevant to the UK society, by looking through those pass events, statutes such as Bill of Rights and the HRA have given more protection on human rights than the common law. Thus, unwritten constitution where the common law accords legislative supremacy to Parliament, the existence of the rights for the citizen may be difficult to imagine.

            As conclusion, I disagree with the above view of the rule of law by Lord Bingham. There are good reasons to believe that the rule of law is merely a slogan. For example, if many citizens are commonly aggrieved by the government actions, the media can be employed to influence the government; however, none of these avenues may reach the desired result. The fact is the law in the modern era is universally acknowledged to be a human creation. It remains impossibility to conceive that law could be placed above human will, it can never be placed a ‘government of men’. Law is always changing to fix on the modern phenomenon, perhaps Dicey’s rule of law might be entirely ignored someday. Time may tell.

(3,164 words)

Bibliography

Books

Barnett H, Constitutional & Administrative Law, (9th edn, Routledge, 2011)

Parpworth N, Constitutional & Administrative Law, (5th edn, Oxford, 2008)

Dicey A, Introduction to the Study of the Law of the Constitution (10th edn, Macmillan, 1959)

Aristotle, The Politics, (Penguin, 1962)

Pollard D and others, Constitutional & Administrative Law, (4th edn, Oxford University Press, 2007)

Ryan & Foster, Constitutional & Administrative Law, (2nd edn, Hodder Education, 2012)

Jowell J, “The Rule of Law Today” in J. Jowell and D. Oliver, (eds) The Changing Constitution (6th edn, Oxford University Press, 2007)

Loughlin M, Foundations of Public Law, (Oxford University Press, 2010)

McEldowney J, Public Law, (3rd edn, Thomson Sweet & Maxwell, 2002)

Articles

Lord Bingham, ‘The Rule of Law’, [2007] 66 CLJ 67

Raz J, ‘The Rule of Law and its Virtue’, [1977] 93 LQR 195

Lord Steyn, ‘Democracy, the Rule of Law and the Role of Judges’, [2006] EHRLR 243

Electronic Sources

Rozenberg J, ‘Mea Culpa, Lord Bingham’

, accessed 3 April 2013.

Law Report: Entick v Carrington [1765] EWHC KB J98 , accessed 4 April 2013.

‘Terror detainees win Lords appeal’

 , accessed 6 April 2013.

Law Report: Burmah Oil Company v Lord Advocate (1964)

, accessed 5 April 2013.