The rule of law is seen as being one of the most fundamental doctrines or principles of the UK constitution. Indeed, Professor Jowell has described it as ‘a resilient and effective force’ behind the evolution of the United Kingdom’s constitution’. Basically the rule of law can be interpreted either as philosophical or political theory. In political society, there are arguments against to the core meaning of the concept. From the above view of the rule of law by Lord Bingham, stated that the rule of law protects the individual rights against the state and to ensure the limited government power in accordance with law. This statement has obviously emphasized the liberal aspiration and individual freedoms in the concept of rule of law. However, in the UK society, there is strong disagreement as to the concept by considering Dicey’s three postulates of the rule of law.
According to Lord Bingham, the above view which was stated in 2009 meant pretty much what Dicey had said in 1885. In recent years, Lord Bingham has contended that the principle of law can be broken down into eight sub-rules. In summary of his speech, it is ‘that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect generally in the future and publicly administered in the courts.’ Lord Bingham’s definition has strongly supported Dicey’s concept of rule of law. As we can see, Dicey’s views have continued to exert the UK influence. In Dicey’s opinion, the rule of law comprised three elements. First, no man is punishable except for a distinct breach of the law and the courts confirm it. Second, no man is above the law, regardless of rank or status, every man is subject to the ordinary law. Third, the general principles of constitution, are the result of judicial decisions determining the rights of private persons in cases brought before the courts.
Dicey’s first principle is usually designed to deny the governments have any right to make arbitrary laws or retrospective penal laws. In Entick v Carrington, in which agents of the King, acting under a warrant issued by the secretary of state, broke into the house of Entick “with force and arms” and seized his private papers. Entick was arrested. The Secretary of State made order that “to make strict and diligent search for…the author, or one concerned in the writing of several weekly very seditious papers intitled, the Monitor or British Freeholder.” Camden LJ held that Halifax (the Secretary of the State) had no right to do the act because there is no statute stated that he had the right to do so. Furthermore, Camden LJ stated “every invasion of private property, be it ever so minute, is a trespass.” Thus, the action was justified by no specific legal authority, it was common trespass, for with the Secretary of State was liable in damages. As a result, this case has shown that the civil liberties of individuals and limiting the scope of executive power. Dicey’s principle applied to ensure there is absence of arbitrariness. Moreover, the government is under the law that any actions it takes must be authorized by law, and therefore the government is obliged to obey the orders of the courts As Professor Joseph Raz stated, “the discretion of crime-preventing agencies should not be allowed to pervert the law.” Thus, Entick v Carrington demonstrates all three aspects of Dicey’s conception of the rule of law. In my opinion, in fact, this case was held in 1765, it was before the writings of Dicey’s concepts of rule of law in 1885. Basically, perhaps Dicey’s views were stated by referencing on this case. Furthermore, undoubtedly the government must obey the law and there was lack of laws in 1765, so the government cannot do anything they want which is not in accordance with law. However, today, once the delegated legislation exists, the ministers have power to make laws (but subject to the parliament sovereignty), the government acting in the name of the Crown may exercise prerogative powers which may defeat the rights of individuals. In this view, you can say that the common law courts still have the ability to protect human rights. But, how if the judges declare the subsequent legislation ultra vires in that prodecural requirement had been ignored?
In Malone v UK, the interception of communication and metering of telephone by the police had been violation of Malone’s right to respect for his private life and his correspondence. Generally, it is publicly known that interceptions of communications for the purposes of detention and prevention of crime to be carried out on the authority of a warrant issued under the hand of Secretary of State. Indeed it is a general rule of Home Secretary, but there is no statute governing the matter, which means it is not permitted under the statute. In the similar case, Malone v Metropolitan Police Commissioner, the UK courts held that there was no right to privacy in UK laws. However in this case, different conclusion was reached since it was appealed to ECHR, the court held that the unregulated tapping of telephone breached the European Convention rights. The court stated that the tapping was not illegal but contrasted with Article 8. So, the government reacted by introducing the Interception of Communication Act 1985 to control telephone tapping by the police to respect citizens’ privacy. As a result, respect for private life has generated protection against telephone interception. Dicey’s principles have affected the case. Also, Lord Bingham’s second principle stated that “Questions of legal right and liability should ordinarily resolved by application of the law and not the exercise of discretion.”