To what extent does Dicey's model of the Rule of Law reflect current practice in the United Kingdom constitution?

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To what extent does Dicey's model of the Rule of Law reflect current practice in the United Kingdom constitution?

The Rule of Law

A.V. Dicey is credited by some with coining the phrase "the Rule of Law", although this is a matter of dispute . Dicey was very specific in stating what he meant by the rule of law, espoused in The Law of the Constitution.

Dicey stated that the rule of law comprises three elements. In the first place, according to Dicey, it meant that no one should be punished except for a distinct breach of the law as established in an ordinary legal manner before the ordinary courts of the land. The natural consequence of such an element in Dicey's opinion would be the absence of arbitrary, discretionary or prerogative powers of restraint vested in the executive. In other words, the rule of law reflected the hegemony of regular law above arbitrary power.

Secondly, according to Dicey's theory, no man should be above the law and, indeed, every man should be subject to the ordinary law of the ordinary tribunals. Therefore, according to Dicey's principle, the rule of law applied equally to the prime minister and government ministers as to citizens. In other words it sought to ensure equality before the law.

Thirdly, Dicey argued that constitutional principles in the United Kingdom, such as the right to personal liberty, resulted from judicial decisions rather than the principles of an overarching constitution, and that it is through judicial decisions that private individuals sought a determination of their rights. According to such a principle, the constitution was "judge made".

Dicey has been criticised for his suggestion that the rule of law is inconsistent with or comprises an absence of discretionary powers. In particular, Professor Jennings has suggested numerous discretionary powers that were in existence in Dicey's time. The tendency of the executive to govern through discretionary power has increased, it can be argued, between the C19 and today. At first sight, this dictum implies that there should be no special laws which apply to the executive but not the ordinary citizen, however, it is clear that many bodies do enjoy special powers.

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One example of such a body is the Police, who have wide powers of arrest under the Police and Criminal Evidence Act 1984 and public order legislation, including the Terrorism Act 2000. Further such powers are conferred on officers of the Inland Revenue: see R v Inland Revenue Commissioners, ex p Rossminster Ltd [1980] AC 952. The second half of the C20 and the C21 has seen widespread growth in the discretionary powers which are open to public bodies, necessitated by the need to administer a large welfare state. Such powers can be seen in the legislation which surrounds the ...

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