“In the mouth of British Constitutional Lawyer, the term “the rule of law” seems to mean primary a corpus of basic principles and values, which together lend some stability and coherence to the legal order.” (TRS Allan). In the light of the quote above, I will discuss the relevance of the concept of the rule of law to current constitutional arrangements in the UK. I will be looking at the current constitution in the UK, the doctrine of the rule of law and the relevance of the doctrine in the operation of state power.
The UK is said to have an “unwritten constitution” because it has no single codified documentary constitution. However, most of the constitution does exist in the written form of treaties, statutes and court judgements. Due to the absence of a formal written constitution in the UK, there is no positive statement of the basic principles governing state actions and no guidelines that could be used to assess the legitimacy of government action. Lawyers and politicians have used the concept of the rule of law to provide such a measure.1
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The rule of law is capable of being interpreted differently by different people. Nevertheless, it is a recognized principle of the English constitution, which is frequently used to signify a notion of “law and order.” At its broadest, it is a framework that constrains arbitrary use of power. The concept of the rule of law dates back to many centuries. The Greek philosophers recognized the need for a principle of “the rule of law” to control the powers of the government. In the study of the constitution, it is still relevant in helping to interpret the relationship between the individual and the state. However, the courts do not enforce the principle directly, and there is no legal justice for behaviour that contravenes it. It is therefore used as a guiding principle as the exact meaning is not entirely clear.
In England, the introduction of the Magna Carta was a prime example of the rule of law. King John was forced to submit to the law and put limits on feudal duties and fees by the Great Charter. Like the “rule of law” can be interpreted differently, many writers have put definitions forward. Jurist A.V Dicey puts forward the most useful and influential definition of the rule of law. Dicey’s own reasons about the existence of the rule of law depended in large part on the work of Blackstone, Coke and Austin. His definition contained three essential elements.3
“It means the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness, of prerogative or even wide discretionary authority on the part of the government… a man may be punished for breach of law, but he cannot be punished for anything else”.4 By this he basically means that no one be it the government or an individual is above the law, and that everyone should abide by it. Dicey then took this further and said that ordinary courts would have the right to punish offenders. A case that reflects this factor of Dicey’s rule of law is Congreave v The Home Office5. The case concluded that ministerial discretion could be challenged in court if exercised arbitrarily or improperly.
Another case that will have relevance to this factor is the case Malone v UK6, where 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 the European Court of Human Rights (ECHR) under article 8, which deals with protecting the individual as it values a person’s autonomy. “Its object is essentially that of protecting the individual against arbitrary interference by the public authorities in his private or family life.”7
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 Carrington8 highlights Dicey’s ideas; in this case, the courts affirmed that a warrant issued by the home secretary for entry into private property to seize allegedly seditious material was not sufficient and was against the law and amounted to trespass. Thus, 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 UK9.
“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.”10 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 a pen.”11 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 criticize as it is occasionally regarded as outdated. Dicey’s definition seems 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 Laughton12 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 defining 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 adequate controls and checks do not protect it. Also, it could be interpreted to mean powers that have a direct impact upon individual rights. A case that expounds this is Liversidge v Anderson13 , where the home secretary assumed he had the belief that detention without a warrant was justified.
If the first definition of arbitrary powers were used, then the rule of law would not apply to our constitution, which relies 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 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, practical reliance on discretionary powers is imminent to achieve extensive aims in almost all socio-economic life.
It isn’t easy to see how the government would work without resorting to wide discretionary powers. More emphasis is put on controlling discretionary power and accountability methods than eliminating discretionary power and finding more successful ways to structure, confine, and check necessary discretionary powers (Refer to case Padfield V Minister of Agriculture)14. From this, it is obvious that there is a 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 the law; a prime example is the refusal of bail.
The Anti Terrorism Crime and Security Act in 2001 did not comply with this principle ei. Accordingding to this act, suspected international terrorists can be detained by order of the Home Secretary. In the case of M v Home Office15, the Home secretary abused his discretionary powers by sending an asylum seeker back to Zaire against the court’s 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 complete removal from Dicey’s exposition of the rule of law would be inappropriate to the British constitution.
After introducing the Crown Proceedings Act of 1947, there were problems as to what capacity the crown could be held liable; after the Act came into force, it became easier to sue the Crown.16 Dicey emphasized 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 its purpose is to reflect the morality of that society. Moreover, certain privileges remain with the sovereign from being sued, e.g. free speech granted to MPs. Dicey’s main concern was distinguishing 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. 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”17. However, like every aspect of the rule of law, this needs to be context 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 the law,” as it is possible of an orthodox interpretation. Almost all legislation, in fact, makes 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 examples of Dicey’s notion of equality being upheld. The law has to be fair and free from discrimination; also, all the members of society should have an equal right to legal remedy18. The third feature of Dicey’s rule of law theory focuses on what he saw as the constitutional importance of the rule of law. He suggested the common law provided better protection of the rights of individuals than a codified system of law would.
This causes major conflicts on both sides of these issues. The common law can provide better foundations in protecting rights as it contains hundreds of years of morality, whereas the Bill of rights is just a document. Many of the rights now come from the European convention by the Human Rights Act 1998.19 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 emphasized the certainty and regularity of the legal rules rather than the content of the rules. Although he says decisions should be made according to procedural fairness, he is more concerned about regular enforcement and application rather than content. Writers have now begun to expand the concept by including these issues (Delhi Declaration 1959).20
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 of 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. Nevertheless, we all practice the principles of law every day, so we do have a basic idea of what the law entails. Dicey’s principle of the rule is archaic; the general principle is still intact and forms part of the British Constitution today. The upholding of morality, faith, and reasoning in the judiciary gives the rule its eternal constitutional relevance rather than written rules.
Bibliography. Books Used
- Gary Slapper and David Kelly, The English Legal System, 5th edition
- Hilaire Barnett, Constitutional & Administrative Law (6th edn Cavendish, USA 2006)
- Anthony Wilfred Bradley, Keith D. Ewing, Constitutional and Administrative Law (14th edn Pearson Education, UK 2007)
- John Alder, Constitutional and administrative law (6th edn Basingstoke, New York 2007)
- Alex Carroll Constitutional and administrative law (4th edn Pearson Longman, UK 2007)
- Helen Fenwick Constitutional & administrative law (Cavendish, USA 2007)
- David Polland Constitutional and administrative law (4th edn Oxford University Press, UK 2007)
- John Alder, Constitutional and administrative law (6th edn Basingstoke, New York 2007)
- Joanne Coles Constitutional and administrative law (2nd edn Hodder Arnold, London 2006)
- Congreave v The Home Office  QB 629
- Malone v United Kingdom  EHRR 448
- Entick v Carrington  19 St Tr 1030
- T v UK (2000) 30 EHRR
- Merkur Island Shipping Corpn v Laughton 
- Liversidge v Anderson  AC 206
- Padfield V Minister of Agriculture1  HL
- M v Home Office  1 AC 177
1.Hilaire Barnett, Constitutional & Administrative Law (6th edn Cavendish, USA 2006)
2.Anthony Wilfred Bradley, Keith D. Ewing, Constitutional and Administrative Law (14th edn Pearson Education, UK 2007)
3.Pearson ‘Constitutional and Administrative Law’ http://books.google.co.uk/books?id=mRmRnlpCacMC&printsec=frontcover&vq=constitutional+administrative+law+books#PPP1,M1 accessed 17th December 2007
4.John Alder, Constitutional and administrative law (6th edn Basingstoke, New York 2007)
5.Congreave v The Home Office  QB 629
6.Malone v United Kingdom  EHRR 448
7.Alex Carroll Constitutional and administrative law (4th edn Pearson Longman, UK 2007)
8.Entick v Carrington  19 St Tr 1030
9.T v UK (2000) 30 EHRR
10. Helen Fenwick Constitutional & administrative law (Cavendish, USA 2007)
11.UK Learning ‘A.V Dicey’s comment on the rule of law’ http://www.revision-notes.co.uk/revision/918.html accessed 8th December 2007
12.Merkur Island Shipping Corpn v Laughton 
13.Liversidge v Anderson  AC 206
14.Padfield V Minister of Agriculture14  HL
15.M v Home Office  1 AC 177
16.David Polland Constitutional and administrative law (4th edn Oxford University Press, UK 2007)
17.Everything2 ‘Dicey’s views on the rule of law and the supremacy of parliament http://everything2.com/index.pl?node_id=1373964 accessed 10th December 2007
18.Hilaire Barnett, Constitutional & Administrative Law (6th edn Cavendish, USA 2006)
19.John Alder, Constitutional and administrative law (6th edn Basingstoke, New York 2007)
20.Joanne Coles Constitutional and administrative law (2nd edn Hodder Arnold, London 2006)