Rule of Law - Constitution of UK - Separation of Powers

The Rule of Law

The 'rule of law' is an ambiguous expression, and may mean different things for different writers The rule of law is a concept which underpins the constitution of UK and is itself supported by the separation of powers. Although the concept dates from Aristotle-'the rule of law is preferable to that of any individual'- for the purpose of analysis Dicey's three-part description of the requirements of the rule of law is useful.

Dicey's Expression 'The Rule of Law'

For Dicey the expression 'rule of law' includes three distinct conceptions:The absence of arbitrary power. No man is above the law. No man is punishable except for a distinct breach of law, established in the ordinary legal manner before the ordinary courts. It requires that that there be no arbitrariness in the justice system, in particular that laws should be certain and accessible.

Equality Before The Law:

Every man regardless of his rank or condition, is subject to the ordinary law and is under the jurisdiction of ordinary tribunals. In terms of the equality before the law, the requirement has a a number of implications regarding accessibility to the courts of law, the cost of legal proceedings and the availability of legal aid and representation and the requirements of fairness in the admission of evidence into the court.

The Guarantee Of Citizen's Rights. 

The rights of individuals are best protected by the common law rather than by a code or bill of rights.

Application of Dicey's concept of rule of law in the United Kingdom

Writing in the Victorian era Professor A V Dicey, in his work 'The law of the Constitution' (1885) stated that the rule of law was one of the main features of the constitution of the United Kingdom.

Dicey's first concept

Notwithstanding Dicey's strongly expressed views there is nothing, in theory, to stop Parliament enacting legislation providing ministers, police officers, or other executive officers with wide powers to interfere with the rights and liberties of citizens. Some powers granted to the executive during wartime e.g. Riversidge v. Anderson (1942) perhaps reflect this. Social and political developments being made in the twentieth century have also led to public authorities being given wide discretionary powers to interfere with the property and commercial interests of citizens, or to determine eligibility to publicly funded assistance. For example, minister will often be given the power to determine an issue or grant a privilege, to be exercised if the minister sees fit. Prima facie it is difficult to see how any challenge could be mounted to the exercise of such a power, raising the prospect of it being exercised in an arbitrary fashion without any legal redress for those affected.

In reality the courts have developed a complex and sophisticated body of law, generically referred to as administrative law, whereby they will review the exercise of executive discretion to ensure that it has been used lawfully (i.e. intra vires). If a minister, or any other public authority, is found to have abused a statutory discretion or other power affecting the public, the courts can, through the mechanism of judicial review, quash the decision on the grounds that it is beyond the discretion vested in the decision-maker (ie it is ultra vires). Hence, ostensibly wide powers are subject to control on the basis that they have to be exercised reasonably, proportionately and fairly.

Dicey's first concept of the rule of law is also reflected in the way in which police powers have been confined in statutes such as the Police and Criminal Evidence Act 1984 (PACE). Some police officers might feel that their task would be much easier if they had an untrammelled power to stop search, arrest, and detain anyone they felt like investigating. The citizen would have very little protection from the arbitrary abuse of power, if such were the case.  Instead PACE specifies the preconditions that have to be satisfied before police powers of arrest etc can be exercised. Typically an officer must behave reasonable grounds for suspecting certain facts before exercising powers such as the power to arrest. PACE also contains strict rules on the length of time for which a suspect may be detained before being charged. A person who suspects that he is unlawfully detained to the Divisional Court of the Queen's Bench Division of the High Court for a writ of habeas corpus ordering his release. The rule will be issued if the Court is not satisfied that the detention is justified by law.

Dicey's Second Concept

It is not difficult to find examples that seem to contradict Dicey's notion that the United Kingdom constitution reflects the rule of law because the law applies equally to all. For example the monarch, in her personal capacity, is not subject to the jurisdiction of the ordinary courts of the land. Although the Crown Proceedings Act 1947 has reduced the legal immunities and privileges of the Crown in its public capacity, there are still many situations where the Crow as well as some other public bodies, enjoy a privileged position in litigation.

The public interest in the proper administration of justice has led to the rule that no civil legal action may be brought in respect of any thing or done by a judge in the exercise of his judicial functions in respect of a jury verdict, or in respect of words spoken by the parties, counsel or witnesses in the course of judicial proceedings.

Government officials have a vast range of legal rights and powers not available to ordinary members of the public. For example, to take money as income tax, to exercise a power of compulsory purchase, to deport a person. In addition, the subject who wishes to contest whether the official has exercised these powers in accordance with law is often required by law to take the matter, not to the ordinary courts of the land, but to a special tribunal.

It is submitted, however, that none of the above examples actually undermines Dicey's second concept. It is true that they all involve situations where the operation of the law is suspended in respect of certain individuals, or where individuals are prevented from securing redress before the ordinary course, but the crucial point is that law regulates all these exceptions. They are not instances of an individual, or a public body, simply determining that a given law no longer applies to them. Arguably, even the immunity of the monarch subsists at common law only for as long as the courts are willing to permit it.

Dicey's Third Concept

Prior to the enactment of the Human Rights Act 1998, the evidence to support Dicey's third concept was, at best mixed in cases such as Malone v Metropolitan Police Commissioner (1979) the court refuses to recognize any right to privacy at common law that would render telephone-tapping unlawful. On the other hand judges from time to time asserted, in cases where a party sought to pray in aid an article of the European Convention on Human Rights, that reliance on the Convention was unnecessary, because it largely reflected the values expressed in the English common law. The incorporation of the Convention effected by the Human Rights Act 1998 means that, for the first time, statute law can now be cited as the basis for a number of fundamental human rights in English law.

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