Current Practice in the United Kingdom Constitution

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

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.

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 administration of the Social Fund. Should an individual apply to the Social Fund for a loan there is no right of appeal from the discretionary decision which is made for the applicant. Such actions are governed by the Regulatory Reform Act 2001. These provisions also allow for the repeal of primary legislation via delegated legislation to remove or reduce burdens on business, at the behest of the executive.

While Dicey’s formulation makes it very clear that the discretionary power available to the executive should be limited, it doesn’t detail the mechanisms which would be necessary to achieve this end. However, as suggested above, this fault may have existed within the Diceyan formulation from the start. As detailed further below, before one is able to compare and contrast Dicey’s rule of law with current practice it will first be necessary to understand the fundamental basis on which he built his theory.

In addition to the problems Dicey’s theory faces in relation to arbitrary executive power there are further difficulties which arise with any analysis of its second limb, i.e. the belief that the rule of law is particularly relevant to the protection of equality and the notion that the law is founded on fundamental principles of fairness which can support equal treatment in the courts irrespective of the status of the individual. Dicey derived support from this notion from old common law cases such as Entick v Carrington (1765) 19 St Tr 1030. It can be argued that this belief is mistaken in the modern day since racial, religious and other discrimination has often become institutionalised by general rules. One example of this can be found in an aspect of the War Crimes Act 1991 section 1 which provides for retrospective criminal legislation to be applied against alleged Nazi war criminals, irrespective of nationality, even if at the time of the offence they were not British citizens. Such a provision clearly militates against the notion that the rule of law equates necessarily to equal treatment. It could, however, be argued that legislation such as the War Crimes Act is unusual and a response to a specific set of circumstances which have arisen given the differences between the C21 and the C19.

Dicey’s theory might be able to derive support from a recent House of Lords decision on whether or not a government minister acting in his official capacity could be guilty of contempt of court: M v Home Office [1992] 4 All ER 97. This case concerned a citizen of Zaire who sought political asylum in the UK. Despite the request of the trial judge that M remain in the UK pending an application for judicial review M was deported back to Zaire via Paris. Lord Woolf gave the principal judgment in M and he observed that it was the court’s purpose when making findings of contempt to ensure that “the orders of the court are obeyed”. Lord Woolf was clear that the object of the exercise was “not so much to punish an individual as to vindicate the rule of law by a finding of contempt.” This decision of the House of Lords – the first occasion on which a government minister had been found guilty of contempt of court – does suggest that the executive is not above the law.

However, it must be noted that decision such as M are rare. Furthermore, there are those within the UK who might be seen as above the law. There are, for instance, foreign diplomats who enjoy immunity from the operation of the criminal law, judges who cannot be sued for the way in which they have dealt with a case, and Members of Parliament who, by dint of Parliamentary privilege, cannot be sued in defamation for comments made in Parliament, as has been seen in recent cases such as Hamilton v Al Fayed [1999] 3 All ER 317 concerning allegations of bribery made in relation to comments made by Neil Hamilton in the House of Commons. In addition to these exceptions, the intervention made by the Queen in the case of Paul Burrell suggests that the monarch retains a superior position with regards to the law.

These exceptions are limited, but they do militate against Dicey’s notion of equality before the law. However, Dicey did himself note that there were some individuals who were exempt from the standard laws of the nation, such as soldiers and clergymen of the Established Church. Indeed, Dicey’s reasoning only acknowledges those who are subject to additional legal obligations, i.e. where no immunity has been made, however, it could be suggested that his theory implicitly concedes that there are those who will remain beyond the rule of law and that this group has simply enlarged in line with the growth of the state.

The ratio which emerges from Entick v Carrington (see above) is that the rights of the individual can only be justified on the basis of some lawful authority. This is sometimes referred to as the “principle of legality” . However, there are limits to the protection which the rule of law affords in this context. Dicey’s theory simply requires the existence of a legal authority, but it doesn’t impose any requirements on the quality of that authority. When faced with statutory power all that the courts can do is interpret that power in a way which interferes as little as possible with the rights of individuals. However, statutory powers often don’t confer much flexibility and, as IRC v Rossminster Ltd (1980) shows, when public bodies follow the exact wording of statutes, the courts cannot easily intervene. That said, it could also be shown that judicial maintenance of the rule of law can extend to ensuring that statutory powers are properly exercised where there exists such flexibility, as in the field of criminal law, where the courts may take the view that the police have abused their power. Such was the basis of the House of Lords’ decision in R v Horseferry Road Magistrates’ Court, ex p Bennett [1994] AC 42 where it was held that the primacy of the rule of law must be upheld.

Cases such as this show that Dicey’s arguments concerning the rule of law must be understood within the context of Parliamentary sovereignty and, in particular, it is a concept that can never be understood in a vacuum.

In the context of the C21 it must further be suggested that the Human Rights Act 1998 and the European Convention on Human Rights (ECHR) have created parallel systems of law which confuse the notion of a single “rule of law”. These have imposed on the judiciary a new set of conditions against which they must make their judgments, in particular s 6(1) HRA which imposes on public authorities the requirement to comply with the Convention. Furthermore, it can be argued that Article 6 ECHR, which protects the right to a fair trial, has realigned the balance of judgment in favour of individuals rather than the executive or government. In particular, it could be noted that Entick v Carrington guaranteed, according to Dicey at least, an individual’s right to privacy. The current interplay between Articles 8 and 10 ECHR and the uncertainty concerning the right to privacy show that Dicey’s arguments about the rights of the individual when faced with arbitrary power are as relevant within the constitution now as in previous centuries.

It has been suggested that Dicey’s theory of the rule of law is of limited use since it originated in the political tradition of C19 laissez-faire theory, with deep-rooted hostility to governmental power and a desire to minimise the encroachment of the state into individual rights. This has been called the “red light” theory of the state . It is trite that Dicey made his comments while comparing the UK with the system of droit administratif in France at a time when the UK had no system of administrative law per se. However, at its most basic, the Diceyan view sanctions judicial intervention when, and only, when public bodies exceed their legal powers.

It has been seen that the development of a body of administrative law in later centuries has not necessarily occurred coincidental with an erosion of liberty or justice. Since Dicey wrote his theories the state, its duties and powers have increased considerably, however, it is possible to argue that Dicey’s theories do reflect the modern constitution, i.e. where judicial intervention is used as a safety net, bridging the democratic deficit where parliamentary control is ineffective. In this way, Dicey’s theory would be consistent with the new breed of jurisprudence borne of the HRA and ECHR. It is most probably for this reason that Lord Bingham has remarked of Dicey that “his point on the British system…remains sound.”

Bibliography

• • Leyland, P. and Woods, T. (2002) Administrative Law, 4th ed (Oxford),
  • Parpworth, N. (2004) Constitutional and Administrative Law, 3rd ed (LexisNexis Butterworths: London)
  • Lord Bingham, Dicey Revisited, Public Law 2002, SPR, 39-57