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Monday, 19 December 2011

Critically evaluate A.V. Dicey’s exposition of the “Rule of law” and its continuing relevance today.

In Introduction to the Study of the Law of the Constitution, Professor A.V. Dicey offered a neutral description of the rule of law. He argued that the rule of law has three aspects. Firstly, no one c...an be punished except for a distinct breach of law. Secondly, irrespective of rank, everyone is equal and subject to one law. Thirdly, courts are the better protectors of human rights and freedom. However, the principles are controversial and criticized by other jurists. On the other hand, in today’s world of increasing terrorism, due to national security and the evolution towards greater equality in the development of law, the Parliament may somehow contradict the orthodox theory by legislating and the courts may make decisions against the theory. By evaluating the doctrine of the rule of law and illustrating the challenges posed to the traditional theory, we will see how the theory is relevant today.

The first principle of the rule of law is no one can be punished except for a distinct breach of law. It was designed to protect the individual from any secret or arbitrary laws because secret or arbitrary laws are incapable of justification. The element also implied that no retrospective penal law can be legislated. If such law is imposed, the individual is placed in the position where his conduct was lawful at the time of his action but, subsequently, he is convicted as if his early conduct was unlawful. This is contrary to the first element – No man can be punished except for a distinct breach of law. Wright J in Re Athlumney stated

‘…unless that effect cannot be avoided without doing violence to the language of the enactment…it ought to be construed as prospective only.’
The courts employ the presumption of statutory interpretation against retrospectivity.


In Waddington v Miah (1974), the House of Lords denied retrospective effect in relation to criminal offences by interpreting the Immigration Act 1971 in a different manner with the Parliament. In Burmah Oil v Lord Advocate (1965), the House of Lords awarded compensation to the claimant for the destruction of oil installment during wartime. Meanwhile, the Parliament speedily enacted War Damage Act 1965 in order to nullifying the decision. This illustrated that the court cannot uphold the rule if Parliament expressly provided for retrospectivity.


However, the court may interpret for retrospectivity if the rule was anachronistic or absurd due to evolution towards greater equality. In the case of R v R (1991), the House of Lords argued that the rule against the liability of rape within marriage was anachronistic then convicted the defendant. The defendant appealed to the European Court of Human Right on the basis that it infringed Article 7 of the Convention, which makes retrospectivity unlawful. The Court of Human Right rejected his argument and ruled that sweeping off the immunity of husbands from the liability of rape is an evoluation towards great equality.


Notwithstanding, since 2001, plenty of Acts which contradict the first element of rule of law passed in order to protect the nation from terrorism. For example, the Anti-Terrorism, Crime and Security Act 2001 provides for internment without charge or trial for suspected of links with terrorism. The Terrorism Act 2006 which provided 28 days pre-trial detention. These Acts contradict to the rule that no one can be punished except for a distinct breach of law.


The second principle emphasizes everyone, including the government, irrespective of rank, shall be subject to the same law and courts. This element is interpreted to be misguided and facing bundle of criticisms. In fact, by reason of maintaining the law and order in the society, there are actually exceptions such as the Crown, police, Members of Parliament. The Crown may exercise prerogative powers which may defeat the rights of individuals. The police have powers over and above the citizen. Members of Parliament have immunity from the law of defamation. One of the jurists who criticized on Dicey’s second element of the rule of law is Sir Ivor Jennings. He points out that no citizens are absolutely equal:
“…pawnbrokers, money lenders, landlords…and indeed most other classes have special rights and duties.’
He also ruled out that Dicey’s interpretation of the principle is too narrow. A better interpretation should be – everyone is equal and subject to the same law, the executive and legislative power may have immunities, but in the sense they should be accountable for their actions


However, recently, there are several controversial Acts of Parliament which seem to have contradicted the second principle of the rule of law enacted during the decade. As mentioned, the Anti-Terrorism, Crime and Security Act 2001 provides for internment without charge or trial for non-British terrorist suspected of links with international terrorism. This is a specified law against the non-British people which contradict the second principle of the rule of law. We will see how the courts protect the human right from unjust act in the evaluation of the third principle.


Dicey believes that the courts are the better protectors of human right. The rights to liberty and to assembly are determined by the courts in the course of ordinary legal proceedings. In spite of enjoying rights to liberty such as freedom of speech, citizens must understand all the legal restraints on freedom of expression. Like the law relating to sedition, to race hatred speech, to support for terrorist organizations, the law of defamation and so on, citizens may be charged of breaching the statutes from the Acts of Parliament. However, since 1965 British citizens have had the right to apply for remedies under the European Convention on Human Rights if they think that the decisions made under domestic law are unjustified. Nevertheless, most of the Convention rights are enforceable before the domestic courts. In order to see whether the courts are really the best protectors of rights from, we will examine the following cases and judicial reviews.


In an early case of Entick v Carrington (1765), the Court of common Pleas held that there was no lawful authority for the warrant and the officers entering the defendant’s property were trespassing. The decision successfully protected the defendant’s right to privacy. However, in the Rossminster case (1980), the House of Lords rejected Lord Denning’s view in the Court of Appeal that a warrant must particularize the specific offence which is charged as being fraud on the revenue because he believed that the requirements of the statute were met.


In Malone v United Kingdom (1984), the Court of Human Rights ruled that the United Kingdom had violated Article 8 of the Convention (The right to privacy) in reversing the earlier decision in Malone v Metropolitan Police Commissioner which ruled that no trespass had committed by the police even they had intercepted the defendant’s telephone calls. In response the Parliament passed the Interception of Communications Act 1985 which authorizes the interception on a statutory basis. This indicated that the Court of Human Rights was capable to protect rights and freedom.


The following case is a judicial review relating to the Anti-terrorism Crime and Security Act 2001 which was mentioned. In A v Secretary of State for the Home Department (2004), the court concerned the power conferred on the Home Secretary to detain foreign terrorist suspects that the suspects could not be put on trial because much of the evidence against them was acquired. Moreover, they could not be deported because deportation would violate Britain’s international obligation. The House of Lords ruled that the power violated Article 5 (The Right to Liberty) of the European Convention on Human Rights. The court successfully protected human rights and freedom from an unfair Act. Therefore, under the Human Rights Act 1998, the courts are not hesitated to protect the human rights whereas the Parliament is eager to protect the commonweal.


To a large extent, Dicey’s principles of the rule of law are accurate even though they are not exhaustive and uncriticised. The rule of law is very important for people to understand and conform to. However, although the courts are eager to protect the rule of law, the theory is theoretical and is difficult to achieve in practice. Especially the role of Parliament, due to National Security and commonweal, enactments which contradict the rule of law are legislating nowadays.

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