Page |1 Rule of Law Diceys Conception A.V.

Dicey had provided his version of the rule of law (RoL) in 1885. He provided three main rules which, in his view, should be part of the British constitution. It can be suggested that he had fathered the RoL principle as he was one of the first academics to provide a definition of it. His version of RoL provided a clear view of how the law should be enforced by the state, though it should be noted that many academics had criticised his approach. Many academics would contest that Diceys version of the RoL was quite retrospective in a sense that it would not comply with the current situation of the English legal system. For example, Diceys version of the rule of law was inconsistent with or contradictory to the existence of discretionary powers.1 Discretionary powers are used by the courts in order to make decisions upon cases. Judges may use their discretion to figure out what factors may be taken into account when deciding a case. It can be suggested that the rule of law is not comparable with discretionary powers. For example the rule of law requires that everyone is the same in the eyes of law and as such it requires everyone be judged equally. However one would argue that there have been many a ties when instead of judges following the law and its guidelines accordingly they have exercised their discretion in order to pursue a decision in a case. There are always aggravating and mitigating circumstances which can be factored in as well when judges must make decisions. The rule of law, in relation to common law, is also retrospective in a manner that it does not follow parliamentary immunity or criminal acts conducted by under aged people. The law provides that a criminal offence may not be committed by a person aged ten or under.2 This shows clearly that the rule of law had not taken into account people who are incapable of committing crimes (doli incapax rule). Dicey was mainly concerned with the abuse of discretionary powers by executives3 of the state where he illustrated that they could torment citizens of the state. This shows an infringement of Diceys third rule.
1 2

N. Parpworth, Constitutional & Administrative Law, 2010, 6 edn., Oxford University Press, p.46 S.16(1), Children and Young Persons Act, 1963 3 Public authorities such a police officers are referred to as executives.

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Page |2 Dicey also avoided the idea of parliamentary immunity, or any sort of immunity which creates exceptions for those who are to be criminalised. There are people with special privileges to get away with certain acts for example Members of Parliament who cannot be sued for defamation within the precincts of the Palace of Westminster.4 The above examples have clearly suggested that Diceys version of the rule of law is retrospective and in a sense does not comply with laws in place today. However it was stated by T.R.S. Allan that Common law judgments are inherently retrospective in the (limited) sense that they provide fresh interpretation of familiar principles or previous decisions as a basis for resolving existing disputes.5 By looking at this statement it may be suggested that even if the rule of law provides for a more retrospective law it can still be used as a method of appreciating its use for the development of the law. Lord Binghams Principles Lord Bingham had provided new principles based on Diceys work which can be used to show that his version of RoL is prospective or progressive and also takes a more substantive approach. Lord Binghams principles had integrated human rights laws in order to form a better compliance between the RoL and the English legal system. This is made clear where Bingham suggests that, The law must afford adequate protection of fundamental human rights. This would not be universally accepted as embraced within the rule of law. Dicey, it has been argued, gave no such substantive content to his rule of law concept .6 His concept of the RoL concentrates on the individual instead of the state which in many ways is commendable. One believes that the RoL provided by Bingham is quite beneficial towards the citizens of the state. For example, the people of Britain will not be abused by the power of the Government.
4 5

N. Parpworth, Constitutional & Administrative Law, 2010, 6th edn., Oxford University Press, p.47 T.R.S. Allan, The rule of law as the rule of reason: consent and constitutionalism *1999+ 115 (Apr) Law Quarterly Review 221-244 at p.241 6 T. Bingham, Rule of law *2007+ 66(1) Cambridge Law Journal 67-85 at p.75

Page |3 In many ways Binghams principles suggests that the law is not to be tormented by the power of politics. This way the courts have the responsibility of making decisions based on the laws put in place and not by the use of discretionary powers used by the Government. However it is argued that, Law is politics and cannot but be politics. Judges, though, are reluctant to admit this because it subverts the rule of law ideal that judges should be impartial and objective, deciding according to the law and nothing but the law.7 The above statement clearly suggesting that the Government intervenes within the courts allowing them to pursue their own means and goals. This does not allow the courts to adhere to the RoL and as such does not adhere to Binghams concept. It can be seen from the case of A v Secretary of State for the Home Department (2005)8 that the Government tries to use its powers in order to attain their goals. In this case the Government were trying to detain suspected terrorists under the Antiterrorism, Crime and Security Act (2001) because Parliament had thought they were a threat to the nation.9 The appellants used human rights laws in order to defend themselves. The Parliament had then pursued to discard the human rights laws in order to meet their gains. However the court of appeal had rejected this and had provided that the specified statute was incompatible with articles five and fourteen of the European Convention of Human Rights (ECHR). When relating Binghams RoL to this case, one believes that the courts did what was needed in order to comply with his principles. This is because Bingham had integrated human rights laws and as such the judges within the case had also integrated it within their decision. Parliament, at the time, was unable to discard the human rights laws. When relating Diceys conception of the RoL it can be suggested that the courts would fail the appellants. The courts may not be able to provide an interpretation of the law in regards to human rights because Dicey had not completely integrated them within his version. Parliament would then have discarded the ECHR and would get away with unlawfully detaining the appellants.

7 8

D. Meyerson , Understanding Jurisprudence, 2009, 1st edn., Routledge Cavendish, p.96 A and Others v Secretary of State for the Home Department [2005] 2 AC 68 9 S.23, Anti-terrorism, Crime and Security Act, 2001

Page |4 It was stated by Lord Hoffmann that, Such a power in any form is not compatible with our constitution. The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. 10 In conclusion, one believes that Diceys work was a good start to the development of the law. It had provided a great work up to what many could say is a democratic nation. However, by looking at Binghams conception it can be suggested that his principles are required in todays world where we have such a thing as terrorism. His principles provide a way to integrate human rights laws which can be used as a check and balance on Parliament today so that they may not abuse their powers and so that citizens of Britain are protected. It was stated by Edwin Cameron that South Africa's experience of democratic constitutionalism and the rule of law, and of rights-talk, over the last 18 years since the end of apartheid, powerfully demonstrates what can be achieved with rights .11 Using the above comment one believes that because of rights and the RoL the English legal system has come a long way. The development of the RoL can be used to suggest that the English legal system has also developed however it has room for improvement. Binghams RoL may not be the conception that many would agree with however it plays its part in the British constitution for the betterment of it. At the same time many more academics may pursue a new conception which would then be used to compliment a new century with new regulations thus always allowing for the development of the English legal system.

10 11

Lord Hoffmann in A and Others v Secretary of State for the Home Department [2005] 2 AC 68 at p.132 E. Cameron, What you can do with rights *2012+ 2 European Human Rights Law Review 147-159 at p.149

Page |5 Bibliography Books Meyerson, D., Understanding Jurisprudence, 2009, 1st edn., Routledge Cavendish Parpworth, N., Constitutional & Administrative Law, 2010, 6th edn., Oxford University Press Journals Allan, T.R.S., The rule of law as the rule of reason: consent and constitutionalism [1999] 115 (Apr) Law Quarterly Review 221-244 Bingham, T., Rule of law [2007] 66(1) Cambridge Law Journal 67-85 Cameron, E., What you can do with rights [2012] 2 European Human Rights Law Review 147-159 Internet http://news.bbc.co.uk/1/hi/uk/6974587.stm (accessed on 04.12.12)