The concept of rule of law has been around for a long time.

However, over the years,

changes has been brought. Discuss. (70% - Dicey & Bingham, 30% - the rest)

Intro
Definition: A.V. Dicey refers to the rule of law as twin pillars of the British constitution. The rule
of law and parliamentary supremacy is known as the foundation of the British constitution. This
area concerns legal jurists/philosophers. It pertains to the rationale or to the reason behind the
law. There are several legal philosophers such as Karl Marx, Thomas Fuller, John Austin and
Lord Bingham. They all have a different perception of the law. A.V. Dicey has his three
postulates on the rule of law. The issue here is whether all these theories are still relevant.

Paragraph 1 - First Postulate

No man can be punished unless there is a clear and distinct breach of law. This is also to
prevent retrospective legislation (noelle poenne sinne legge). Dicey argues there should be no
retrospective legislation. However, in actual fact there are retrospective legislations.
Burmah Oil v Lord Advocate 1965 (HOL)
Parliament passed the War Damages Act 1965. This was retrospective and had changed the
decision of the courts. While Dicey argues that there should be no retrospective legislation, this
case is deemed to be retrospective.
R v R 1991 (HOL)
Common law case; marital rape; deemed to be retrospective.
Holocaust
Hitler had passed arbitrary law to allow for the assassination of Jews. He even had his secret
police called the Gestapo. Their task was to locate Jewish persons and send them to detention
camps.
Nuremberg trials
After the war, Hitler's officials were held guilty under the War Crimes Act for genocide. It may
have been unfair as their actions was deemed legal at that time. To further add, many
committed these acts under duress. But international law held them liable anyway.
The Anti-Terrorism, Crime and Security Act (ATCSA) 2001
Allows the UK to detain a non-national indefinitely as long as they are suspected to be
terrorists. Here, there is no right to fair trial. This was criticised by the ECHR as it breached
Article 6 - the right to fair trial. Due to this, they passed the Terrorism Act 2005/6. Under this law,
the main principles are the same. The only difference is that detention without charge is allowed
from 28 to 90 days. Thereafter, one is detained until the end of trial. The government may raise
national security to succeed in the course of action

Paragraph 2 - Second Postulate

No man is above the law.
Entick v Carrington
The King's messengers were liable for trespass. The courts did not make that distinction as to
position in society. Everyone is at an equal footing.
M v Home Office
 Home Secretary breached a court order by deporting a Zairan national. This was said to be
contempt of court and the courts did not distinguish between a civilian and the executive.
Judicial Independence
Judicial immunity forms to be an exception as judges cannot be sued. This is for public policy
reasoning.
Diplomatic immunity allows diplomats to be immune from road traffic regulations. These
diplomats are given DC number plates and this grants them immunity.
Parliamentary privilege
Members of Parliament cannot be sued for actions in Parliament.
Droid administratif
In France, they had a special tribunal called the droid administratif. This tribunal is merely for
ministers and Dicey argues that this is unfair.

Paragraph 3 - Third Postulate

Courts or common law are better protectors of human rights. This may be questionable as in the
case of Burmah Oil v Lord Advocate 1965 (HOL), the Parliament is more authoritative than the
courts. At that time, statutes were not as powerful. There was no EU law or the HRA. This came
much later. Now, when EU law contradicts with common law, EU law prevails. This is of course,
subject to Brexit (explain). Example, the case of Factortame where English law contradicted
with EU law and EU law prevailed.

Paragraph 4 - Lord Bingham (put all 8 then explain the ones youre comfortable with)
Lord Bingham has 8 sub rules and this was proposed in November 2011 in the HOL.
1. The law must be clear and predictable.
2. Legal liability should be exercised without discretion.
3. Laws of the land should apply equally to all but there are certain exceptions.
4. Laws of the land should afford fundamental human rights.
5. There must be ways to resolve legal matters with no delay and minimal cost.
6. Ministers and public officials must exercise their power in good faith.
7. Adjudicative procedures of the state must be fair.
8. All states must comply with international law.

30% of your answer !!

Paragraph 5? - Discuss Thomas Fuller and his natural law theory.

Paragraph 6? - John Austin belongs to a school of thought who refers to themselves as

positivists.

Para 7 - Explain Karl Marx and his theory on capitalism.

Conclusion
Which theory did you use the most? Who makes more sense? Who was more relevant? Justify.