Question: Discuss whether the doctrine of the rule of law has a sufficiently certain
meaning to be a useful guiding principle of United Kingdom constitutional law.
(Chapter 4)
The constitution of the United Kingdom is unique because it is largely unwritten and is made
up of legal sources as well as non-legal sources. The rule of law does not have one clear
fixed meaning but instead has been subjected to several different interpretations. In the first
sense, it is a term of political philosophy other than institutional morality. It conveys the idea
that government is not under men but under laws. It also eschews the instrumentalist
conception of law. In the second sense however, its focus is to constrain the abuse of official
power. Other than protecting citizen’s rights, it also guarantees access to justice. According
to AV Dicey, Parliamentary sovereignty and the rule of law are the two pillars of the UK’s
constitution. The focus of this essay is on whether the doctrine of the rule of law has a
sufficiently certain meaning to be a useful guiding principle of the UK constitutional law. The
essence of the rule of law is that of the supremacy of law over man. In western societies, the
rule of law is accepted as the obligation by all citizens and public bodies irrespective of rank
and power, to obey and be accountable in law. In the words of Raz (1979), the rule of law
has ‘enduring importance as a central artifact in our legal and political culture.’ In the
absence of a written codified constitution, the rule of law is particularly important.
There are three different versions of the rule of law applied in English Law. First, the ‘core’
rule of law or the rule of law as a legal principle. Governed by law in the form of general
rules. It implies ‘equality’ in the sense that everyone who falls within a given law must be
treated the same under it. Secondly, the ‘amplified’ rule of law or the rule of law as a
substantive concept. These constitute what is primarily a procedural or formal version of the
rule of law. They concern the idea that, laws should encapsulate and contain certain
fundamental values. Finally, the ‘extended’ (liberal) rule of law or “The Principle of Legality”
claims that law provides the overarching values of the community against which acts of
government must be evaluated. It restrains ‘bad laws’ by interpreting legislation and
evaluating executive action in the light of common law values.
According to Dicey, the rule of law is interpreted into three distinct conceptions, namely that
no man is punishable or can be lawfully made to suffer in body or goods except for a distinct
breach of law established in the ordinary legal manner before the ordinary courts of the land;
no man is above the law – whatever be his rank or condition, is subject to the ordinary law of
the realm and amenable to the jurisdiction of the ordinary tribunals; and that the common
law affords greater protection to the citizens than a written constitution.
The first postulate means the absolute supremacy or predominance of regular law as
opposed to the influence of arbitrary power and excludes the existence of arbitrariness, of
prerogative, or even of wide discretionary authority on the part of the government. Dicey
stated, ‘a man may with us be punished for a breach of law, but he can be punished for
nothing else’. This limits the discretionary prerogative powers of government and denies
governments any right to make arbitrary laws. This is because broad discretionary powers of
the executive are difficult to challenge before the courts. Under the first principle, laws
cannot be passed retrospectively because retrospective liability creates obvious injustice
and moreover, Article 7 of the European Convention on Human Rights (ECHR) prohibits
the imposition of retrospective criminal liability into English law by the Human Rights Act
1998 (HRA). In Waddington v Miah, where the House of Lords using, as an aid of
construction Article 7 to interpret the Immigration Act 1971 to only have prospective effect.
The same has been pronounced in Phillips v Eyre (1870). Nevertheless, the War Damage
Act 1965 was passed to retrospectively nullify the decision in Burmah Oil v Lord
, Advocate, to disallow compensation to be awarded for destruction of oil installations in
wartime.
The second postulate by Dicey reflects the famous quotation by Thomas Fuller, “be you ever
so high, the law is above you.” Government and public authorities are subject to law in the
sense of being accountable for their actions. The Bill of Rights 1689 affirmed that the
monarchy was subject to law. The cases illustrate how the courts played a pivotal role in
ensuring equality in the law. The case of Entick v Carrington established the right of
individuals to be free of unlawful interference in their private affairs. The Secretary of State
could not claim search powers unless granted by the law. Furthermore, the Home Secretary
was held liable for contempt of court in M v Home Office (1994) for failing to abide by a
High Court order which ordered the return to UK of a Zairian teacher claiming refugee
status. The mechanism of judicial review of administrative action allows the court to check
the powers of the executive. Judicial review represents bedrock for the application of the rule
of law keeping those with law-making and discretionary powers within the law. In R v
Secretary of State for the Home Department ex parte Fire Brigades’ Union (1995), it
was held that the executive may not wield powers of royal prerogative to defeat a right
granted under an Act of Parliament in attempting to amend the Criminal Injuries
Compensation Scheme. A similar judgement in Laker Airways v Department of Trade
(1977), ruled that the use of the prerogative powers if treaty-making could not be used to
defeat a right granted under an Act of Parliament.
The third and final postulate is that courts are the guardians of citizens’ rights. This limb
reveals Dicey’s strong preference for common law protection of human rights over and
above a specifically formulated code of rights. The courts come between the Government
and the citizens in granting a remedy to individuals whose rights have been infringed as well
as to prevent any abuse of power by the executive. However, it must be noted that the role
of the courts does not protect individual rights from legislative invasion because
Parliamentary sovereignty allows parliament to put forward legislation to nullify court
decisions against executives. But then again, the significance of the courts is reflected in R
v Jackson (2005) where Lord Hope and Lord Steyn said that if Parliament used parliament
sovereignty to abuse power, the courts would step in to check the powers of Parliament. The
strong protection of human rights by common law can also be seen through the common law
writ of habeas corpus which gave protection to individual liberty more effectively than statute.
The HRA 1998, equips judges with greater powers to scrutinize the executive’s actions as
seen in cases such as A v Home Secretary (2004), where the Executive was held to be in
breach of convention rights. According to Lord Denning, who mentioned that in a conflict
between the freedom of the individual and any other rights or interests, the freedom of the
humblest citizen shall prevail? Courts have shown to strain the meaning of legislation to
ensure compatibility with the HRA as illustrated in R v A (2001).
Besides Dicey’s view on the rule of Law, Lord Bingham, in his House of Lords Speech on 16
November 2006, laid down eight principles which he believes forms the rule of law. First, he
states that the law must be accessible and so far, as possible intelligible, clear and
predictable. Everyone is to be given a clear passage into finding the meaning of law. All must
without undue difficulty be able to give a passage to the law without difficulty. In 2004, some
3500 pages of Primary legislation was created. In 2003, nearly 9000 pages of statutory
instruments –the sheer volume of such would pose great difficulty. The problem is also with
the courts when there is diversity of opinion as to subject matter there is to be a clear ratio
and obiter. Successive adventurism of Judiciary would lead to uncertainty of law. Second, he
states that the question of legal right and liability should be resolved by application of the law
and not the exercise discretion. For example, in Immigration matters, judges would seek for
