“The concept of the Rule of Law as defined by Dicey still remains valid: it provides a measure against which we can judge the attitudes and actions of Parliament, Government and the courts.”
Explain what is meant by the concept of the rule of law. To what extent is the statement above true?
The rule of law is often expounded as a pillar of the English Constitution; indeed, it was described by Lord Bingham as “the second great rock on which ... [Dicey's] constitutional edifice was founded” . It was referred to in statute for the first time, in the Constitutional Reform Act 2005 , as an “existing constitutional principle.”
According to A.V. Dicey, there are 2 features since the Norman Conquest which have characterized the political institutions of England: (1) the “undisputed supremacy” of central government—the authority of the Crown (the King being the source of the law), which supremacy has now passed to ‘Queen in Parliament'; and (2) the rule of law.
[...] Bibliography 1. Constitutional & Administrative Law, Neil Parpworth, 5th ed Introduction to the Study of the Law of the Constitution, A.V. Dicey, 10th ed reprint 3. Halsbury's Laws of England—Crown and Royal Family (Vol. 12(1) (reissue)); Constitutional Law and Human Rights (vol. (reissue)) [1]Cited in Constitutional & Administrative Law, Neil Parpworth, 5th ed p 2005 c s.1(a) Adapted from Introduction to the Study of the Law of the Constitution, A.V. Dicey, 10th ed reprint, p Bracton De Legibus et Consuetudinibus [...]
[...] Under the doctrine of Parliamentary supremacy, Parliament can legislate on any subject matter, this renders the rule of law as of no effect at all—if Parliament wishes to legislate contrary to the rule of law it can, and has done, in the War Damage Act 1965, and the courts cannot question this as they defer to, and accept, this supremacy. The Government is supposed to be accountable to Parliament, but in reality, due to our electoral system, the Government controls the House of Commons and, as they need a majority to remain in power, their legislation, which can under the auspices of Parliamentary supremacy make any provision, will generally always pass. [...]
[...] One point which Dicey gave a lot of consideration to in his work was comparison of the rule of law with droit administratif, this is an area of French law whereby state officials are protected from the jurisdiction of ordinary tribunals and are dealt with in separate, administrative ones. This is in stark contrast to English law, argues Dicey, as Crown servants are accountable for unlawful acts and are dealt with in the ordinary courts, the same as any other person—the very essence of his second element of equality before the law. [...]
[...] The actions of Parliament and the Government were perfectly legal, Parliamentary supremacy provides that Parliament can legislate on any subject matter and that no court can question an Act of Parliament, but this completely flies in the face of the rule of law. In Liyanage v The Queen,[15] which also concerned retrospective legislation, it was held that Acts could not be challenged on the grounds that they were contrary to the fundamental principles of justice. This leads us to the principle of natural justice. [...]
[...] Another well established principle, this means that everyone, except The Queen, is subject to the same law. Central to this element is the principle of legality—government under law—that when the executive exercise a power or duty, direct legal authority must be shown. This principle was established in Entick v Carrington[8] when it was held that a general warrant will not suffice when interfering with the liberties of the subject and was unlawful as the power claimed by the Secretary of State to make the warrant was not supported by any legal authority. [...]
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