“We are entitled to be proud that even in that extreme national emergency [the Second World War] there was one voice – eloquent and courageous – which asserted older, nobler, more enduring values: the right of the individual against the state duty to govern in accordance of law; the role of the courts as guarantor of legality and individual right, the priceless gift, subject only to constraints by law established, of individual freedom. ”(Lord Bingham of Cornhill, The case of Liversidge v Anderson: the Rule of Law Amid the Clash of Arms,2009)
From my view, Lord Bingham expressed the importance of rule of law through the comment he gave in the case Liversidge v Anderson(1942). As he claimed in the rule of law that the right of the individual is getting protected against the state, and there is a duty for the state to conduct their power based on the law without abuses it. Courts are playing an important role to make sure the justice and individual right is achieved. Rule of law is a fundamental principle of the United Kingdom uncodified or unwritten constitution. The principle is meant to control the exercise of public power within its limits.
Besides that, Lord Steyn commented “…In its second sense the rule of law is a general principle of constitutional law. Its central focus is to constrain the abuse of official power. It protects a citizen’s right to legal certainty in respect of interference with his liberties. It guarantees access to justice. It ensures procedural fairness over much of the range of administrative decision-making by officials. ” Lord Steyn has given his opinion on the rule of law that the rationale behind it is to safeguard the citizen’s right against the abuse of power and ensure justice is achieved.
Rule of law is term of political philosophy theory which lays down fundamental requirement of law. In 1959, Professor Joseph Raz notes that, the International Congress of Jurist came up with a definition ‘a complete social philosophy. ’ giving a concept of a full panoply of civil, political,economic and social rights. Lord Steryn had also commented “it conveys the idea of government not under men but under laws…It addresses the moral dimension of public power. ”
Lord Bingham in the statement above has made his stand that ‘…the right of the individual against the state; duty to govern in accordance with law. It is being illustrated that there is a need to look into the importance of individual’s right against the public power and the state should act accordance the law which make no abuses. In Introduction to the Study of the Law of the Constitution, AV Dicey has made his influential statement of what he thought to be the rule of law . The first postulate is no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of the law established in the ordinary legal manner before the ordinary courts of the land.
It is clear that the postulate explained that no one shall be punished except there is a breach of law. In short, Dicey argued that a punishment will only be imposed on an individual if he violated the law as established in ordinary legal proceedings before a court. On the other hand, Dicey believed that no one shall be subjected to broad discretionary of power as there will be a big chance for arbitrariness. In this sense, government will need to act within its legal power without abusing the power as the rule protects the citizens.
The classic case for this is Entick v Carrington(1765) where it shows the limitation of the state power. The court ruled that a general warrant and insurance of Entick’s house was contrary to the law and therefore the warrant claimed to be void. However, there is a contrast in a later case which is Liversidge v Anderson(1942), Home Secretary was empowered under Regulation 18B of the Defence(General) Regulation 1939 to intern people if he has ‘reasonable cause to believe’ such a people has hostile association.
House of Lords held that the court could not review the Home Secretary’s belief that detention without warrant under the order of Home Secretary is justified, Throughout the conflicting between the two cases , judiciary is claimed to defined the relationship between the state and the individual which it got reliance on as protection . This element is designed to prevent making secret or arbitrary laws, retrospective penal laws and to limit the discretionary powers of government in order to protect the individual. Therefore, laws needed to be open and accessible, clear and certain to comply with the requirement stated above.
There are reasons that the requirements above are being included. Firstly, the wide discretionary of power in the form of granting power to the government to act as they think is fits will leads to an absurdity to the people because it will be impossible for an individual to know what rights he or she has. Doctor Mark Cooray views on the retrospective legislative stated “Law should apply prospectively and not retrospectively. A person should never made to be suffer in law(criminal or civil) for an act which was not unlawful when he committed it.
This can be seen in the case Burmah Oil v Lord Advocate(1965)where House of Lords had awarded compensation for the destruction of oil installation. Then, the Parliaments passed down the War Damage Act 1965 to prevent others for obtaining the compensation. However, there are some criticisms for the first postulate applied in the law today. The first element of the first postulate has stated that an individual is only be punished for a breach of law. Under the Bail Act 1976, there is a detention for unconvicted defendant in custody while waiting for his criminal trial.
Eventually this has shown the contrast of the rule of law with the statute as if the defendant being found not guilty had still suffered in body while remanded in the custody. Moreover, Section 1 of the Police and Criminal Evidence Act 1984 has empowered a police officer to stop and search a person when he has a reasonable ground for suspecting. The officer may detain a person for the purpose of the search. It was told that the search or detention is considered as lawful even if no article is found. An obvious contrast can be found here as the person who got stop by the police officer will suffer in body in the absence of violation of law.
There is a significant criticism in the second element of first postulate as whether there is a high discretionary power is being abuse. Under the sovereignty of Parliament, Parliaments can simply pass down law and delegated legislation. There is an example of Parliaments proposing to conder wide discretionary powers on the state was the Terrorism Bill of 2005 . The Act permitted the police to detain terrorist suspects for up to 90 days without charge. It was argued that the time frame is used to acquire and analyse the evidence against those who got detained.
There are numbers of commentators argued that it was opposed to the rule of law that 90 days is excessive. This has shown the excessive use of the powers on the police. Furthermore, Dicey had highlighted in his second postulate that ‘equality before the law’ which means no man is above the law. Dicey argued that all individuals, both private citizens and state officials are subject to the ordinary law. Dicey has also often been interpreted as requiring that there be actual equality in terms of legal rights, powers and capacities. Be you ever so high, the law is above you. ”
It was said by Thomas Fuller in 300 years ago that everyone despite of the government and its officials, or the citizens, must all act under the law that it is sovereignty. In M v Home Office(1994) , it was held that executive is not above the law therefore injunction was not given to the claimant. Then, Dicey contrasted the United Kingdom(UK) system with France administrative system, whereby disputes with government or state will be done in a separate courts or tribunals.
The process of administrative law from the France is distinct with original court system. Lord Bingham’s said ‘… the role of the courts as guarantor of legality and individual right, the priceless gift… ’ which have proved that he is agree with the facts judiciary assured the legality and human rights being prevail. UK has developed a separate form of administrative law which is some ways similar to the French system regardless Dicey disapproved it. Judicial review is important to make sure the delegated powers by Parliaments are function within its limit power.
It is the tasks for the courts to determine whether the delegated authority is acted intra vires or ultra vires. Judicial review represents that by which the sovereignty of Parliaments will upheld and promotes the rule of law. It was rationalized by the House of Lords into three principal categories: irrationality, illegality and procedural impropriety under Council of Civil Service Unions v Minister for the Civil Service(1985). It is also happened to be in relation to Human Rights Act 1998 which enables the European Convention on Human Rights to enforce in the courts.
However, judicial review will only be exercised over matters that competent to determine which applying special public law principles. Nevertheless, the judicial review kept those discretionary power and law making within the law. Another aspect is judiciary is meant to be strictly impartial and non-political. Therefore, judiciary must be independent in order to keep the executive within the scope. Judiciary need to be seen as a separate body as it protects the individual’s right upon the state. However, there is also a need to check on the judiciary when it is still independent.
There are comments on the judiciary that they simply apply the law and not concern about it as it has contrary with the Parliament sovereignty. The Constitutional Reform Act 2005has make a good separation between the judiciary and the executive power. It is a meant to reform some historical overlapping in the Human Rights Act 1998. The main point for reform is that the government and Parliaments will not able to interfere the court decision anymore which have formed the judiciary independent. There is question that arises whether there is abuse of power to be without the judiciary.
There are some legislation designed to counter terrorism was passed down to increased the power of the state to interfere with the right of individual. The state was said to have an excessive power. For example, in the Terrorism Act 2000has placed counter-terrorist powers on a permanent basis. The Anti-terrorism, Crime and Security Act 2001has increased the police stop and search powers and detention of individuals suspected of international terrorism. Then, The Counter-Terrorism Act 2008 provided for the post-charge of questioning of terrorist suspects.
The Bill had given powers to allow the detention and questioning of suspects for up to 42 days without charge, which later get abandoned after defeat in the House of Lords. The illustration above has shows that the excessive use of power, but also can be said to be an exception of the rule of law. However, it is obvious that without the interference of judiciary to balance out the powers of state, it may turn out to be more serious in that point. Although the principle from Dicey is persuading, there are still some exceptions to the principle of equality.
It includes Article 9 of the Bill of Rights 1689 states that the freedom of speech, debates or proceedings in Parliament ought not to be questioned in a court. The practice of the article is to make sure they can exercise their function without the worry of litigation. Then, The courts, judges of the superior courts are not liable for anything while carrying their judicial decision as it is known to be a protection of judicial independence so that the judges can apply the law more independently , without the fear of litigation.
The case Malone v Metropolitan Police Commissioner (1979) had also shown the unequal between the police and the private individual. The ‘unequal’ entities in the cases gave rise to constitutional difficulties. As in this unfair situation, the action of police should be subject to more control and regulation in order to protect the private individual. Third aspect from Dicey was the principles of the constitution are the result of the ordinary law of the land. The third postulate is concerns individual rights.
Dicey was making the point that British are running a court- based constitution which is a common law constitution. The individual rights will be direct effect by the decision made by the judges in courts. The courts protect the citizens by their decision through the common law. In this way, Dicey has contrasted the English constitution with the bill of right which the rights and freedoms of the individual stated from a written codified constitutional document. Dicey beliefs common law affords to give a better protection compared to written constitution.
This can be shown in the case Entick v Carrington(1765) that Entick did not need to rely on a constitutional rights set out in bill of rights but can rely on the common law in the ordinary courts. It has to noted that rule of law does not refer to the superior law but only refers to the law that enacted by the Parliament and applied in the courts by practicing common law. Rule of law main criticism is that it fails to deal with the sovereignty of Parliament. It is because even if there is the conflict between the Parliament legislation and the rule of law, the legislation will still be the law as statute is supreme.
Statute has also grant the government to prevent some legal action under the Crown Proceeding Act 1947 . There is also some Act of Parliaments that gave wide discretionary powers to the government under Deregulation and Contracting Out Act 1994 which different from what Dicey said that the Parliament would protects the people’s right and restrain the government. Dicey had also upheld that government must give defined legal powers to authorise their actions. It will be hard to identify the legal powers that the government having although prerogative still exists.
In the case R v Home Secretary ex parte Northumbria Police Authority (1988), in order to keep peace, the court had accepted the existence of prerogative power which was not approved in the past. Another part that needed to be note is the element of Dicey’s conception of rule of law is subject to the Human Rights Act 1998. Under Section 3 of the Act all courts and tribunals have to interpret legislation to the extent of ‘ so far as possible to do so’ while section 6 of the Act has make them to be consistent with the European Convention when interpreting the law.
The Human Rights Act shows a significant change in ‘right protection’ where lawful justification is needed for the state to interfere the rights of an individual and uphold the protection from the act. In conclusion, I agree that Lord Bingham’s view of the rule of law is based on the Dicey’s concept, the postulates from Dicey is said to be adequately satisfied and sufficient as it stated that no person or institution is above the law, and the state itself is subject to legal regulation.
The rule of law constrains the abuse of official power and ensures the citizen’s right is protected. However, there are still criticisms on Dicey concept of rule of law as there are some exceptions and conflicts along the postulates. Hence, the concept of rule of law by Dicey is still considered good and adequate . It has also proved that rule of law is a core principle that needed in a democracy.
January 9, 2018
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