Aspect of the british constitution

The Rule Of Law

The Rule of Law is an aspect of the British Constitution that has been emphasised by A V Dicey and it, therefore, can be considered an important part of British Politics. Dicey (when referring to the English Constitution) summarised the rule of law in three main principles: firstly that no person could be punished or interfered with by the authorities unless the law authorised it, all governments actions must be authorised by the law. Secondly everyone is seen as ‘equal before the law'. Dicey believed that the government and the crown shouldn't have any special exemptions or protection from the law. Finally the Rule of Law protects an individual's rights. The courts protect them when making decisions in common law in a way the respects the individuals liberties.

The significant feature to the Rule of Law is that individual liberties depend on it. Its success depends on the sucess of trial by jury and the impartiality of judges. It also depends on Prerogative Orders. Prerogative orders are matters that are acted upon by the crown on issues that parliament have not legislated upon. Prerogative orders are made by the Privy Council. There are three Prerogative Orders:

  • Certiorari calls a case up from an inferior court to a superior one to ensure justice is done.

  • Prohibition prevents an inferior court from hearing a case it does not have the power to listen to.

  • Mandamus orders an inferior court to carry out its duties.

The first principle involves the absence of arbitrary power on the part of the government and prevents it from making retrospective penal law. This means that no man is punishable except for a distinct breach of the law of the land. In order to comply fully with this requirement, laws should be open and accessible, clear and certain. However this is not the case in today's society as Law is hard to read and inaccessible, as many laws are passed through delegated legislation though many of these are pasted everyday and the everyday law abiding citizen may not know about it. Laws are also often badly written and this makes them hard to read and difficult to understand. People can often read the same Act of Parliament yet come to different conclusions as to what Parliaments actually intentions were

The idea of equality before the law is subjected to so many exceptions. In so far as equal powers are concerned, it must be recognised that the police have powers over and above ordinary citizen under common law and Criminal Evidence Act 1984, such as the ability to use reasonable force when making an arrest. Ministers also do have power to enact delegated legislation and the government exercises prerogative powers. Members of Parliament have immunities not available to citizen. In the words of Sir Ivor Jennings, 'No two citizen are entirely equal.'

Therefore we are not equal before the law, however are we subject to being equal under the law but just in different ways?

The third principle deals with the protection of rights under Common law. Dicey's preference demonstrates a faith in the judiciary. As under the rule of law is that there should be access to justice. However this only works base on the idea that the ordinary people have faith in the criminal justice system, however this is clouded by the fact that access to justice is denied to many citizens due to its high costs and financial barriers. Also that the court hears cases openly and fairly, requiring judges to be unbiased. Although in some cases judges may become ‘case harded' by hearing similar cases over and over again.

How Relevant To 21st British Politics And Society Is The Rule Of Law?

Supporters of a written and clearly defined constitution believe that as society has had its liberties more and more encroached on by central government, the Rule of Law is more important now than ever. They claim that central government has sought and seeks to undermine the three basic tenets of Dicey's code with an increase in things such as:

  • the Official Secrets Act
  • the attempt to remove an individual's right to trial by jury
  • the activities of the Secret Service (especially after September 11th)

removing what were considered traditional rights (such as the removal of the workers right at GCHQ to belong to a trade union under the Thatcher government (though brought back since 1997)

The gagging clause that now has to be signed by those in the Civil Service after the Clive Ponting and Belgrano issue shortly after the end of the Falklands War

However, individuals still retain a great deal of personal freedom and many individuals will never be affected by the Official Secrets Act or the activities of Britain's secret services (though they may not know if they are being investigated or not!) It is agreed with some justification that a modern society needs bodies like MI5 and MI6 simply because there are a tiny number of individuals who wish to subvert society and have to be dealt with accordingly. A law-abiding individual, it is argued, need never worry about such organisations.

Also there are bodies that theoretically oversee the activities of government agencies and their work - such as the Council of Tribunals and the Parliamentary Commissioner. It is argued that these bodies help to protect the rights of the individual at the expense of any incursions into their personal freedom by government agencies.

The flexibility of the rule of law was severely tested in the House of Lords in July 2003 in the case of R. (on the application of Anufrijeva) v Secretary of State for the Home Department. It concerned the legal effect of a decision which had not been notified to the appellant affected. By legislation an asylum-seeker is permitted the right to income support. However, this support could be terminated once he ceases to be an asylum-seeker. The Home Secretary in this case decided to refuse the appellant asylum and his decision was recorded only in an internal file note in the Home Office. However when this was decision was communicated to the Benefits Agency they denied the appellant any future income support, this being done without the knowledge of the appellant. Thus creating distrust within judges in this area as how was the defendant able to make an informed choice on what to do next when not informed of the decision. The rule of law allows access to justice but how can anyone truly access this justice when they are not informed of a decision that is needed to access justice through appeal?