The modern British constitution

Explain what is meant by the rule of law. Consider whether the rule of law is still of relevance to the modern British constitution. In literal and somewhat inadequate terms the rule of law is a constitutional theory. On closer inspection difficulties arise when attempting to define it in such a limited capacity, owing to the scope and volume of different interpretations. The "rule of law becomes a banner under which opposing armies march to combat. " 1. This metaphor captures the idea that the rule of law is a multifaceted philosophical view.

Much emphasis has been placed upon the importance of adhering to this rule, not only the individual but government also, and it is strongly linked with notions of democracy. The concept of the rule of law is not young. "For many centuries it has been recognised that possession of the state of coercive powers presents a fundamental problem for both legal and political theory. " 2. The Greek philosophers recognised the need for an overriding principle or "rule of law" in order to control the powers of government.

Such a need could not be more relevant today as technological development has and still is providing the state with an increasing ability to intervene in the lives of its citizens. What then is the use of a rule so hard to define and how can it be obeyed? These are important questions to which I will return in due course. The most influential definition of the rule of law is that of the jurist A. V. Dicey. There were three central elements to his theory.

" It means, in the first place, the absolute predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even wide discretionary authority on the part of the government… " 3. This means that no one, be it an individual or government agency should be above the law and that it should be obeyed by all. Dicey takes this a step further, affirming that the 'ordinary courts' have the exclusive right to punish offenders. "; a man may with us be punished for a breach of the law, but he may be punished for nothing else. "  

The second element of Dicey's theory was the notion of equality before the law. This meant that the law was to be applied equally and impartially to all, regardless of status. He meant this with particular reference to government officials. Consequently, Dicey had great distaste for administrative courts, in particular the French droit administratif whose sole purpose was to hear cases involving citizen's actions against the state. Thirdly, Dicey focussed on what he saw as the constitutional importance of the rule of law. This was highlighted by Denning L. J in Ridge v. Baldwin [1964] AC 40.

"It means the constitution is the result of the ordinary law as developed by the courts through the common law tradition and provides for the legal protection of the individual not via a bill of rights, but through the development of the common law. " At first instance Dicey's definition seems logical and constitutionally practical, however recently it has been subject to close scrutiny and criticism, revealing inherent flaws and contradiction. Let us begin with the first element of Dicey's rule of law, the absence of arbitrary or wide discretionary powers in terms of government.

The defining of these powers itself poses problems. For example, 'arbitrary power' could be interpreted to mean power that is capable of abuse if not subject to adequate checks and controls. It could otherwise mean powers that have a direct impact upon the rights of individuals, such as the powers which were assumed by the Home Secretary in Liversidge v. Anderson [1942] AC 206 of detention without trial. If our first definition of arbitrary power is accurate, then the rule of law would surely not apply to a constitution such as ours; one which is inherently reliant on arbitration, delegation and control through report and review.

" If it is contrary to the rule of law that discretionary authority should be given to government departments or public officers, then the rule of law applies to no modern constitution. " 5. In fact, the rule of law does apply to every modern democratic constitution, just in a slightly different guise as Dicey envisaged it. A prominent critic of Dicey's, Sir Ivor Jennings, noticed the apparent weakness of his definition.

"They (Dicey etc) had no conception of the scale of duties incumbent upon a modern government which was properly concerned for the welfare of its citizens: the improvement of health, the provision of education… " 6. The modern interventionalist state, in practical terms, must rely on the use of discretionary powers in order to achieve its extensive aims in almost every area of socio- economic life, in particular since the introduction of the welfare state. Indeed industrial or employment tribunals are commonplace, as they relieve the courts of a great volume of non-essential litigation.

So, in the context of modern government, more emphasis is placed upon the control of discretionary power and effective methods of accountability rather than the complete elimination of discretionary power. "Administration itself is viewed in the first place as a discretionary activity, the benefits of which are likely to be reduced if it has to be conducted within a framework of detailed legal regulation" 7. It is apparent, therefore, that it is necessary to depart from Dicey's strict definition to discover a more constitutionally relevant model.

"[T]he special need is to eliminate unnecessary discretionary power, and to discover more successful ways to confine, to structure, and to check necessary discretionary power" 8. For example, in M v. Home Office [1994] 1 AC 177, not only did the Home Secretary abuse his discretionary powers by sending an asylum seeker back to Zaire against the instruction of the court, but his actions also raised questions as to the legal liability of the Crown (the Crown may be held liable "in respect of torts committed by its servants or agents") 9.

Since the Crown Proceedings Act of 1947, however, there were problems as to in what capacity the Crown could be held liable. It can be seen from this case, and others like it, such as R v. Khan (Sultan) [1996] 3 ALL ER 289, that the government do not always obey the law. Therefore, it becomes apparent that a complete departure from Dicey's exposition of the rule of law would be wholly inappropriate to the modern British constitution. The law must be obeyed, as it is superior to all other regulation. What is it then that warrants this superiority?

It is a feature of every civilised society that the majority of its citizens have respect for and abide by the law, as its very purpose is to reflect the collective morality of that society. A system of political authority (e. g. a democracy) is most clearly identified by its legal system, so therefore, if the public in general have 'consented' to such a political authority, they have also consented to its legal system. The antithesis of this would be, in the true meaning of the word, anarchy. This demonstrates that belief in the democratic system and respect for the law are fundamentally tied.