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Dicey's rule of law
Public Law (LX1032)
Brunel University London
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Public LawPreview text
“The definition of the rule of law has not changed since Dicey’s times”
Dicey’s rule of law, although criticized, is a pillar in the UK constitution and is very much relevant now as it was in Dicey’s times. Definition of the rule of law has not changed significantly in the way it’s being applied.
When characterizing the rule of law Dicey identified three distinct principles which are as follows
- no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of the law.
- the law should apply to equally to all
- the general principles of the constitution are protected through the courts.
Dicey’s first principle, there should be no punishment without the breach of law. This principle echoes the belief that abuse of power should be prevented. In Dicey’s times a case that considers this principle is that of Entick v Harrington. Where the Earl of Halifax general warrant was issued unlawfully which meant the entry to and the searching of Entick’s home to be unjustified. Similarly in recent times cases such as IRC v Rossminster establish the same principles brought nearly 250 years ago in Entick v Carrington. Rossminster, a financial company suspected with fraud were searched by officers however the officers at the scene failed to provide a warrant that referenced any particulars nor the offenses alleged against them.
The court of appeal found that in pursuant with providing liberty to an individual it is our duty to
say that the warrant must particularize the specific offense which is charged as being fraud on the
revenue. If this is right, it necessarily follows that this warrant is bad. Further enforcing Dicey’s
first principle of the rule of law that no man should be punished without the breach of law.
Dicey’s second principle that the law should apply to all speaks to the fact that there should be
supremacy of law over supremacy of people and that all people in a position of power or status
should be held to the same laws. Naturally Entick v Carrington in Dicey’s times is relevant to
this principle as the Earl of Halifax is to be subjected to equal application of the law and
therefore be held accountable for issuing unlawful warrants that lead to the trespassing of
people’s homes. A more recent example of thai which further illustrates that Dicey’s rule has not
changed much and is still relevant in today’s legal sphere is the case Re M (1994) the Home
Secretary was found to be in contempt of court for failing to follow a mandatory interim
injunction. This ruling by the House of Lords was very important firstly because it supports
dicey’s principle that the law should apply equally to all and secondly because before Re v M,
the crown and minister of the crown could not be held in contempt because of a lack of their
legal personality. Lord Wolf stating that proceedings against a government department or a
minister in an official capacity would not be either personal or punitive ... This does not mean
that a finding of contempt against a government department or minister would be pointless. The
very fact of making such a finding would vindicate the requirements of justice. Without justice
there is no rule of law, furthering the importance of rule of law even in today’s times
Lastly, the third principle is that general principles of the constitution are protected through the courts. An important feature of this is judicial review which allows individuals to challenge decisions made by public bodies that they feel infringe upon their rights. R (on the application of G) v Immigration Appeal Tribunal and another; R (on the application of M) v Immigration Appeal Tribunal and another [2004] was a case in which two asylum seekers had their application rejected by the Home Secretary. They sought to challenge the decision but were rejected by the Adjudicator and the Immigration Appel Tribunal. Thereafter the only option they had was a statutory review procedure that is in the form of a review of written submission by a High Court Judge. It was felt that this was less comprehensive protection that a four stage judicial review process. The court held that the statutory sheme was sufficeint in provindig oversight to an executive action, Many critics felt as though this procedure significantly reduced the rights of individuals to seek review of executive actions.
However for as much as Dicey’s rule of law is still relevent in today’s legal sphere it must be acknowledged that the definition of the rule of law has been subject to minor change. One such reason for this would be the statutory review procedure in the case mentioned previously. Incremental measure such as this that restrict the acces to courts where the state needs to be held accountable may erode the rule of law overtime.
Lord Nurebuerger that, for the rule of law to flourish, it must be possible for people to know the
law, to be able to access it, understand it, and use it, and to be able to seek legal advice at a cost
they can afford. He believes that Access to the courts is thus a key component of the rule of law,
as without it we may be unable to hold others to account, including the executive for its use of
power.
Dicey's rule of law
Module: Public Law (LX1032)
University: Brunel University London
