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

Nicolas J.

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"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"

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The rule of law is often expounded as a pillar of the English Constitution. It was described by Lord Bingham as "the second great rock on which [Dicey?s] constitutional edifice was founded". It was referred to as a 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 which have characterized the political institutions of England since the Norman Conquest: (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. In the 13th century, Bracton famously stated "The king must not be under man but under God and under the law, because law makes the king, Let him therefore bestow upon the law what the law bestows upon him, namely, rule and power." It was in this spirit that Dicey formulated the rule of law into 3 elements: (1) that no one is punishable except for breach of the law established in the ordinary manner; (2) that no man is above the law; and (3) that the law of the constitution is developed and upheld by the courts of the land. This essay will focus on the first two of Dicey's elements.

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The rule of law by Dicey : Two elements
1. nN one is punishable except for breach of the law established in the ordinary manner
2. No man is above the law
Dicey's definition of the rule of law: the two conceptions of the professor Craig
1. The formal conceptions
2. The substantive conception

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[...] they make provision for the future, but this was qualified when Parliament enacted the War Damage Act 1965[13]—a retrospective piece of legislation. The Act was in response to the House of Lords ruling in Burmah Oil Co (Burma Trading) Ltd v Lord Advocate[14], the effect of the Act being that the no person would be entitled at common law to receive compensation from the Crown in respect of war damage before the Act, effectively overturning the House of Lords decision. [...]

[...] Another problem is that, due to Parliamentary Supremacy, Parliament can enact legislation granting the Government, in theory, any power it wishes. The second element of Dicey's definition is that no man is above the law. 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. [...]

[...] Dicey, 10th ed reprint, p Bracton De Legibus et Consuetudinibus Angliæ, fo 5b. Cited in Halsbury's Laws of England—Constitutional Law and Human Rights (vol. (reissue)), para note 2 (Liberty of Subject) (1354) 1354 c Edw.3 [2001] UKHL 56 (1765) 19 State Tr [1980] AC 952 [1969] 1 AC 645 [1994] 1 AC 377 Halsbury's Laws of England—Crown and Royal Family (Vol. 12(1) (reissue)), para 1965 c.18 [1965] AC 75 [1967] 1 AC 259 [1998] AC 539 p.591, E Adapted from p.266, Lord Steyn, March 2004— http://www.telegraph.co.uk/news/uknews/1456043/Law-lords-raise-stakes-on- asylum.html 1999 c [2004] 1 AC 604 Adapted from ibid, pp & 340 Ibid, p Coronation Oath Act c Will & Mar, s. [...]

[...] Dicey has been criticised for his rejection of droit administratif, but as he stated, the rule of law protects individual freedom and ensures reverence for Her Majesty's Judges who, rather than the government, represent the “august dignity of the state”[23]—the Crown. However, on this point Dicey does admit a defect of the rule of law, that there is a danger of the courts being turned into “instruments of government”. This, indeed is a real danger, we only need look at cases such as A v Secretary of State for the Home Department to see how, in the absence of judicial independence, this could be the case. [...]

[...] When looking at Dicey's definition of the rule of law, Professor Craig makes reference to 2 conceptions—formal and substantive. The formal conception looks at the manner in which the law is made and does not concentrate on how ‘good' or ‘bad' the law is. The substantive conception, on the other hand, goes beyond the formal conception, accepting that certain rights are inherent. But what are these ‘inherent rights'? Professor Joseph Raz assists here by identifying what he felt are the most important principles of the rule of law; we shall now examine the most prominent of these. [...]

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