5.4 Dicey’s Version of the Rule of Law

There is a particular English version of the rule of law famously

promoted by A.V. Dicey (1885) which still influences the way lawyers

conceive the constitution. Dicey’s version of the rule of law emphasises

the ideas of generality, certainty and equality but goes further in

stressing the common law basis of the constitution with its emphasis on

the individual and its independence of government (see R. v. Secretary

of State ex parte Pierson [1997] 3 All ER 577 at 606 per Lord Steyn).

Dicey formulated a threefold version of the rule of law.

(i) The absolute supremacy or predominance of ‘regular’ law as opposed

to arbitrary power and the absence of discretionary authority on the part

of government. ‘No man is punishable or can be lawfully made to suffer

In body or goods except for a distinct breach of law established in the

ordinary legal manner before the ordinary courts.’

This means firstly that no official can interfere with individual rights

without the backing of a specific law. For example in R v. Somerset CC

ex parte Fewings [1995] 1 All ER 513 Laws J said (at 524) that the

principles that govern the application of the rule of law to public bodies

and private persons are ‘wholly different’ in the sense that ‘the free-

doms of the private citizen are not conditional upon some distinct and

affirmative justification for which he must burrow in the law books’ . . .

But for public bodies the rule is opposite and so of another character

altogether. It is that any action to be taken must be justified by positive

law.’ Laws J described this as one of the sinews of the rule of law and, as

Hobbes put it, ‘Freedom lies in the silence of the laws.’ However, this

only applies to acts that interfere with legal rights as such. For example

98 General Principles of Constitutional and Administrative Law

in R v. Secretary of State for Social Services ex parte C (2000), it was

held that a government department was entitled to place a man’s name

on a child abuse black-list without giving him a prior right to be heard.

Although entry on the register harmed the individual by destroying his

job prospects, his legal rights were not infringed.

Secondly Dicey believed that officials should not have wide discre-

tionary powers. For example in Rantzen v. Mirror Group Newspapers

(1994) the Court of Appeal condemned the wide discretion given to

juries to fix the amount of damages in libel cases as violating the rule of

law. However, governmental discretion is inevitable. Rules cannot be

devised to deal with every possible case, and modern government with

its concern for child welfare, public health and education could hardly

operate without discretionary powers in order to tailor decisions to

individual circumstances. Resources also run out and choices have

to be made between competing goals (see e.g. R v. Cambridge Health

Authority ex parte B (1995); experimental medical treatment). Dis-

cretion is also essential to lighten the burden of the strict law. The

police do not have to prosecute everyone. The Revenue may release a

taxpayer from a tax burden.

It is often asserted, particularly by those in power, that discretion

is good because it enables power to be exercised benevolently. For

example the Anti-Terrorism, Crime and Security Act 2001 gives wide

powers to official bodies to exchange information both with each other

and with overseas police which they hold about individuals. This has

been defended on the basis that the officials concerned have a discretion

which they will use reasonably (see Observer, 25.11.2001, www.obser-

ver.co.uk/libertywatch). Dicey emphasises the republican belief namely

that it is degrading to rely on the notion of a kind master. Moreover,

Dicey did not rule out all discretionary power but only ‘wide arbitrary

or discretionary power of constraint’ (1915, p. 184). He insisted on

limits to and controls over the exercise of discretion. These include

guidelines based on the purposes for which the power is given and

standards of reasonableness and fairness. In other words, the rule of

law is a broad guide to the values which should underpin the law (see

Endicott, 1999).

(ii) Equality before the law; everyone whether high official or ordinary

citizen is subject to the same law administered by ordinary courts.

Dicey believed that everyone is subject to the same law administered

by the ordinary courts. He did not mean that there are identical rules

for everyone and that no one has special privileges. This would have

been obviously untrue. The law singles out many groups, for example,

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the Crown, MPs, foreign governments, judges, diplomats and police

officers all of whom have special duties and privileges. The rule of law,

however, requires that any special treatment must be justified on the

ground of public welfare and also in accordance with current ideas of

human rights (see R. v. Port Talbot BC ex parte Jones (1988)). By con-

trast for example the Hampshire police force once announced that it

gave special treatment to ‘high-profile’ people accused of offences (see

Guardian, 19 November 1998).

Most importantly Dicey meant that officials enjoy no special

protection as such. This has two aspects. Firstly, if an official exceeds

or abuses his power, he is personally liable just as if he were a private

citizen. For example, a policeman who unlawfully enters property is a

trespasser whom I can sue for compensation. Nevertheless this is not

adequate to remedy abuses of the wide-ranging powers of modern

government. Many official powers, for example the improper refusal

of a welfare payment or of a council home, have no parallel in the

world of private citizens, thus making Dicey’s principle irrelevant (see

Cocks v. Thanet DC (1983)). Secondly disputes between government

and citizen are settled in the ordinary courts according to the ordin-

ary law rather than in some special governmental court such as the

notorious prerogative courts, including the Star Chamber, which were

abolished in the seventeenth century. In this respect Dicey (1915,

p. 333) compared English law favourably with the law of France where

there is a special system of law and courts dealing with the powers of

government (droit administratif enforced by the administrative Conseil

D’Etat). Dicey thought that special administrative courts would give

the government special privileges and shield the individual wrongdoer

behind the cloak of the state. Jennings (1959), however, argued that

Dicey had misunderstood the system of droit adminstratif which in fact

provided effective remedies for abuse of power. Moreover the Conseil

D’Etat can be defended on separation of powers grounds providing a

good example of how the rule of law can be understood differently in

different political cultures.

This aspect of Dicey’s teaching has had great influence upon the UK

constitution. Until as recently as the 1970s there was resistance to the

idea of special courts and judges to deal with disputes involving

governmental powers. Since 1977, however, a version of public law has

been introduced, albeit within the ordinary court system. This centres

upon a special procedure in the Administrative Court designed for the

purpose of challenging government decisions. In partial vindication of

Dicey, however, attempts to distinguish between public law and private

law have floundered (see below, Chapter 17). There are also numerous

100 General Principles of Constitutional and Administrative Law

‘special’ systems of law, such as social security law and immigration

law, which deal with disputes between the individual and the state.

These are administered by specialist tribunals outside the ordinary

courts which often include lay people. Such tribunals are speedier,

cheaper, more informal, and even sometimes more expert than the

‘regular courts’. However, they are usually subject to the supervision of

the ordinary courts.

(iii) The constitution is the ‘result’ of the ordinary law.

Dicey’s third meaning of the rule of law derives from the common

law tradition and relates to the extended notion of the rule of law.

He believed that the UK constitution, not being imposed from above

in the form of a written constitution, was the result of decisions by

the courts in particular cases, and was therefore embedded in the

very fabric of the law and backed by practical remedies. This pro-

motes equality between citizen and state by treating private law with

its concentration on individual rights as the basic ideological perspec-

tive of the constitution and encouraging the courts, not to construe a

statute as violating basic rights. For example in R. v. Lord Chancellor

ex parte Witham (1997) it was held that regulations made by the Lord

Chancellor which provided for a minimum fee of £100 to issue a writ

were invalid because that they discriminated against low-income

people. Laws J put the matter in constitutional terms. ‘In the unwrit-

ten legal order of the British State, at a time when the common law

continues to accord a legislative supremacy to Parliament, the notion

of a constitutional right can in my judgement inhere only in this

proposition that the right in question cannot be abrogated by the state

save by specific provision in an Act of Parliament . . . General words

will not suffice. And any such rights will be creatures of the common

law, since their existence would not be the consequence of the demo-

cratic process but would be logically prior to it’. (See also R. v.

Secretary of State for the Home Department ex parte Simms [1999] 3

All ER 400 at 411.)

The seminal case of Entick v. Carrington (1765) brings together all

three aspects of Dicey’s rule of law. The Secretary of State ordered two

King’s Messengers to search for Entick, accused of sedition, and to

bring him with his books and papers before the Secretary of State.

Entick sued the Messengers. The court held that the plea of ‘state neces-

sity’ is unknown to the common law because there was no precedent

from which it could be derived, that the practice of issuing general

warrants giving a wide discretion is unlawful and open to challenge in

any court, there being no special rights available to officials as such,

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and that the Messengers had no specific statutory authority regarding

the particular papers that they seized. On the other hand, the more

recent case of R. v. IRC ex parte Rossminister Ltd (1980) where Parlia-

ment had given a general power to tax officials to enter and search

private premises illustrates the tension between the common law and

parliamentary supremacy. Dicey tried to reconcile his rule of law

with parliamentary supremacy but not entirely successfully. We shall

discuss this in Chapter 6. Perhaps Dicey’s version of the rule of law

shows only that he trusted judges as a hedge against the popular

democracy which he feared.

5.5 The International Rule of Law

Since the Second World War there have been several attempts to draw

up internationally binding codes of basic human rights and to adjudi-

cate in international courts promoting international rule of law stan-

dards. Modern international instruments include the United Nations

Universal Declaration of Human Rights (1948), and the Declaration of

Delhi (1959), an unofficial pronouncement of lawyers from 53 countries

concerned primarily with the rule of law in the sense of fair procedures.

There is also the Genocide Convention 1951 and the Torture Con-

vention 1984. War Crimes Tribunals have been established by the UN

Security Council to try those accused of atrocities in the former Yugo-

slavia and in Rwanda. These fail to meet the rule of law insistence

on generality by being limited to particular countries. It is proposed to

create a general international criminal court to deal with offences of

this kind but the USA has not accepted this jurisdiction. Under the

International Criminal Court Act 2001 there are powers to arrest per-

sons suspected of genocide, crimes against humanity and war crimes,

question them and deliver them to the International Criminal Court.

The Act also creates offences of genocide, crimes against humanity

and war crimes, wherever committed.

Of most immediate concern to UK law is the European Convention

on Human Rights (ECHR). The European Convention on Human

Rights, which drew heavily on the UN declaration (above), came into

effect in 1952 under the auspices of the Council of Europe as a response

to the fascist and communist atrocities that had disfigured much of the

twentieth century. Individuals have a right to petition the European

Court of Human Rights in respect of violations by states. Under the

Human Rights Act 1998, most provisions of the Convention have

belatedly been made binding in UK law although they do not override

102 General Principles of Constitutional and Administrative Law

Acts of Parliament (Chapter 18). The rule of law is central to the work-

ings of the ECHR. For example, exceptions to the rights protected by

the convention must be ‘prescribed by law’. In this context ‘a norm

cannot be regarded as a law unless it is formulated with sufficient

precision to enable a citizen to regulate his conduct: he must be able

if need be with appropriate advice – to foresee, to a degree that is

reasonable in the circumstances, the consequences which a given action

may entail’ (Sunday Times v. UK (1979); see also Observer and Guardian

Newspapers v. UK (1992)).

The idea of the rule of law comes under particular stress when

we realise that there is more than one kind of legal order and that

clashes between the requirements of different legal orders, in particular

between international law and domestic law may raise incommensur-

able values. International law as such is not automatically part of UK

law, which has adopted a ‘dualist’ approach. This means that an inter-

national treaty, if it is to alter domestic law, must first be incorpor-

ated by statute into UK law. However, customary international law is

recognised by the common law (Chung Chi Cheung v. R. [1939] AC 160

at 168; R. v. Bow Street Magistrate ex parte Pinochet (No. 3) [1999] 2

All ER 97 at 177). Therefore a treaty which embodies customary law

may be part of UK law whether or not it is enacted.

The rule of law also comes under stress where its requirements clash

with important political concerns, thus raising the question of immun-

ity from the normal operation of the law. As we have seen, immunity is

compatible with the rule of law provided that it is conferred by the law

itself, for acceptable and proportionate reasons and its limits are clearly

defined. R. v. Bow Street Magistrate ex parte Pinochet Ugarte (No. 3)

(1999) revealed two broad approaches to immunity, one being con-

cerned to harmonise domestic law with international values, the other

being formalist, concerned with traditional notions of legal certainty.

The Spanish government had requested that Pinochet be extradited

to Spain to stand trial in respect of murders and torture which he was

alleged to have organised in Chile during his term of office. Tradition-

ally the attitude of international law has been not to intervene in the

internal affairs of a state except with its consent. In recent years,

however, international concerns have begun to erode this principle and

the Torture Convention 1984 requires a state either to prosecute or

extradite an alleged offender. The Torture Convention had been

translated into English law by the Criminal Justice Act 1988. Pinochet,

however, relied on the widely accepted doctrine of state immunity,

according to which a head of state cannot be tried in a domestic court.

Complete immunity applies to serving heads of state. Immunity also

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applies to former heads of state but only in relation to official acts

committed while they were in office. The traditional attitude of inter-

national law has been that the express consent of a state is required in

order to override the immunity. The Torture Convention does not

mention immunity at all.

The House of Lords, unusually comprising seven judges, eventually

held that Pinochet was not entitled to immunity. However, their Lord-

ships took different routes to their conclusions some applying the

international rule of law directly while others looked for a peg in

UK law.

Lords Browne-Wilkinson, Hutton, Saville and Phillips held that the

matter depended on the 1988 Act but, because it was intended to imple-

ment a treaty, the Act must be construed in the light of that treaty

rather than in accordance with English legal values. They held that

state-sponsored torture violated fundamental principles of interna-

tional law which Chile had accepted by signing the convention and was

therefore not to be regarded as part of the official functions of a head of

state which the immunity protected. They held, however, that Pinochet

could only be extradited for offences which were alleged to have taken

place after 29 September 1988 which was the date on which the

Criminal Justice Act 1988 came into force. This reflects the rule-of-law