Law Sessions With Jennifer Housen’s Podcast

When Law Meets Justice: Understanding Dice's Rule of Law in Modern Context

Subscriber Episode • • Jennifer Housen • Season 3 • Episode 2

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We explore Dicey's exposition of the rule of law and its three key principles while examining how these principles have been challenged and evolved over time. The tensions between the rule of law and parliamentary sovereignty reveal fundamental questions about justice, fairness, and constitutional balance.

• Dicey's rule of law consists of three principles: no punishment without breach of law, equality under the law regardless of rank, and rights best protected by common law
• Sir Ivor Jennings critiqued Dicey's approach as unrealistic even for his time, citing numerous examples of discretionary power
• The principle against retrospective legislation remains relevant today, enshrined in Article 7 of the European Convention on Human Rights
• The case of Burma Oil v Lord Advocate demonstrates how parliamentary sovereignty can override rule of law principles
• The War Damages Act 1965 showed Parliament's willingness to legislate retrospectively despite rule of law concerns
• Equality under law, Dicey's second principle, is often misunderstood and requires careful examination


💡⚖️ Let’s learn the law together—one session at a time!

Speaker 1:

Welcome back to the second segment in this rule of law public law law session. Now, before the break, I gave you a range of ways to look at rule of law and we considered it, or we looked at it from a philosophical, we looked at it from a political standpoint, and immediately before the break I said I'm going to touch on where most law students tend to start their work, and that's to do with Albert Van Dyck's rule of laws exposition. Now, to be fair, the general approach when you're coming to a public law exam, and certainly when you're looking at rule of law, is that you tend to get a question that sometimes says or by and large most of them tend to say you know, is Dice's rule of law or the exposition of Dice's rule of law still relevant? And so, of course, you need to know what is Dice's explanation of the rule of law. Well, his explanation can be summed up with three broad principles and, frankly, this is the most widely accepted and debated view of the concept as it relates to the English constitution. He says the rule of law provides for one, that there can be no punishment unless there's a breach of law. Two, despite your rank or status, all are equal under the law, and three rights and privileges are best protected by the common law rather than a Bill of Rights or in statute law rather than a Bill of Rights or in statute. Now, by and large, we will go through these three, but the fact of the matter is, you tend to find that the first two are still of immense relevance today, but the third one is not as relevant and may actually be confined in time to the period when Dicey was writing.

Speaker 1:

So let's start with no punishment without law. Well, the first principle mainly looks at the prohibition against arbitrary and retrospective legislation. What it looks at is that it is an inherently unjust state of affairs for a citizen to be punished for an act that was legal at the time he committed the act. Now, if the law said it was legal, then you not ought to be told later that it no longer is and so you will now be punished. And although it wasn't a crime when you did it, now it is and you are being punished for that.

Speaker 1:

Well, that, of course, clearly shows, or arguably shows, that that is a contravention in respect of rights and, as such, a contravention of the rule of law, now, even in dice's days, at the height of the sort of Victorian laissez-faire approach and before Parliament became the dominant lawmaker because it wasn't what we had was you see this development of the common law over time? What we see is Dice's insistence on a lack of arbitrariness and the absence of wide discretion, which, he was expounded, did seem somewhat unrealistic. Now you can see the basis for it, but, like with anything, you're going to of course have some criticism, because the fact is that he was looking at it from the standpoint of well, you should not, if you are the lawmaker, make something illegal and then hold me to that later illegal standard, when the fact is, when I did it, it was not illegal. Now, sir Ivor Jennings actually critiqued that approach taken by Dicey and he said well, that doesn't really stand up to water, does it? Because any court can punish me for contempt of court by imprisoning me for an indefinite period, and if I am convicted of manslaughter, I may be released at once or imprisoned for life. If I'm an alien, my naturalization is entirely within the discretion of the Home Secretary. If the Queen declares war against the rest of the world, I am prohibited from having dealings abroad. And what we see, even with this point, is that go back to contract law. When you look at some of the cases in contract law, for example, we see situations where particularly in frustration, where someone has made an agreement with a company in a foreign country, subsequently there is a war with that country and we find that there is an issue with it.

Speaker 1:

The point is, jennings is looking at it from the point of view of saying that Dice's approach is somewhat simplistic. He says if the country is in danger, my property can be taken. Also, I might not even get compensation. If a public health authority wants to flood my land in order to build a reservoir, it can take it from me. Compulsorily, I can be compelled to leave my work for a month or more in order to serve on a jury. All these powers and a lot more, he said, were possessed by public authorities at the time when dicey was writing, which was in 1885. So he's saying it is somewhat simplistic to look at that first point and consider well, you know it really should not be that you are subjected to certain types of laws. If that was not the case when you started along the continuum, so back in 1985, we do see that even at that time Dice's approach may have been somewhat unrealistic. So, looking at it, jennings said well, all of these things could happen and can still happen, as the case may be.

Speaker 1:

Now jennings going to say that when you look at the lawmaking process, although the three component parts of parliament commons lords the crown must agree to legislation, this does not mean that arbitrary laws cannot be passed. Now, even if we go back to situations where laws have been passed the one I'm thinking of is picking on British Railways. Now, I'm not saying it's arbitrary, but the point that Mr Picking was making was that it had not followed the procedure. Couldn't that be bordering, for example, an arbitrariness? Because again, at the time when Mr Picking started on his foray of buying the next door land, it was not the law then that he could not get the land when the railway lines became disused. So Jenin points out to various situations and not least the Defense of the Realm Act 1914, which he said. This act conferred wide-ranging powers on the executive to deal with the war situation. Now the bills passed the Commons in one sitting and it sped through the Lords as well. To that, of course, you can see the Official Secrets Act of 1911, anti-terrorism legislation in 2001, and a lot of these legislation, particularly in light of terrorism being, in contemporary society, a matter of some concern, we do see legislation moving arguably at the speed of light in going through Parliament. Might it not be that there is some comment to suggest that there may be a degree of arbitrariness?

Speaker 1:

There's also, of course, the problem of retrospectivity, which Dicey condemned To make a person liable for an offense which, at the time the act was committed, was not an offense, he says, contravenes the rule of law. Well, that's why Dicey's exposition of that first point is still relevant, because when we look at the European Convention on Human Rights, in Article 7, and remember that the Human Rights Act of 1998, which came into force in 2000, does actually bring over most of the articles, including Article 7. It doesn't bring over all of them, and we will discuss that in a later lecture, but it certainly brings over Article 7. And Article 7 prohibits the retrospective imposition of criminal liability. It is also a presumption of statutory interpretation that Parliament does not intend to legislate with retrospective effect and, of course, a case in support of this is Waddington and Meyer.

Speaker 1:

Waddington and Meyer is a 1974 case and it supports the concept of the rule of law and was a case concerned with the question of whether the Immigration Act 1971 was retrospective and whether it was contrary to Article 7 of the ECHR. The act was in effect retrospective, but the House of Lords in their ruling said it was not. Now, broadly speaking, the act at the time seemed to have been a somewhat racist approach being taken against Commonwealth citizens in order to control immigration into the UK, and the idea was that the way it was presented it appeared retrospective and certainly it's said as much. But the courts were of the view that this certainly couldn't stand stand Now. Retrospectivity was also considered in respect of the case of Burma Oil and Lord Advocate. Now the House of Lords denied the application of law with retrospective effect by using Article 7 of the ECHR.

Speaker 1:

When we look at the Waddington and Meyer case but consider the Burma oil case Well, burma oil and load advocates we see here that it has a profound effect on the rule of law because Parliament subsequently passed the War Damages Act in 1965 based on the actual case, and by giving the War Damages Act retrospective effect it effectively overturned the House of Lords decision in the case and of course there is an argument that it contravenes the rule of law.

Speaker 1:

But this is where you get the rule of law having a conflict with parliamentary sovereignty, because by virtue of parliamentary sovereignty albeit that clearly, the rule of law appeared to be contravened, what took precedence was parliamentary sovereignty over the rule of law.

Speaker 1:

So, in Burma Oil and Load Advocate, we see that the courts certainly was of the view that it was unfair and unconscionable for these persons to have lost their property at the hands of the government and that the government ought to, for its part, compensate them. But what we see is the legislature, parliament saying that is not the case and that will not stand, which, of course, bears out that parliament is supreme and even as we consider the rule of law, does it take second place. Now, dice's second principle is that all are equal under the law. Now, this is one of the more misunderstood points in respect of Dice's exposition of the rule of law. It is something that needs careful consideration and in order to start that careful consideration, we will, of course, take a short break and as soon as we return, we start off by looking at that second point in relation to Dice's exposition of the rule of law.