Law Sessions With Jennifer Housen’s Podcast

Legal Systems, Special Privileges, and the Question of Equality

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

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We explore Dicey's second principle of the rule of law – that all people, regardless of rank or status, are equal under the law – and examine how this principle manifests in the UK's legal system while considering its limitations and criticisms.

• The UK considers itself a strong supporter of the rule of law, particularly the principle that all are subject to one legal system
• Government and public officials must provide legal basis for their actions and are accountable to the same courts as ordinary citizens
• Special powers and privileges exist for certain officials (police, ministers, diplomats) within the framework of law
• Judicial review ensures public officials do not exceed their powers, serving as evidence of the rule of law in action
• Dicey's third principle that rights are best protected by common law rather than a bill of rights appears outdated
• The Human Rights Act now provides a single codified document where citizens can identify their rights
• Courts still play an important role in interpreting statutes and defining the scope of rights expressed in legislation


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

Speaker 1:

Welcome back to this third segment of this law session of public law dealing with the rule of law. Now, immediately before the break, we looked at Dice's exposition of the rule of law and we considered to some depth the first part of that exposition, which was that there ought to be no punishment unless there's a breach of law, and we looked at how that principle stands up all in all. Now what we're going to start with here is looking at Dice's second principle, that all, regardless of their rank or status, are equal under the law. Now, when you look, for example, at how long it took the UK to enact the Human Rights Act, we see that one of the reasons for the intransigence was that the UK considered itself to be somewhat a country with a fierce approach to the rule of law, and so it almost felt like we don't need to enact something because we are very fear, like that, as it were, and so what we get is a country who regards itself as one that strongly supports the rule of law. In this sense, and in particular, the second part of Dice's exposition, Now, the principle is intertwined with the concept of responsible government.

Speaker 1:

Now the principle dictates that, regardless of your status in society, there is one legal system that applies to all. Now you may get some jurisdictions where if, for example, you are in a section of society, you may have to go to a different type of court or an administrative court. Here it's one legal system and it applies to all. So even the government and public bodies and officials are all subject to that one legal system. Now, public bodies have to provide a legal basis for their actions, and the way they use their authority is also accountable. So where there is an abuse of power by a public body or where there's a violation of the law, then this can be rectified within the ordinary courts that also determine disputes for regular citizens. So in that respect, the UK does have a strong basis when it comes to this. All are equal under the law, because what we have is, if it's me or the Prime Minister or whoever else, it is the same court that decides our fate. Now, at the time of Dice's writing, this was not the case in France, for example, where they had a separate administrative court to deal with public officials.

Speaker 1:

And it is important not to confuse this branch of Dice's description of the rule of law to mean that everybody all citizens that is have equal powers. That would be wrong. It's almost like the animal farm approach. If you've ever read Animal Farm, All are equal and under the law, but some are more equal than others. Don't imagine that Dicey's exposition says that everybody has equal rights. That's not strictly true, because when you look at police officers, for example, they have special powers.

Speaker 1:

Ministers of government, even diplomats, parliamentarians, have certain special privileges. When you look, for example, at the way diplomats are dealt with and if you have been following the news recently, for example, the case to do with Julian Assange, who's the chap who is supposed to be extradited to well, he was supposed to be sent back to Sweden I believe it is but he is now holed up in the in an embassy in London and the embassy gave him political asylum. And the interesting thing is, albeit he's in London, the police officers here cannot just storm into that embassy and take him, Because when you look at the diplomatic posts, for example, they have got special privileges. That is the kind of thing you need to seize on when you look, for example, at have got special privileges. That is the kind of thing you need to seize on when you look, for example, at the rule of law and in particular under this second exposition. Because is it that you have situations where there are some persons who are I wouldn't use the term above the law, but there are some persons who may not, in all fairness, be equal, as it were, and so there are special privileges attaching to their status? Now, when we look at this second part of Dice's theory, we see that it does attract some criticism, not least again from Professor Jennings, some criticism, not least again from Professor Jennings.

Speaker 1:

It is important to see that all these special powers and privileges exist within the law, and if they are exercised beyond the extent granted by law, then the public officials can, of course, be held to account and they can be ordered by the courts to remedy the situation. Now, the main way that you will, of course, ensure that public officials do not exceed their power is, of course, to go through the process of bringing an action for judicial review. Now, judicial review is the last in the series before we get to how you answer exam questions. It is the last in the series of lectures that we will do in public law, and what judicial review looks at is when you have, for example, some sort of decision being made by a public body, then it is amenable to review by a court of law, the same court that you or I would go to in a private matter. Now, judicial review, of course, is strong evidence and is certainly indicative of the operation of the rule of law in the UK.

Speaker 1:

Now, when you look at Dice's exposition and the last point, under Dice's exposition he says that rights and privileges are best protected by the common law rather than, say, a bill of rights. It is this branch of Dice's analysis that might be somewhat archaic. So if you get a question, for example, that says Dice's exposition of the rule of law is anachronistic, meaning that it is old-fashioned and has no relevance to contemporary society, you would, for example, look at the first two. You would then look at this third point as to the protections by way of the common law and by way of the common law we are talking about the courts and the cases and so on and we see that this is the one that has been heavily diluted and is of lesser relevance. That's not to say it is irrelevant, because you will see shortly that it still does bear relevance.

Speaker 1:

Now, this branch of Dicey's analysis highlights the period in which Dicey was writing. Now the English Constitution being, as it is, largely uncodified, what you get is individual rights and privileges had to be kept, as it were, within the cases. So all of these rights and privileges were those that were determined by the courts in the cases. Now the case law outlining the different rulings relating to individual rights became the sort of guide to society of what their rights were. Now one must ask the question if all members of society are going to be able to rely on their rights, is it that they're able to understand court judgments in order to review them and therefore determine their rights?

Speaker 1:

And also looking at trying to determine their rights would be a completely tedious task. I mean, you're a law student and you're supposed to be reading the cases. How tedious is it for you? So imagine the layman who has to look for. Well, consider to himself do I have a right to a fair trial? And go through a slew of cases to try and find that.

Speaker 1:

So when you look at Dice's exposition, you can understand that that particular point appears to be somewhat period sensitive, sensitive to the period when he was writing, because arguably it would be easier for someone to be able to request, for example, a copy of a Bill of Rights and to read this single, comprehensive document to determine what his or her rights were. Also, when you look at the common law system, if a particular right has not already been declared or determined by the courts, then of course a person would have to go through the lengthy process of a trial to determine if the right even exists. So whilst you can sympathize, or rather empathize, with Dicey in respect of the time when he was writing, one has to consider that contemporary society has moved on, because we now have word processors and computers and you know writings which can be picked up at a moment's notice. So arguably, it may very well be that, when you look at it in context, today we have a parliament which is a body that declares what rights are, and they set these out in enactment of statutes. Now, since 1965, as a British citizen, you could certainly petition the European Court of Human Rights on matters relating to your Convention rights and since the HRA, the Human Rights Act in 1998, which came into force in 2000, the local courts have as a reference point the Human Rights Act and it is a kind of Bill of Rights for the UK. Now I want to pause here and say you could legitimately get a question in an exam that say it is time for a Bill of Rights.

Speaker 1:

You need to know what is a Bill of Rights. How would that be entrenched, as it were, within the UK? How would it work? What would be the basis? Given parliamentary sovereignty, how could it stand?

Speaker 1:

Now, the Human Rights Act does provide for rights for citizens and as such, it is a single codified document that you can go and look at.

Speaker 1:

The danger, of course, and its Achilles heel is, of course, the fact that it is an act of parliament and, in the same way that it was passed, it can be repealed.

Speaker 1:

Be that as it may, going back to the issue of the rule of law, the Human Rights Act does provide a single place that the British citizen can go and look for his rights. British citizen can go and look for his rights. So Dice's view, then, is not entirely relevant in regard to this third point, but it is not totally irrelevant, as the courts still have the duty to interpret the statutes, to give greater definition to the rights which are expressed in the statute. So statutory interpretation does play a part in respect of the rule of law, and certainly when we look at this third aspect of Dice's theory. That then brings us to Dice's tripartite theory and the three aspects to it. What I want us to then conclude with in the next segment is how the rule of law has practically manifested itself, and certainly we will continue immediately after the break to look at these practical manifestations of the rule of law.