Law Sessions With Jennifer Housen’s Podcast

Unmasking the Rule of Law: From Dicey's Theory to Modern Practice

Subscriber Episode • • Jennifer Housen • Season 3 • Episode 4

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The rule of law stands as a fundamental principle of the British constitution, but its practical application reveals fascinating tensions with parliamentary sovereignty. When examining historic definitions from A.V. Dicey alongside modern legal cases, we discover how this principle both protects individual rights and faces significant challenges.

• Judicial review serves as a crucial check on government power by allowing challenges to executive actions
• The jury system represents a "bulwark of liberties" where citizens are judged by their peers
• Rules of evidence like the Turnbull Guidelines ensure fair trials through standardized procedures
• Landmark cases like Entick v Carrington established limits on government authority, even royal power
• The Malone case revealed how rights can be violated through legal gaps, not just through bad laws
• R v R (marital rape) raised questions about changing laws to reflect modern values versus rule of law principles
• Parliamentary sovereignty presents a paradox as both a democratic principle and potential threat to rule of law
• Non-justiciability in matters of "high policy" creates areas where legal oversight may be limited

Join us for the next lecture in this public law series as we continue exploring constitutional principles.


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

Speaker 1:

Welcome back to this final segment of this public law session on rule of law.

Speaker 1:

Now, before the break, and certainly for the last three segments, we have explored a definition. We've looked at the political theories, we've looked at some philosophical theories and we have spent some time looking at Dice's exposition, av Dice's exposition of the rule of law, and certainly looking at the three aspects that he has advanced. We've explored them to the extent that we say that when you look at what Dicey says that there should be no punishment without law, all are equal under the law and that laws are best contained within the common law we see that with the first two they still pretty much rank as having some relevant aspects. Today. We do see, of course, some onslaughts on that, because you do see where it does fall foul in certain respects and the fact that parliamentary sovereignty as one of the cornerstones of the British constitution, in respect of that concept, we see that it does affect the rule of law as well. That said, the final exposition of Dice's analysis of course suggests that that is somewhat confined to the period he was writing. That said, and before we went into the break, I said to you that on my return we would look at some of the practical manifestations of the rule of law.

Speaker 1:

Well, let's consider these. The first, of course, is the process of judicial review. The process of judicial review when we come to do the full lecture later on, shows that there is a check and balance on government and on public bodies by the court. Now, judicial review, of course, allows where government action meaning where there's action by the executive which affects an individual, action by the executive which affects an individual. Certainly, we see that that checks and balances by the process of judicial review means that the rule of law prevails, because this is where the government is against an individual, but you still have that ability to bring an action by way of judicial review. Now, the role of the jury is also another important aspect. We see here that someone who is charged with an offense is being judged by his peers, and the idea of the jury is that it stands as a bulwark of liberties in respect of you are being judged by your fellow man, as it were.

Speaker 1:

Now, the rules of evidence is another aspect of the rule of law, because the rule of evidence or the rules of evidence are set up in such a way that they ensure a fair trial. So, for example, when you look at issues relating to identification, it may be that when somebody is only seen, maybe once, and if the trial rests on identification, well, we've seen the case law called the Turnbull Guidelines, if you've not heard of it before. In the case of Crown and Turnbull, we see the Turnbull guidelines set out when ID evidence is what stands, for example, as what will make you get convicted in a court of law. It looks at things like how far away were you when you saw the person? Did you know the person before? What kind of light did you see them in? So the rules of evidence does provide a basis for the practical manifestation of the rule of law.

Speaker 1:

Now, when one looks at the established principle against the use of arbitrary power, and certainly when you look at retrospective legislation, we see that, by and large, this has come full circle, really, in the guise of Article 7 of the ECHR, which is now part of the law because of the Human Rights Act. Now, access to legal aid is also important another aspect of the rule of law because the idea is that if you're looking to bring an action which of course is very important we see that even with the erosion of legal aid, and you will have done this in a CLRI or if you're doing this topic concurrently with CLRI or English legal systems, you will see that the access to legal aid is still very important in the context of criminal litigation. Now it is not so accessible in others, and in the case of Granger and United Kingdom, this is the famously labeled MacLibel case. We see where, for defamation, there wasn't the legal aid available, and the question then is is the rule of law prevailing where you have the small person as against the big corporation like McDonald's? Should it be incumbent on the government, for example, to ensure that you are able to fight your case? Well, the jury's out on that one, literally, because the fact of the matter is, if you are going to basically do something, your actions will have consequences, and the question then is you know, is it then left to the taxpayer, as it is, to pay for that? And so when you look at defamation, yes, one can understand as well that you may want to draw a parallel with the criminal law, but again, it is something for you to consider Now when you look at some of the more important cases that you would certainly need to know for this area and if you're going to actually embark on answering any rule of law question, there certainly are some cases which are critical for you to at least get to grips with and ensure you have a grasp of them.

Speaker 1:

The first that I would certainly throw out at you is Entick and Carrington. Now, this is a 1765 case, but it's important for the concept of rule of law and in this case, what you had was the king's messengers seizing certain writings claiming that it was seditious materials. Now the court said that the warrant was illegal and that it was void, bearing in mind where it was coming from. This was the king. Again, the whole idea of you cannot be judge, jury and executioner, because the rule of law says that you must be subject to the law. It doesn't matter who you are, you can't just make it up as you go along if you like. Now, in the Rosminster case, extensive powers were granted in a warrant for searching premises, and it also allowed for the seizure of materials. Now, the courts condemned this entire display and the width of the warrant, but the court nonetheless said that it was within the law, albeit that there was some aspects of it that were arguably up for criticism In Malone and Metropolitan Police.

Speaker 1:

Commissioner, this is an interesting case because this is where, for example, you have a situation where something wasn't the law before and then subsequently we get the law obviously being made. But interesting case in that Mr Malone's telephone calls were intercepted by the police A nice posh name for saying he was being bugged, basically. So his telephone calls were being listened in on by the police and it allowed them to get certain evidence that they wouldn't otherwise have gained in respect of criminality on Mr Malone's part. Now here's the thing there was absolutely no legislation in the UK governing this practice of bugging people's telephones, so the police had not committed any offence. But the question for you to consider, or the point for you to consider, is when you look at the police, and certainly who the police are.

Speaker 1:

The police is no more than an extension of the government, because when you look at the government in its broad definition, it takes account of the civil service, the police and the like. It takes account of the civil service, the police and the like In its narrow sense. It looks at the cabinet and the prime minister, but what we're seeing here is the state. If you were to use the police, you're looking at the government doing this? Should they be allowed to get away with it? Well, when you look at Malone, the practice, no police had not committed any offence and of course that was put in. Now this shows that rights can be breached when there is no law as well as when there is bad law.

Speaker 1:

Now the same case went to the European Court of Human Rights, and so you will see it as Malone and the UK. European Court of Human Rights, and so you will see it as Malone and the UK, and they said that the UK had violated Article 8 of the European Convention on Human Rights, which is, of course, the right to privacy. Based on that, the UK, of course, subsequently enacted the Interception of Communications Act in 1985. And the case, of course, that you will have been familiar with, because we would have touched on in an earlier lecture, is, of course, m and the Home Office. And in M, the Department of the Home Office was held to be in contempt of court for violating a direct court order, if you remember, by saying that they weren't going to wait for Mr M's hearing to be completed. And of course, we see the court saying no, even though you're looking at the Home Office, which is exercising rights given to the Crown. They are not above the law, so the rule of law appeared to prevail.

Speaker 1:

In the case of R&R, which we have also touched on earlier, what we had was a marital rape scenario where husband was convicted for raping his wife. Now, the offense did not previously exist under English law, as husbands were said to be immune from raping their wives as the act of marriage meant that the woman had given her consent to intercourse throughout the marriage consent to intercourse throughout the marriage. Now, it's interesting because the decision was upheld when it was taken to the European Court of Human Rights on the basis of a violation of Article 7. And the point seemed to have been that such a position is untenable in contemporary society. Now it is very important for you to read and understand the case and to come to your own conclusions based on logical arguments. Do not do it from a passionate, but rather a dispassionate standpoint, because the point is not. Well you know, a woman says no, it is no. That may be an issue as well, but the point I want you to look at from a legal standpoint is you as well. But the point I want you to look at from a legal standpoint is, if this wasn't the law, was it right that he ought to have been held to have broken the law when legally there was no such offense? Is it that you get the courts pandering to a public opinion as opposed to doing what is right, as it were, and ensuring that the rule of law is carried out? Now, if you consider the idea of this immunity, then you may consider that the courts came to the right decision, but equally, as I said, it may very well be that you could argue that the rule of law was violated Because, frankly, when you look at the 1956 Act, then there's an argument that it ought not to have been decided the way it did. As I say, it is an interesting case and one that you should certainly look at.

Speaker 1:

Now, what are the threats to the rule of law? Well, it appears to be a paradox that the very principle that Professor Dicey felt was fundamental to the constitution, along with the rule of law, which is parliamentary sovereignty, is also one of the main threats of the rule of law, which is parliamentary sovereignty, is also one of the main threats of the rule of law, because Parliament's authority is founded in the fact that they are elected by the people and their actions are expressed as the will of the people. So the concept of parliamentary sovereignty is really justified to the concept of the sovereignty of the people in Parliament. Now, parliament has the right to make or unmake any law. They can reverse the decisions of the judiciary or enact retrospective legislation. They have the greatest ability to wield arbitrary power against the people, which can be a breach of the rule of law. Now, if this power is not used reasonably, it can of course, lead to a breach, and again I would draw your attention to Burma oil and load advocates, which we raised earlier.

Speaker 1:

Now, one of the other threats to the rule of law is the principle of non-justiciability. Now, this refers to principles that are regarded as matters of high policy and should be left to the executive. So when you look at national security, for example, which was raised in the GCHQ case, we see that the court said that such a matter was non-justiciable because it was of high policy. Non-justiciability would appear that, together with parliamentary sovereignty, to be the two greatest threats to the rule of law, precisely because of their effect. Now, I'll leave you to digest that. And that brings us to the end of this rule of law lecture. And certainly. I would ask you to join me for the next lecture in this series of the public law law sessions.