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.
[...] Napoleon's legislation and policy reflected the concepts of royal prerogative of the ancien régime which translated as strong government, Napoleon firmly believed in the least interference by the courts with the actions of government or legislation—the epitomy of the strict separation of powers which exists in French law. The UK does not have a strict separation of powers, and it seen as the judiciary's function, under the rule of law, to keep a check on executive power—something which would be unheard of in France. [...]
[...] The actions of Parliament and the Government were perfectly legal, Parliamentary supremacy provides that Parliament can legislate on any subject matter and that no court can question an Act of Parliament, but this completely flies in the face of the rule of law. In Liyanage v The Queen, which also concerned retrospective legislation, it was held that Acts could not be challenged on the grounds that they were contrary to the fundamental principles of justice. This leads us to the principle of natural justice. [...]
[...] So, to conclude, Dicey's view is still valid, as it simply encompasses key legal principles which have been inherent in the English Constitution for centuries and cannot be detracted from. However, in recent years Dicey's view of the rule of law has been diminished which has had a huge effect on, and indeed does provide a measure against which we can judge the attitudes and actions of Parliament, Government and the courts. The argument over the rule of law appears to centre on safeguards on the abuse of power, so where does this leave us? [...]
[...] Under the doctrine of Parliamentary supremacy, Parliament can legislate on any subject matter, this renders the rule of law as of no effect at all—if Parliament wishes to legislate contrary to the rule of law it can, and has done, in the War Damage Act 1965, and the courts cannot question this as they defer to, and accept, this supremacy. The Government is supposed to be accountable to Parliament, but in reality, due to our electoral system, the Government controls the House of Commons and, as they need a majority to remain in power, their legislation, which can under the auspices of Parliamentary supremacy make any provision, will generally always pass. [...]
[...] The first problem here is that the UK does not have a strict separation of powers, this should not matter due to “checks and balances” but a second problem then arises—if the Government is accountable to the Courts, why do the Government frequently criticize the judiciary as going beyond their remit?—this gives rise to a perceived ‘clash' between the executive and the judiciary. Another problem is that, due to Parliamentary Supremacy, Parliament can enact legislation granting the Government, in theory, any power it wishes. [...]
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