The rule of law is the absolute doctrine of justice which encapsulates the UK's uncodified constitution. It limits the powers of the government and of the Crown in order to ensure that the nation's rights and liberties are respected therefore avoiding an arbitrary form of government in the country. The UK's constitution is set in such a manner that it requires institutions, government officials and courts to abide by the general rule of law in everything they do and every decision they make. The eminent British constitutional law theorist Sir Albert Venn Dicey was the first to discuss the concept of the rule of law, its importance and its meaning in the context of the British government. In his book Introduction to the Study of Law of the Constitution, he set three fundamental principles on the rule of law. These are a man can only be punished if found guilty, of a breach of law at a trial, before an ordinary court of the land nobody is above the law, as he states every official from the Prime Minister down to a constable or collector of taxes is under the same responsibility for every act done without legal justification, as any other citizen and the constitution is the product of the ordinary law of the land.
This asserts that while in some written constitutions the rights freedoms and responsibilities of individuals are set and guaranteed under the codes of those respective constitutions in the UK these rights are set by means of public law which have made the constitution receptive and malleable to the past and current needs requirements and values of the British nationals. To this day the British Constitution has been subject to the constant change in conformity with events of public concern. Due to its uncodified nature, it can easier be amended and Bills can be enacted without the need for a referendum through the concept of popular sovereignty or other special procedures e.g supermajorities in the legislature as most written constitutions require conversely. Parliament in the UK is the supreme law-making body fully entrusted by the electorate with the enactment of Bills and amendment of current laws, as well as with delegating the power of making secondary legislation to government bodies and the judiciary. Common law plays a very important part in new secondary legislation and fair delivery of justice through the doctrine of judicial precedent where judges make sure to apply the law equally toward all present cases by applying and distinguishing set in previous cases to ensure consistency.
If the present case is unique and no common law principle applies to it the judiciary will be required to set a new principle so as to make fair judgments and decisions upon it, though this can be amended or repealed by the Parliament at any given time should they desire to do so. It is certain that Dicey’s three principles on the rule of law are very profusely followed nowadays. However, other formal scholars of the rule of law such as Fuller in his book. The Morality of Law 1969 and Joseph Raz, in The Rule of Law and its Virtue 1997 have asserted some additional principles of the rule of law such as the law must be certain and non-retrospective, there must be fair hearing by an independent judiciary laws should be relatively stable the courts should be easily accessible, the courts should have review powers and the principles of natural justice must be observed. The main difference between the formal and the substantive schools of thought is regarding the provisions of the current law in place. Dicey’s three principles reflect a formal rather than a substantive approach. While he is strongly in favor of basic human rights principles similar to those established centuries before by Magna Carta and the Bill of Rights he is setting some legal rules that are concerned with a uniform administration of the law, rather than what specifically the current law portrays. His argument was that the preservation of rights of the individuals in the state through Bills of Rights was meaningless since such constitutional provisions can easily be amended or revoked.
The thin theories define the rule of law as a mechanism of government manifestations which everyone is bound by. The laws governing a state might be morally wrong oppressive or in detriment of certain individuals or communities and still excel at following the rule of law, as the thin theories suggest for instance slavery can still follow the rule of law in a state whose laws have not made it unlawful. Professor Joseph Raz has asserted this. However, he believes that whether or not the content of the law is positive and moral it should not be discussed in theories on the rule of law but that it should be left to the politics to discuss and decide accordingly. The thin school of thought, particularly Raz’s theories, consider that the rule of law should require laws to be made in such a way as to allow individuals to plan their lives. His theories suggest that the law must be certain and non-retrospective there must be fair hearing by impartial judiciary laws should be relatively stable and courts should be fairly accessible. The substantive theory of the rule of law is however mostly focused on the morality of the law. Dworkin, for example, supports the idea that courts should give judgments in conformity with the morally fittest theory of justice. He also believes that the government should only exercise power against individuals according to predetermined rules made known to the public, so they can be clear as to what to abide by. Dworkin also believes that individuals in a democratic state should have moral rights towards each other and also political rights against the state.
He supports the idea that these rights should be recognized and considered specifically according to each individual’s request in courts. The values underpinned from this theory have given rise to the question of the rights of a plaintiff before the court based on the facts and issues raised in their particular case. The common law is the evidence that these formal school principles of the rule of law must be followed closely and respected. In regards to equality before the law, the case of R v Mullen is a very good example that the government has to always abide by the laws of the land and by international laws even when the suspect may be guilty of the alleged crime. The courts have the responsibility to scrutinize their actions through judicial review to make sure they always fall under the rule of law. Mullen was a British citizen who was unlawfully brought back to England from Zimbabwe after the evidence acquired by both British and Zimbabwean security services suggested that he had planned to cause explosions that would be highly dangerous to public safety.
During his deportation and detention, he was denied access to a lawyer and was convicted to thirty years in prison. Some years later while he himself admitted that he was subject to a fair trial and was convicted accordingly he appealed against the unlawful deportation and the denial of his right to access a lawyer through the meaning of s 2.1 a of the Criminal Appeal Act 1968, as substituted by s 2 of the Criminal Appeal Act 1995. The court of Appeal held that while he was certainly guilty of the allegations according to the evidence brought against him before the court, the authorities had breached both Zimbabwean and international extradition law but also some of Mullen’s fundamental human rights. The court’s decision stated It follows that in the highly unusual circumstances of this case notwithstanding that there is no criticism of the trial judge or jury and no challenge to the propriety of the outcome of the trial itself, this appeal must be allowed and the appellant’s conviction quashed. This case emphasizes that the scope does not justify the means and that every individual and authoritative body is equally accountable for their own unlawful acts.
Cases such as R v Rimmington emphasize that law cannot be retrospective or ambiguous. R and G the appellants appealed against an earlier decision of the court that dismissed their appeal against their convictions for causing a public nuisance. R had posted packages to different members of the public containing racist matters to different members of the public. G had posted an envelope to a friend containing salt as a practical joke. The envelope has never reached his friend but got damaged and leaked salt onto a post worker’s hands. The post worker panicked believing it was anthrax and raised the alarm and called the police, therefore, causing disorder in the post office. The appellants submitted that conduct which formerly established liability for the crime of public nuisance had now become the subject of express statutory provision, that is where Parliament delineated specifically in the statute the components of the offense, the type of trial required possible defenses and a maximum penalty for it therefore under proper practice of justice the defendants must now be tried and prosecuted according to the statute. There were at that time eleven Acts which included provisions for the statutory nuisance of different types of environmental pollution, terrorism, noise, pollution, vehicle speed exceeding, etc. However, none of these were certainly relevant to the present case. The appellants concluded that the crime of public nuisance had no legal existence and has also ceased to have any practical application. Article 7.1 of the European Convention of Human Rights states that No one shall be held guilty of any criminal offense on account of any act or omission which did not constitute a criminal offense under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offense was committed. Even according to common law R’s conduct did not have the essential component of public nuisance as he did not cause a common injury or disturbance to a certain community, but rather to separate individuals on separate occasions. R’s conviction was quashed. In the case of G it was not proved that it was reasonably foreseeable for the envelope to get damaged and the content of it to leak on to the post worker’s hand so his conviction was quashed.
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