Principle and Effectiveness of the Concept Rule of Law in the UK - Essay Example

Principles and Effectiveness of the Rule of Law in UK A Paper Submitted to In Partial Fulfilment Of the Requirements for the Course (Course) By (Name of Student) (Date) Principles and Effectiveness of the Rule of Law in UK Introduction The rule of law is an unwritten principle used in referring to elementary values underlying the UK constitution1. Dicey observed that the rule of law is about preeminence of law above the preeminence of individual will as it is about the structural implementation of rules rather than the imposition of the will of legislators or those in authorities2. The Rule of Law calls for every person to be subject to similar legal standards, and that the law ought to deliver justice without punishing those whose deeds are guiltless or warranted. The principle behind the rule of law is that there ought to be sureness in law, such that every person can regulate his or her own dealings accordingly. Even though in UK, it is often argued that it seeks to prevent any arbitrary law making by governing officials or inferior courts, critics argues that it is a complex mixture of principles and sub-principles, with the major contention being on what extent the law allows discretionary powers to be applied. Nevertheless, individual liberties extremely depend on the rule of law, such that its effectiveness hinges on the undertaking of trials through jury or the lack of prejudice from judges. Critics also observe that the success of the rule of law principles hinges more so on its prerogative orders, such that it offers the executive the opportunity to rewrite the principles, in order to attain supposed exigencies of a given political situation as recently. Thus, the aim of this paper is to discuss the principle and effectiveness of the concept Rule of Law in the UK. Discussion Principles The core aspect of the rule of law is the dominance of the law rather than power, such that every person including those in authorities are subject to the law3. It entails making the laws through processes that are open, apparent, and sincerely conducted. Such views are based on the separation of power in UK whereby focus is shifted on administrative law under delegated legislation4. Secondly, the UK rule of law is about limiting any exercise of discretionary authority whereby laws are founded on standards with significance given to procedures such that it only allows the implementation of Parliament legislative powers while limiting implementation of legislative authority by the executive. Therefore, legislations are prospective instead of retrospective with an underlying moral foundation for every law. Focus is on having rules and procedures, which can make certain that laws are applied in safeguarding rights instead of being avenues of legitimising exercise of powers. Thirdly, the UK notion of justice is based on interpersonal adjudication and judicial precedent, as the rule of law is not about individuals having to account to arbitrary pronouncements made by governmental officials, but it is about individuals guiding public officials actions by referring to what is barred by plainly defined laws. Hence, decisions made by those in authority or any other public official are exercised based on the powers that have been reasonably conferred to them, and in good faith. In particular, it calls for the government to offer adjudicative procedures, which are fair, and that avenue that have no prohibitive expenses or filled with inordinate delays are offered in resolving disputes5. Effectiveness The effectiveness of the rule of law has been achieved in UK is because freedom is about accounting only to well-defined and earlier developed laws instead of answering to arbitrary or discretionary proclamation of those in administrative powers. Notably, the separation of powers principle is the one that safeguards the principles, since it calls for admission to courts and those in authority to observe intentions judicial review. As such, disputes are settled based on the law and not the individual judge’s moral viewpoint or political views. Dicey stated that the rule of law entails being ruled under absolute supremacy rather than being influenced by some form of arbitrary authority. It is whereby no person can be punished or whose activities cannot be lawfully constrained by the authorities except in case where such actions violate the law. In effect, every government action needs to be authorized by law6. However, Dicey assertion that the rule of law is a principle by reference towards which the UK Constitution ought to be judged seems to be ignored by modern executive authorities. This is because Dicey only factors the conditions that existed during the beginning of the laissez-faire atmosphere by addressing individual rights and not including the relationship of such rights with the influence of the administration. Notably, the current UK welfare state is based on delegated legislation with the judiciary exercising its functions through an increased number of administrative bodies. Dicey assertion fails to address the administration by itself since his views does not consider the current scenario whereby there has to be a differentiation between public officials discretionary authority through statutes on one hand, and arbitrary discretion authority possessed by the authorities. Presently, the effectiveness of the rule of law in UK is often undermined by the fact that individuals are now more answerable to numerous arbitrary and often unclear decrees from politicians and administrative bureaucrats instead of just answering to plainly defined laws7. Even though the principles that define the rule of law enables the delivery of judgments with exceptional lucidity, the cost when such principles are violated can easily make the framework by itself to cave in. This is evident in the case of Counsel of Civil Service Unions v Minister for the Civil Service whereby the House ruled that the executive instead of the judiciary should make decisions that entail balancing between national security and obligations necessitated by natural justice8. The house argued that the executive possess pertinent and sensitive information unlike the judicial process, and this goes against the rule of law calls for avoiding exceptions or qualification and that any derogation should be based on close consideration and clear justification. This decision then revealed that UK rule of law permission to recourse in judicial review is difficult when a national security decision does not expose patently ludicrous or completely unreasonable basis. Such an affirmation contradicts Lord Bingham view regarding delivery of justice under the rule of Law. Bingham argues that the core principle of the rule of law is that every individual and authorities no matter what his or her duties are public or classified, should be bounded by or entitled to the advantage of the law openly, and publicly overseen in UK courts9. The existing rule of law is open to ideological abuse as it offers room for extensive discrepancies in understanding as it presumes that everyone is for good even though with contrasting convictions about the meaning of good. Since it rather allows the issuance of shorthand account of the positive facets of a political arrangement, some argue that international law obligations on Human rights should be central in ensuring its effectiveness. This includes non-negotiable rights of human dignity, limitations on state powers, free speech, similar justice structures, in addition to religious tolerance10. Notably, Lord Bingham asserts that the length, complication and wordiness of current UK common law judgments raise serious concerns about uniformity of laws11. Particularly, most judgments are not offered as a single opinion, and this has generated systematic problems of interpretation especially due to diverse opinions coming from the House. The often lack of a lucid majority in judgment delivery makes it hard for people to discern what the law defines until the UK Parliament or another future case comes up with clear rule. Moreover, the existing sub rules provide judges with maximum novelty and explorations, such that the room for judicial activism is very open to undermine the rule of law. This is made worse by the massive enactment of criminal legislations that are making it hard for UK judges to operate under an assimilated legislative framework. Consequently, this leaves room for judges to generate laws that form new offences and even extend existing offences such that there is currently more punishable demeanour of a category and which are not presently subject to reprimand12. This then leaves room for people to be criminally punished for deeds that are not restricted as criminal. This lack of a narrow definition and exercising of discretion was evident in the case of Anufrijeva, R v. Home secretary, whereby the House was presented with a difficulty of whether removal of income aid through an internal note filed from the department prior to notification of the resolution was legal. The House by stating that such an un-communicated decision-making process does not possess legal effect; revealed that the rule of law takes on a more general term than what is expected in any rights-founded democracy. The rule of law by itself does not guarantee human rights but there needs to be a bill of rights since the general attitude of the constitution are not always an outcome of judicial decisions which then determines the rights of every private individual. The rule of law to be the state whereby no person is above the law regardless of status and that every person is subject to common laws. The meaning of rule of law comprises a collection of desirable values, which goes beyond the parched requirements of a wider discretionary authority or legal certainty, even if such values are undefined. However, the decision enforced the underlying principle of the rule of law that individuals called to answer edict of an administrative authority should be in a position to dispute such edicts in the courts if they wish to do so13. Conversely, Raz observed that the effectiveness of the rule of law could be undermined by loosely stated discretion conferred to authorities and judges, such that it creates a wider subjectivity possibility and subsequent arbitrariness14. Raz observed that the validity of rule of law hinges on a given circumstances within a particular society in order to guide individual’s behaviour while reducing the danger which results from implementing of discretionary authority in arbitrary manner. Raz believed that the judgment of officials should not be to misrepresent the law. However, Raz belief is currently in doubt considering the the current environment UK faces whereby terrorism as a new crime calls for enforcement officials to exercise discretion and misrepresent the law by allowing detention of terror suspects without trial. Instead, present practices by the government go against the rule of law principle of a constitutional state to allow individuals to be accorded the right to discern its decision in court before their rights can be negatively affected. Currently, the rule of law is simply based on political principles in which the legal framework may lack or possess to a more significant or minor level, and as a result, some foreign policy actions of the UK government reveals that it has not strictly adhere to both internal and legal obligations. Degradation of rule of law is presently justified by the assertions that extraordinary measures calls for extraordinary rules. This is evident by the behavior of some previous UK governments of creating inaccurate dossiers in order to judgments regarding going to war or to create connivance with some actions and measure of the US government, especially the war on terror detentions without trials and rendition of terror suspects. Such actions do not just disregard International and European Human rights principles, but go against the rule of law call for the parliamentary system to limit the executive exercise of powers. Hence, there have been more instances of government exercise of its discretion, and which reveal a lack of consideration for appropriate decision-making processes such as invasion of the Suez and Iraq war. In addition, current UK immigration disputes are witnessing a trend whereby judges habitually invite the authorities in such cases the Secretary of State to apply his or her own discretion in issuing applicants with leave to enter the country or be locked out even though they have not attained the tests for entry as formulated under immigration rules. Instead, the applicant’s personal history and sympathy due to the circumstances they face are the ones that determine entry consideration15. Even though Raz called for clear regulations and procedures for making laws which are not just constant but that they are not altered too frequently, current frameworks used in UK has seen thousands of legislative pieces being passed, hence creating some misunderstandings of the law 16. This then has undermined the equal subjection of every division in ordinary law as called for in the rule of law, and which is something that has created a false antagonism between the ordinary law and the special law. This is evident in the case of Liversidge v Anderson whereby the House of Lords asserted that courts cannot review the administrative power conviction that arrest without a warrant is justified17. This then shows that the effectiveness of Raz procedurally oriented description of rule of law can only be ascertained when authorities behaviour are guided in order to decrease the risk that could arise from the use of discretionary authority in an arbitrary manner. Fuller on the other hand considered that the rule of law can be effective, if individuals and authorities do not just obey laws, but that authorities actions are consistent with declared rules18. Fuller called for written laws to have reasonable clarity in order to avoid unfair enforcement. However, present UK intergovernmental and even parliamentary procedures in examining bills especially immigration, crime and terrorism draft bills have not been consistently effective in deterring passing of legislations that are in variance with fundamental values. In that regard, Lord Bingham observes that the ineffectiveness of the rule of law is evident by the majority of UK laws that are clear of contradictions, since they are prospective19. Conclusion This paper observes that the effectiveness of the rule of law in UK is based on its ability to thwart the notion of entitlement in the exercise of decrees by authorities. In particular, it places more weight on structured responsibilities and commitment rather than domination of power. The effectiveness of the rule of law in UK is largely evident in courts ability to exercise their g judicial review when it comes to determining the manner in which government edicts are exercised. However, parliamentary craftsmanship and the executive undermining of judicial authority are increasingly undermining this effectiveness. In particular, new legislations meant at fighting crimes, terrorism, and immigration concerns are undermining the ability of judicial review in protecting the rule of law from the legislative and executive action. Moreover, it is hard for the rule of law principles to overcome any express enactments by the UK Parliament, since it does not envelop every aspect of rights-founded democracy. In that regard, the paper argues that the effectiveness of the rule of law will be evident if it is applied based on laid down procedures regardless of whether the sub-rules are founded on statutes or the judicial opinions. In order to eliminate the current confusions in determining exactly what the law is due to diversity of opinions, there needs to be a well-comprised committee with different expertise regarding the rule of law and jurisdictional experience. This will then help to shape laws rather than the current council judgments from the House. It is important to consider that no norm will be well thought-out as law except when it is crafted with adequate precision, and ensure that individuals and authorities can regulate their conduct. Legal rights including liability ought to be resolved through exercising of the law rather than application of discretion. Considering that discretion presents double possibilities and choices, the extent for choices should be very restricted. Therefore, discretions should be closely defined so that its exercise is based on reasoned justification. Bibliography Bingham, Tom. "The Case Of Liversidge V. Anderson: The Rule Of Law Amid The Clash Of Arms." The International Lawyer 43, No. 1 (2009): 33-38. Bingham, Tom. The Rule Of Law. London: Penguin, 2011. Meyerson, Denise. "The Rule Of Law And The Separation Of Powers." Macquarie Law Journal 4 (2004): 1-6. Murphy, Colleen. "Lon Fuller And The Moral Value Of The Rule Of Law1." Law And Philosophy 24 (2005): 239–262. Ringer, Thom. "Development, Reform, And The Rule Of Law:Some Prescriptions For A Common Understanding Of The “Rule Of Law” And Its Place In Development Theory And Practice." Yale Human Rights And Development Law Journal 10, No. 1 (2007): 178-208. Smith, Roger. The Future Of The Rule Of Law. London: Justice, 2007. Read More