A.V.
DICEY- THE CRITICISMS
Jennings’s in the Law and the Constitution
1. Criticised Dicey’s assumption that the rule of law was inconsistent to the use of discretionary
powers by the executive.
Limited parliamentary time, have led to great increase in the use of delegated or secondary
legislation. This legal framework is important in setting the ground rules for business and
industry.
Also fulfills other social purposes such as environmental protection.
2. Dicey’s second point ignored the specific responsibilities public officials held by virtue of their
roles.
3. He ignored the special immunities certain categories of individuals have (i.e.) children, foreign
diplomats, etc.
4. Dicey’s third point completely ignored the role of statute in the constitution.
1st POSTULATE
1. Bail Act 1976- an unconvicted but accused person can be remanded in custody prior to his
criminal trial.
This goes on to imply that a person, whose conduct has not been proven to breach the law is
held to suffer in body.
There are of course sound public policy reasons for the authorization of the detention of such an
individual- the court is convinced that the defendant is at risk of absconding, tempering with
witness, evidence or the jury.
2. Section 1 PACE Act 1984- authorizes a police officer to stop and search a person or vehicle for
stolen or prohibited articles, provided the officer has reasonable grounds for suspecting that he
will find such articles.
3. Section 23 ATCSA 2001- indefinite detention of non-UK nationals suspected international
terrorists without charge or trial
A and Others v. Secretary of State for the Home Department (2004) UKHL- A breach of Art. 5,
Art.8 and Art. 14 of ECHR.
4. Inland Revenue Commissioners and Another v. Rossminster Ltd and Others (1980) - Section
20C Taxes Management Act 1970 stated that a judicial authority could issue a warrant
authorizing Inland Revenue officers to enter and search premises if satisfied that ‘there is
reasonable ground for suspecting that an offence involving any form of fraud in connection with,
or in relation to, tax has been committed and that evidence of it is to be found on premises
specified in the information’.
COA: Granted the declaration. Lord Denning MR commented that ‘the trouble is that the
legislation is drawn so widely that in some hands it might be an instrument of oppression’.
He further noted that an offence involving fraud in relation to tax could include a number of
different kinds of offences and so in pursuance to the traditional role of the courts to protect
the liberty of the individual, the warrant must particularise the specific offence.
HOL reversed the decision of the COA. Lord Scarman- the warrants were lawful as they were
strictly issued in accordance with the legal authority of S.20C.
2ND POSTULATE
Parliamentarians- Bill of Rights 1689
The freedom of speech, debates or proceedings in Parliament ought not to be questioned in
court. This is to ensure they can exercise their functions without fear of litigation.
Monarch- enjoy legal immunity from criminal liability- Sec 20 State Immunity Act 1978.
Crown Proceedings Act 1947- can be sued in private law.
Diplomats- Diplomatic Privileges Act 1964
Judges-cannot be liable for anything said while carrying out their judicial function.
Anderson v. Gorries (1895)
Courts Act 2003
Judicial Review- In the last few decades it is arguable that the UK has developed a separate form
of administrative law which in many ways is akin to the French [Link] various requirements
and limitations of JR.
3RD POSTULATE
Human Rights Act 1998
Equal Pay ACT 2010
Gender Recognition Act 2011
Marriage (Same Sex) Act 2013
Consumer Rights Act 2015
All the above legislations were passed by parliament to protect the rights of the people in its ever-
changing society. Therefore it would be inaccurate to say that individual rights are determined and
protected by the courts.