Chapter 3 Outline answers to essay questions

Essay answer 1

Dicey's definition

In this part of your answer you should present Dicey's definition. AV Dicey in Introduction to the Study of the Law of the Constitution (1885) defined the generally accepted legal theory of the rule of law. His definition is in three parts.

Law and arbitrary power or prerogative

Dicey says that regular law predominates instead of arbitrary power or prerogative. You must consider:
What Dicey meant by 'regular law' - rules enforceable by the courts.
What Dicey meant by 'arbitrary power' and 'prerogative'.
What is meant by 'wide discretionary power'.

Equality

Here, you need to emphasise that the government itself is subject to law and that everyone, irrespective of rank, whether official or individual, shall be subject to the law, and subject to the same courts.

The constitution

Here it should be emphasized that constitutional law comes from common law and statute. There is no special constitutional code. Any disputes between the Crown and the Citizen are resolved by the courts.

Essay answer 2

This question requires you to look at how the rule of law applies today and to what extent.

Define the rule of law

Here you should briefly explain Dicey's definition.

To what extent is wide discretionary power allowed today?

In this part of your answer you should discuss the policy of the courts concerning wide discretion.

Case for Dicey: government according to law

Consider the following in support of Dicey:

Entick v Carrington (1765) - action for trespass
Wolfe Tone (1798) - habeas corpus Judicial accountability of public authorities:
Stroud v Bradbury [1952]
Congreve v Home Office [1976]
M v Home Office [1993]
R v Secretary of State for the Home Department ex p the Firebrigades' Union
[1995] per Lord Mustill (dissenting).

The case for saying that the rule of law is less significant today

In times of war, the courts are more likely to allow wide discretion to go unchallenged:
Liversidge v Anderson [1942].

This also appears to be the case in times of emergency:
• s 21(1) Anti-terrorism, Crime and Security Act 2001
Secretary of State for the Home Department v Rehman [2001]

Can criminal law be extended by the courts

Consider Shaw v DPP [1962].

Stage 3 - To what extent is the equal subjection to the law

Consider privilege, immunities, and special powers.