Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816 - Essay Example

?WILSON V FIRST COUNTY TRUST LTD (NO 2) [2004 AC 816 of Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816 In modern days, the rule of law is a critical part of administrative law and is one of the most important principles that regulate common law countries. Most contemporary constitutional democracy across the world is founded on the rule of law which is the cornerstone of governance in any democratic country (Pollard, Parpworth and Hughes, 2007, p. 8). Cane (2011, p. 15) explains that as a legal maxim, the rule of law implies that decisions made by the government should be based on the existing legal principles; it insists that law should govern the society. The proponents of the rule of law argue that it is the foundation of society’s order and freedom since it treats all citizens as equals and therefore none is above the law, not even the rulers. In broader terms, the rule of law implies that the state should subject its citizenry to the laws that were publicly promulgated, no one within a given state should be above the law, and legislative function and the adjudicative functions of the state should be separate from each other. These terms are essential in ensuring that the rule of law is adhered to, fundamental rights of the citizenry are protected, and the powers of the government are limited. Pollard, Parpworth and Hughes (2007, p. 11) argue that contemporary constitutional democracy could be impossible in the absence of the rule of law. However, in some cases democracy and the rule of law are not in harmony. It is against the background of the rule of law that this discussion will focus on it and its main features with specific reference to Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816. An English Law Commentary on this case will attempt to bring the concept of rule of law and its main features into focus with the aim of enhancing understanding of the concept. Since the time the phrase “rule of law” was coined, there has been divergence of understandings with people giving varying explanations of what the phrase really is and what it fundamentally implies. Ranjan (2011, p. 22) notes that there are two divergent views regarding the phrase, majorly. The first one is that it goes beyond legal framework and includes substantive rights that are derived from, or based on the rule of law. The second view is that the rule of law does not focus on how just the law is but rather defines certain procedural characteristics that an existing legal framework should have so as to comply with the rule of law (Ranjan, 2011, p. 23). The divergence of understandings notwithstanding, there are key aspects of the rule of law that are agreed upon by the majority of people and entities; it is agreeable that rule of law is a governance principle in which all entities, persons, and institutions, whether private or public are accountable to publicly promulgated laws which are in conformity with international human rights standards, independently adjudicated, and enforced equally. In addition, it is agreeable that under the rule of law everyone is equal before the law, there is separation of powers, there is legal certainty, supremacy of law principles are adhered to, there is participation in decision- making, legal and procedural transparency principle is adhered to (Cane, 2011, p. 16). The aspects of the rule of law described above are in general terms and only give the general features of the concept. So, what are the main features of the rule of law? As has been noted, people have different interpretations about the concept of rule of law (Ranjan, 2011, p. 29). However, this does not mean that the fundamental features of the concept has been lost; actually, these different interpretations are derived from the main features of the concept. In modern times, the concept of the rule of law and its features was propounded by a British Philosopher and Jurist, Albert Dicey, and that is why it is not uncommon to find rule of law features being referred as “Dicey”. Albert Dicey stressed three main features of the rule of law namely: equality before the law; limiting the power of the government and government officials in the interest of predictability and certainty; and, Law should back sanctions and courts are meant to be the ultimate body with guaranteed independence (Pollard, Parpworth and Hughes, 2007, p. 33-34). In regard to equality before the law, the rule of law postulates that the each individual is subject to similar law of a given society and that no one is above the law. Therefore, the rule of law demands that everyone should be treated the same before the law and should be guaranteed equal protection by the law without discrimination. Cane (2011, p. 41) argues that apart from seeking to guarantee legal equality for the citizenry, this feature usually seek to protect the interests of the minority groups who may be in the danger of discrimination in the society. It does this by ensuring that the same law applies to everybody regardless of their socio- economic status, religion, ethnicity, and gender among other dimensions of discrimination. As had been noted earlier, the rule of law mostly exists in constitutional democracy where equality is one of the main core principles. It is important to point out that the rule of law focuses on equality before the law (legal equality) and put less focus on socio-economic equality which may be untenable because of many factors such as personal abilities and talents (Pollard, Parpworth and Hughes, 2007, p. 27). By calling for legal equality, the rule of law seeks to advance the legal rights of individuals rather than collective rights based on the assumption that upholding of individual rights will ultimately lead to collective rights. Moreover, the rule of law calls for limiting the power of the government and government officials in the interest of predictability and certainty. This feature is also known as separation of power. As already mentioned, rule of law is a principle of governance; as such, it plays a vital role in any state governance with the intention of ensuring that decisions of the government are based on legal principles. As a feature of the rule of law, separation of power ensures that the legislature, the executive, and the judiciary have limited and separate powers even though they may have to interdependent on each other. Ranjan (2011, p. 60) explains that the logic behind this principle is to ensure that no state organ or person enjoys unrestricted power which can be detrimental to governance and democracy. It should be noted that absolute separation of power can hardly be achieved and the principle only serves to limit the extent to which state organs can use power. Besides, this principal aim at facilitating delegation of power so as to give legitimacy and authority to law; separation of power ensures that accountability is observed by each branch of government and matters appear to be decided according to existing principles. The final main feature of the rule of law as stipulated by Albert Dicey is that law should back sanctions and courts are meant to be the ultimate body with guaranteed independence. This feature emphasizes on the independence of courts so as to ensure that justice is dispensed “justly” at all time and to everyone regardless of their status (Pollard, Parpworth and Hughes, 2007, p. 35). Courts should be independent from external interference and influence which may compromise justice. The rule of law emphasizes on independence of the courts because courts are the ultimate body where people, entities, and institutions seek remedy against illegal acts. Besides, the procedure for seeking justice should be appropriate and transparent. Also, the legal system should guarantee predictability and certainty which is key ingredient in administration of justice. Furthermore, the supremacy of the law should be emphasized and the application of the law should be fair. Cane (2011, p. 66) argues that the rule of law requires that all sanctions should be backed by law which is independently adjudicated and equally enforced. Even though countries exist individually and are sovereign, they are individual units in international system. It is against this background that the rule of law requires that state laws should be in conformity with international human rights standards and norms. From the preceding discussion, it is clearly evident that the rule of law plays critical role in constitution democracy by providing guiding principles on governance. However, there are factors that greatly undermine the rule of law hence making it not achieve its objectives. The first factor that undermines the rule of law is dilution of independence of the judiciary. As had been noted, the key feature of the rule of law is independence of courts that ensures that justice is achieved and equality before law principle upheld. However, this feature is usually compromised through weak legislations that diminish the powers of courts hence diluting their independence (Pollard, Parpworth and Hughes, 2007, p. 43). Also, political interference and corruption within the justice system usually compromises its independence hence undermining the rule of law. The second factor that may undermine the rule of law is insufficient financial and administrative capacities. In some cases, the management approach applied in the rule of law leads to the drifting from compliance to the existing rules and laws rather than inclining towards compliance and adherence to these rules and laws. Also, the financial resources allocated to the implementation of the rule of law are inadequate thus limiting its full application. Along with that, Cane (2011, p. 75) states, informal institutions are another factor that undermines the rule of law as they create constraints and incentives outside the formal area. As a result, formal institutions become weak thus establishing uncertainty as certain people seek to protect themselves by allowing legal loopholes. Additionally, informal institutions apply to a group of powerful actors rather than the whole population thus defeating the main objective of the rule of law; to apply to all people in a given society. What’s more, enforcing rule of law in an informal setting often proves difficult thereby undermining the rule of law which seeks to enforce law equally and appropriately. Lastly, corruption has been cited as a factor that undermines the rule of law as it has negative impacts on the political and judicial institutions that needs to uphold the rule of law. Corruption results to private gains rather than public gain. As a result the rule of law is disregarded as private entities and persons pursue private gains (Pollard, Parpworth and Hughes, 2007, p. 50). Having discussed the main features of the rule of law, and assessing the factors that may undermine the rule of law, it is important to relate the principle to a case in order to get better understanding on the principle. The case to be considered is; Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816. Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816 is a case that relates to consumer protection, contract law, and human rights law in the United Kingdom.1 In this case, the court was to decide whether the means that had been employed by the statute to achieve the objective of the policy was appropriate. The case involved a “value judgement” by the court and making of references to the prevailing circumstances at that time (Mason, 2006). Value judgement means that facts have to speak for themselves but it is important that the background information be sought and added so as to show the probable practical effect of the statute. The court may also seek to enlighten the extent and nature of the social problem that underlies the legislation so as to appropriately assess a statutory provision’ s proportionality and to identify the objective of the policy. The case was heard and determined by three courts after appeal was launched in both the High Court and the Court of Appeal. House of Lords made the final decision regarding the case. The House of Lords held that the Consumer Credit Act 1974 section 127 (3) was compatible with the European Convention on Human Rights (ECHR). Based on article 6 of ECHR, House of Lords emphasized on the right of fair trial which is not a substantive right but rather a procedural right. It also held that no right was violated because the Parliament through section 127 (3) of the Consumer Credit Act 1974 intended to ensure that any unfair contract is not enforceable (House of Lords, 2009). In the ruling, the House of Lords noted that it was necessary that the lenders strictly comply to their particular obligations. They further observed that the Consumer Credit Act 1974 was appropriate in balancing the rights of pawnbrokers and the consumers, proportionately. Quoting from L'Office Cherifien des Phosphates v Yamashita- Shinnihon Steamship Co Ltd [1994] 1 AC 486, 525A, the House of Lords went further and noted that the basis of presumptions in the area of law was mainly aimed at asserting fairness which is actually the basis of general rule of law.2 Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816 showed that House of Lords can veer off from the traditional interpretations in order to achieve fairness and legal equality; this was evident when it relied on ministerial statements to divert the court from the intention expressed by the Parliament as it enacted a particular legislation.3 According to Mason (2006), the assertions made by the House of Lords went a long way in demonstrating that a legitimate source of power to make law is the Parliament, the power it exercises by enacting statutes. Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816 is a clear manifest of how rule of law works in order to achieve its end.4 The case brings out clearly the very aspect of separation of power with the demonstration of how each branch of government is limited by law to have certain powers. Also, it demonstrated how the judges can go out of their way to achieve fairness in an event that interpretation of statutes in certain way may be deemed to yield unfairness. Additionally, the case brought out the fact under the rule of law, remedy is sought in courts and that the courts are supreme in regard to legal issues (Mason, 2006). From the ruling delivered by the House of Lords, one can deduce that judges view the rule of law within the context of the case at hand and from the angle in which they are involved; their ultimate aim is to resolve disputes in response to the circumstances surrounding it and to reward remedy that they deem appropriate and consistent with the existing laws. In addition, policies that are not stipulated in legislation will be avoided if they are not compatible with the common law in regard to individual rights. The ruling showed that the court’s emphasis is on the rule of law aspects; separation of power, constitutional accountability, and judicial review. References Cane, P, 2011, Administrative Law, Oxford University Press. House of Lords, 2009, Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816, Available: http://www.publications.parliament.uk/ (Accessed: February 16, 2012) Mason, K, 2006, The Rule of Law, Judicial Review and the Public- Private Divide, Available: http://www.lawlink.nsw.gov.au/lawlink/Supreme_Court/ll_sc.nsf/pages/SCO_mason200306 (Accessed: February 16, 2012). Pollard, D and Parpworth, N and Hughes, D, 2007, Constitutional and Administrative Law, Oxford University Press. Ranjan, V, 2011, Rule of Law and Modern Administrative Law. Rochester, Rochester Read More