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Implication of Dicey's Definition on the Rule of Law - Essay Example

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Introduction Royal Prerogatives can be described as the discretionary powers which belonged to the Crown1. They were exercised as the residue of powers that belonged to the King or the Royal. The Crown today can only enjoy the prerogatives as derived from the common law and has no power to claim that there is a new prerogative that has come into existence (Pollard D et…
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Implication of Diceys Definition on the Rule of Law
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Download file to see previous pages Implication of Dicey’s definition on the ‘rule of law’; The implication of Dicey definition can be explained in three-fold: to prevent state from harassing citizens by means passing dubious laws, to exude the notion that everyone is equal in the eyes of the law and finally to protect the rights of the common citizen by limiting action of the state2. The role of prerogative powers was to offer flexible remedies where common law failed. This is due the rigidity of the common law3. In today’s world the control of exercise of the prerogative powers is normally exercised by way of judicial review4. Since there is no codification of the prerogative powers, the judicial officers through the judicial review process have become the final arbiters in determining what actually forms the prerogative powers. It is also concerned with checking the extent to which such powers are used (Pollard D et. Al 2007 p 42). In the enjoyment of prerogative powers it is important that these powers are actually defined and given a scope that is quite free from discretionary interpretation as this brings about a lot of inconsistency in interpretation of the law (Brayzer R, 1999 p 339). The English courts have given a wide interpretation of prerogative. In a decision in the case R v Secretary of State for the Home Department, ex parte Northumbria Police Authority5 prerogative powers was taken to mean doing whatever was necessary in order to avert what is considered threat to peace. The Dicey construction or rule of law makes every citizen have equal rights in the eyes of the law (Dicey A.V 1959 p 424). Upholding this, Lord Denning in the English case of Gourriet v. HM Attorney General6 stated that “Be you ever so high, the law is above you. The Attorney General has no prerogative to dispense with or suspend the law of England." This is always the prima facie stand in terms of being equal in the eyes of the law (Pollard D et. Al 2007 p 42). This has raised several debates. When we say equality before the law should mean that no one has special treatment yet at the same time the prerogative powers are enjoyed only by the Crown7. The scope and general prerogative powers It is quite difficult to actually and narrowly determine the province of prerogative powers8. Prerogative powers exist by the dint of common law. No new prerogatives can be established (Pollard D et. Al. 2007 p 82) . However, prerogatives can be abolished through enactment of statutes. Prerogative has to be exercised in accordance with the statute. This was shown in R v. Secretary of State for Fire Department ex parte Fire Brigade Union9. This case showed that there was no prerogative to deviate from what the statute clearly stated. Here the secretary of state was precluded from implementing another statutory in lieu of the one that the statute had provided for. The prerogative powers exists in the form of the Crowns powers to appoint the Prime Minister, the power of Royal mercy among others. Historical origin and developments In the history the prerogative were vested on the King or the Crown. The King then delegated the judicial powers to the judicial officers who then who exercised the prerogative on the behalf of the Crown. The constitutional Convention is the rules that are used for determining the mode in Crown exercises its discretionary powers. These discretionary pow ...Download file to see next pagesRead More
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