These departmental regulations and orders once made are immune from criticism by courts, unless they conflict with the provisions of the parent law, because they have been given the force of law beforehand. As long ago as 1909, in a case in which the Board of Agriculture authorised the compulsory sale of a farm, Justice Darling found the Board to be “no more impeachable than Parliament itself.”
Moreover, whenever there is delegated legislation there is discretionary authority. If discretionary authority is in violation of the rule of law, then the rule of law is inapplicable in any modem State.
When Dicey, in 1885, wrote the first edition of his Law of the Constitution, the primary functions of the State were the preservation of law and order, defence and foreign relations.
Today, the functions of the State are more positive and they regulate the national life in multifarious ways. Discretionary authority is, thus, in every detail inevitable. What is essential to emphasise here is that discretionary power should not mean arbitrary power, i.e., power exercised by an agent responsible to none and subject to no control.
A still more serious innovation is the practice of authorising officials by statute to decide disputes between their departments and private citizens. Acts of Parliament, such as Acts dealing with factory, trade boards, with public health, or with town and country planning, are examples of the kind of enactments that bestow judicial powers upon administrative agencies.
Such decisions are usually final, and there is no appeal from them to the ordinary law courts. This means that the Minister for the department or any other officer, whoever has been authorised by statute, has the right to decide questions which affect the right and interests of the private citizens.
The officer who actually makes the decision remains unknown to the public. His decisions are made privately, and he is not bound, as the ordinary courts are, by rules of procedure and evidence. Evidence may be excluded at will and interested parties are seldom interviewed. Government departments are not courts in Dicey’s sense and they do not follow the judicial mode.
And yet they decide cases involving their own actions. The old theory, therefore, that the executive in Britain is strictly accountable to the courts for the legality of all its acts has acquired now a somewhat formal character.
The second meaning given by Dicey to the rule of law requires some qualifications under the existing conditions. In the first place, there remain, even alter the operation of the Crown Proceedings Act, 1947, certain privileges and immunities which are open to public authorities and their officers.
Among these may be noted the Public Authorities Protection Act, 1893, which, as amended by Section 21 of the Limitation Act, 1939, “imposes a severe time limit upon actions brought against public authorities and their officers in respect of acts or omissions occurring in the course of official duty.”
These provisions make it necessary that proceedings against public officials for the excess, neglect, or default of the public authority must be started within six months of the Act, otherwise they lapse.
A heavy penalty by way of costs is to be paid if a citizen’s suit against public authority fails. Judges are not liable for anything said or done in the exercise of their judicial functions, even if they exceed their jurisdiction, unless the judge ought to have known the facts ousting his jurisdiction.
Then, in common with other civilized countries, Britain, too, gives immunities to the persons and property of other States, their rulers and diplomatic agents, in the form of exemption from process in the courts, but not from legal liability as such.
There are even instances where internal political expediency has required the conferment of special immunities. For instance, Trade Disputes Act, 1906, prohibits the bringing of any action against a trade union in respect of a tort.
This apart, two other points may be noted which significantly restrict the operative part of the rule of law. So long as wide social and economic gaps continue to exist between the different segments of society, legal equality does not in fact exist.
Litigation today is very cumbersome and expensive and it is beyond the reach of an ordinary man to seek appropriate redress. It also breeds discrimination because those who have the wherewithal have the due protection of law whereas it is inaccessible to those who suffer from the accident of birth and are born in poor families.
Moreover, the public officials enjoy certain characteristic rights as compared with private citizens. As Jennings points out, “The Home Secretary can compel me to make up a census return, though my neighbour cannot. A sheriff can summon me to serve on a jury, though my friends cannot.”
In spite of these qualifications the rule of law still remains a cardinal principle of the British Constitution and of every democratic government. It is true that delegated legislation and administrative jurisdiction are both the worst enemies of the rule of law. The development of delegated legislation and administrative justice, however, are not only inevitable but, also, with proper modifications and safeguards, desirable.
The motive at work is not that of a despot as Lord Hewart asserted in his book, The New Despotism. British officials retain a respect for the tradition of the rule of law in which they have been bred. “Their object is usually to avoid, not parliamentary control, but parliamentary delays; not the authority of the law, but the instructiveness of wealthy litigants.”
Moreover, the question whether a department is acting ultra vires can always be brought before the ordinary courts. In this way, Ministers and officials can at least be prevented from exceeding their statutory powers.
What the rule of law precisely involves is the absence of arbitrary power, “effective control of and proper publicity for delegated legislation, particularly when it imposes penalties.
That when discretionary power is granted the manner in which it is to be exercised should as far as practicable be defined; that every man should be responsible to the ordinary law whether he be private or public officer; that private rights should be determined by impartial and independent tribunals; and fundamental private rights are safeguarded by the ordinary law of the land.”