In present times, however, the Rule of Law is subject to serious limitations. They are as below:
Growth of Delegated Legislation
Increasing volume and pressure of legislative work has made it difficult for the parliament to discuss the details of many bills, which contain technical clauses. Moreover, these clauses cannot be exhaustive but have to be of general nature so that they may be modified to ‘meet changing situations. Therefore, parliaments now pass skeleton laws the details of which are filled by the regulations and orders of the appropriate government departments. These departmental regulations and orders have the same force of law as the original legislation and are, therefore, immune from criticism by the courts.
This principle was established as early as 1909, when, in a case in which the Board of Agriculture authorised the compulsory sale of a farm. Justice Darling declared the Board to be “no more impeachable than Parliament itself.” However, the growth of delegated legislation and particularly its interfering character have made great inroads into individual liberty. Bacon observed that there is no worse torture than the torture of laws. The law-courts cannot come to the aid of such individuals, for the application of the Rule of Law is limited in this respect.
Growth of Administrative Jurisdiction
The growth of administrative justice is a still more serious limitation on the Rule of Law. It is now a practice to authorise administrative officials by statutes to decide disputes between their departments and private citizens, especially with regard to such governmental activities as education, public health, town-planning, the protection of the unemployed, etc. Parliament by an act bestows judicial powers on the ministers or the departments to decide questions of rights and interests of the private citizens, and their decisions are final, because there is no appeal to ordinary courts.
For instance, the Minister of Health has under the Road Act of 1920 the power to decide appeals from the refusal of licences to run omnibuses. The National Insurance Act of 1911 established the National Health Tribunals which exercise judicial powers. They have thus become a sort of administrative courts and their decisions are a kind of administrative law. Similarly, the Supreme Court of the U.S.A. has declared that “the decisions of the Secretary of Labour in all immigration cases are final.” Under the Rule of Law, these judicial functions and powers should have been performed by an ordinary court, but they are now entrusted to administrative bodies and officials. Thus the growth of administrative jurisdiction in England and U.S.A has modified to a great extent the Rule of Law.
Special Immunities of certain Public Officials
The Rule of Law is not enforced against all public officials without exception, as Dicey once believed. There are now certain classes of officers who enjoy special immunity from the consequences of their acts at Common Law. Firstly, the rulers and diplomatic representatives of foreign States in England are exempted from legal processes in the courts. The diplomatic immunity, however, is necessary for international intercourse and relations.
Secondly, public officers and authorities enjoy certain privileges and impunities under the Public Authorities Protection Act of 1893, as amended by section 12 of the Limitation Act of 1939, which “imposes a severe time-limit upon actions against public authorities and their officers in respect of acts or omissions in the course of official duty.*’
Thirdly, the head of a government is not responsible for the act of his subordinates, although as a head of a private institution he would have been so responsible. Fourthly, the Trade Disputes Act of 1906 prohibits action against a trade union in respect of a tort. Fifthly, the Customs Consolidation Act of 1876, the Lunacy Act of 1890 and the Criminal Justice Act of 1925 protect certain classes of officials from being sued in ordinary courts. Similar immunity is enjoyed by certain public officers, such as the Judges, the Justices of Peace, Customs and Excise Officers. Lastly, there are even instances when immunity is granted on the ground of internal political expediency,—an exception which is of the most serious implication so far as the liberty of the citizens is concerned.
Conclusion
Owing to the growth of social legislation, administrative justice, and the enjoyment of privileges and immunities by public officers, the Rule of Law has come to be limited and modified even in Great Britain, the land of its origin. It is no longer so exceptionalness and pure as Dicey thought. Nevertheless,,the spirit and purpose of the Rule of Law, which requires that all official acts and governmental activities must be in conformity with the laws, is still at work in England.
The limitations and immunities mentioned above are not meant to justify arbitrary behaviour on the official part, but to promote interests of public welfare and prosperity of the nation as a whole. British officials retain a respect for the traditions 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 obstructiveness vires of wealthy litigants.”
Finally, administrative action can be questioned in a court of law, if the officers of an administrative body act ultra vires, for they must do only those things which law authorizes. The citizen has the right to appeal to an independent court to compel the officials to act according to law and not to exceed their statutory powers.