Introduction
The rule of law is a foundational principle of the United Kingdom’s constitutional framework, shaping the relationship between the state and its citizens. First articulated in a systematic manner by A.V. Dicey in the late 19th century, the concept has evolved significantly over time, adapting to the complexities of modern governance and judicial interpretation. This essay explores the connections between Dicey’s classical formulation of the rule of law and its contemporary application in the case law of the United Kingdom Supreme Court. It will argue that while there are enduring links—particularly in the emphasis on legal certainty and the protection of individual rights—significant divergences have emerged due to the judiciary’s response to evolving political and constitutional challenges. The discussion will first outline Dicey’s original conception, then examine key Supreme Court cases to assess continuity and adaptation, before concluding with reflections on the implications of these developments for public law.
Dicey’s Conception of the Rule of Law
A.V. Dicey, in his seminal work *Introduction to the Study of the Law of the Constitution* (1885), provided a tripartite definition of the rule of law that remains influential. First, he asserted that no individual is above the law, meaning that every person, regardless of status, is subject to the ordinary law of the land and answerable to the courts (Dicey, 1885). This principle rejected arbitrary power and underscored equality before the law. Second, Dicey emphasized that the rule of law requires legal rights to be determined by the ordinary courts, rather than through discretionary or administrative mechanisms. Finally, he argued that the rule of law in England (as it was then termed) was inherently tied to the protection of individual liberties through common law principles, rather than a formal written constitution (Dicey, 1885).
Dicey’s framework was deeply rooted in the political and legal context of his time, reflecting a suspicion of executive overreach and a preference for judicial oversight. However, as scholars have noted, his conception was arguably narrow, focusing predominantly on procedural aspects rather than substantive fairness or justice (Bingham, 2010). This limitation provides a critical starting point for understanding how the rule of law has been reinterpreted in modern jurisprudence.
The Rule of Law in Modern Supreme Court Jurisprudence
The establishment of the UK Supreme Court in 2009 marked a significant moment in the evolution of constitutional law, providing a forum for nuanced interpretations of foundational principles like the rule of law. Unlike Dicey’s time, when parliamentary sovereignty often overshadowed other constitutional tenets, modern case law reflects a judiciary more willing to assert the rule of law as a counterbalance to legislative and executive power. Two landmark cases illustrate this shift: *R (Miller) v Secretary of State for Exiting the European Union* [2017] UKSC 5 (Miller No. 1) and *R (Miller) v The Prime Minister* [2019] UKSC 41 (Miller No. 2).
In Miller No. 1, the Supreme Court addressed whether the government could trigger Article 50 of the Treaty on European Union to initiate Brexit without parliamentary approval. The majority judgment held that such a significant constitutional change required an Act of Parliament, reinforcing the principle that the executive cannot act arbitrarily or bypass established legal processes (Miller No. 1, 2017). This decision echoes Dicey’s insistence on the supremacy of law over discretionary power, demonstrating a clear connection to his first principle. However, it also extends beyond Dicey by engaging with substantive constitutional issues, such as the role of Parliament in safeguarding rights—a dimension less prominent in his original framework.
Similarly, in Miller No. 2, the Supreme Court ruled that the Prime Minister’s advice to the Queen to prorogue Parliament in 2019 was unlawful, as it frustrated Parliament’s ability to carry out its constitutional functions (Miller No. 2, 2019). The Court articulated the rule of law as encompassing the protection of democratic processes and accountability, a broader interpretation than Dicey’s procedural focus. Lord Reed, in delivering the judgment, explicitly linked the rule of law to the principle that executive actions must be subject to legal limits, resonating with Dicey’s rejection of arbitrary power. Yet, the Court’s willingness to intervene in political matters marks a departure from Dicey’s more restrained vision of judicial oversight.
Connections and Divergences
Clearly, there are notable threads connecting Dicey’s rule of law to its modern application. The emphasis on legal certainty and the prohibition of arbitrary power remains central to Supreme Court reasoning, as seen in both Miller cases. Dicey’s idea that no one is above the law finds expression in the judiciary’s readiness to hold even the highest executive offices to account, ensuring that power is exercised within legal bounds. Furthermore, the protection of individual rights—albeit through a more dynamic lens—continues to underpin judicial interpretations, aligning with Dicey’s view of the common law as a safeguard for liberties.
However, significant divergences are also evident. Modern jurisprudence, influenced by human rights norms (notably the European Convention on Human Rights via the Human Rights Act 1998), often incorporates substantive elements of fairness and justice that Dicey largely overlooked (Bingham, 2010). For instance, in cases like R (UNISON) v Lord Chancellor [2017] UKSC 51, the Supreme Court ruled that exorbitant tribunal fees undermined access to justice, explicitly linking the rule of law to the practical ability of individuals to enforce their rights. This substantive dimension contrasts with Dicey’s procedural focus and highlights how the concept has adapted to contemporary expectations of governance.
Additionally, the judiciary’s evolving role as a constitutional check, particularly post-2009 with the creation of the Supreme Court, indicates a shift from Dicey’s era, where parliamentary sovereignty was near-absolute. Today, the rule of law often serves as a tool to balance competing constitutional principles, a development that Dicey might have viewed with suspicion given his emphasis on parliamentary supremacy (Allan, 2013). Thus, while the core of Dicey’s ideas persists, their application has been reshaped by modern political realities and judicial assertiveness.
Conclusion
In conclusion, the rule of law as articulated by Dicey and as applied in modern UK Supreme Court case law shares fundamental connections, particularly in the rejection of arbitrary power and the commitment to legal certainty. Cases like Miller No. 1 and Miller No. 2 demonstrate the judiciary’s adherence to these principles, ensuring that executive actions remain within legal bounds. Nevertheless, significant divergences exist, with contemporary interpretations embracing substantive fairness, access to justice, and a more active judicial role in constitutional matters—elements less pronounced in Dicey’s framework. These developments reflect the dynamic nature of public law, responding to modern challenges such as human rights and democratic accountability. The implications are profound, suggesting that while Dicey’s foundational ideas endure, the rule of law must continue to evolve to address the complexities of 21st-century governance. This balance between continuity and adaptation ensures that the principle remains a vital safeguard in the UK’s unwritten constitution.
References
- Allan, T.R.S. (2013) The Sovereignty of Law: Freedom, Constitution and Common Law. Oxford University Press.
- Bingham, T. (2010) The Rule of Law. Penguin Books.
- Dicey, A.V. (1885) Introduction to the Study of the Law of the Constitution. Macmillan.
- R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5. Available at: Judgment. UK Supreme Court.
- R (Miller) v The Prime Minister [2019] UKSC 41. Available at: Judgment. UK Supreme Court.
- R (UNISON) v Lord Chancellor [2017] UKSC 51. Available at: Judgment. UK Supreme Court.
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