Introduction
The rule of law is a foundational principle of the United Kingdom’s constitutional framework, shaping the relationship between the state, its institutions, and its citizens. First articulated by A.V. Dicey in his seminal work, Introduction to the Study of the Law of the Constitution (1885), the concept has evolved over time, adapting to contemporary challenges and judicial interpretations. This essay explores the connections between Dicey’s classical understanding of the rule of law and its modern application in the case law of the United Kingdom Supreme Court. By examining Dicey’s three core principles—supremacy of the law, equality before the law, and the protection of individual rights through common law—it will assess how these ideas resonate with, or diverge from, judicial reasoning in recent Supreme Court decisions. The analysis will argue that while significant continuity exists, particularly in the emphasis on legal accountability and individual rights, modern interpretations have expanded the concept to address complexities Dicey could not have foreseen, such as the role of judicial review and human rights legislation.
Dicey’s Articulation of the Rule of Law
A.V. Dicey’s formulation of the rule of law remains a cornerstone of British constitutional theory. He outlined three key elements: first, no individual is above the law, and the law must govern all actions, including those of the government (Dicey, 1885). This principle rejected arbitrary power, asserting that legal authority must be rooted in established law rather than executive discretion. Second, Dicey emphasised equality before the law, meaning that all individuals, regardless of status, are subject to the same legal rules enforced by ordinary courts. Finally, he argued that constitutional rights in the UK are protected not by a written constitution but through the common law, as developed by judicial precedent (Dicey, 1885). For Dicey, the judiciary played a crucial role in safeguarding individual liberties by ensuring that the executive remained within legal bounds.
While Dicey’s framework laid a robust foundation, it has been critiqued for its historical context. His conception, rooted in a Victorian-era understanding of governance, did not account for the complexities of modern administrative states or the influence of international law. Nevertheless, as Bingham (2010) notes, Dicey’s principles continue to provide a benchmark against which modern interpretations are measured. The question remains: how far do these classical ideas persist in the jurisprudence of the UK Supreme Court?
The Rule of Law in Modern Supreme Court Case Law
In the contemporary context, the UK Supreme Court has frequently invoked the rule of law to address issues of governance, accountability, and rights protection. One illustrative example is the landmark case of R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, where the Court ruled that the government could not trigger Article 50 to leave the EU without parliamentary approval. The judgment underscored the principle that executive actions must be grounded in legal authority—a clear echo of Dicey’s first principle of the supremacy of law over arbitrary power (Elliott, 2017). The Court’s reasoning demonstrated a commitment to ensuring that even significant political decisions remain subject to legal scrutiny, thereby reinforcing the idea that no entity, including the government, operates above the law.
Furthermore, the Supreme Court has expanded on Dicey’s notion of equality before the law by addressing systemic inequalities through judicial review. In R (UNISON) v Lord Chancellor [2017] UKSC 51, the Court struck down tribunal fees that restricted access to justice, arguing that such barriers undermined the rule of law. The justices highlighted that access to courts is a fundamental component of legality, resonating with Dicey’s emphasis on ordinary courts as guardians of rights, though extending this to practical accessibility (Tomkins & Turpin, 2019). This modern interpretation arguably adapts Dicey’s framework to contemporary societal needs, ensuring that equality before the law is not merely theoretical but practically enforceable.
Connections and Divergences Between Dicey and Modern Interpretations
There are undeniable connections between Dicey’s rule of law and its application in Supreme Court jurisprudence. Primarily, the principle of legal supremacy endures as a central tenet. Both Dicey and modern justices assert that governmental power must be exercised within legal confines, as evidenced in cases like Miller, where parliamentary sovereignty—a concept closely tied to Dicey’s thought—was upheld against executive overreach (Craig, 2017). Moreover, the judiciary’s role as a protector of individual rights, a key aspect of Dicey’s third principle, remains evident in the Court’s willingness to scrutinise state actions through judicial review, even if the mechanisms (such as the Human Rights Act 1998) differ from Dicey’s common law focus.
However, significant divergences also exist. Dicey’s framework did not anticipate the influence of international law or statutes like the Human Rights Act, which have reshaped how rights are protected in the UK. Modern case law often integrates European Convention on Human Rights principles, moving beyond Dicey’s reliance on common law alone (Bingham, 2010). Additionally, while Dicey’s view of equality before the law was largely formal, focusing on equal treatment under existing rules, the Supreme Court has embraced a more substantive approach, addressing barriers to justice as seen in UNISON. These adaptations suggest that while Dicey’s principles provide a foundational lens, they have been reinterpreted to meet the demands of a complex, modern legal landscape.
Critical Reflection on the Evolving Nature of the Rule of Law
The rule of law, as articulated by Dicey, is not a static concept but a dynamic one, capable of evolution through judicial interpretation. Indeed, the Supreme Court’s rulings demonstrate a broader, more inclusive understanding that builds on Dicey’s ideas while addressing limitations in his original framework. For instance, Dicey’s suspicion of administrative discretion has been tempered by the judiciary’s acceptance of delegated powers, provided they are subject to legal oversight (Craig, 2017). This pragmatic shift reflects an awareness of the necessities of modern governance, which Dicey could not have foreseen.
Critically, however, one might argue that this evolution raises questions about the coherence of the rule of law as a unifying principle. If its meaning shifts with each judicial decision, does it risk becoming a vague ideal rather than a concrete standard? While Dicey’s formulation offered clarity, modern interpretations, though arguably more just, introduce complexity that may challenge consistent application. Nevertheless, this flexibility allows the rule of law to remain relevant, balancing continuity with adaptability.
Conclusion
In conclusion, the concept of the rule of law as articulated by Dicey and as applied in the modern case law of the UK Supreme Court shares fundamental connections, particularly in the commitment to legal supremacy and the judiciary’s protective role over individual rights. Cases such as Miller and UNISON reflect Dicey’s enduring influence, especially in curbing arbitrary power and upholding equality before the law. However, significant divergences arise from the Court’s incorporation of human rights frameworks and its focus on substantive access to justice, adapting Dicey’s ideas to contemporary challenges. This evolution, while introducing complexity, ensures the rule of law remains a living principle, responsive to societal and legal developments. The implications of this analysis suggest that while Dicey’s framework provides a historical anchor, its modern application is necessarily broader, reflecting the dynamic nature of constitutional governance in the UK.
References
- Bingham, T. (2010) The Rule of Law. London: Allen Lane.
- Craig, P. (2017) ‘The Rule of Law in the United Kingdom: Substance and Procedure.’ Public Law, 2017, pp. 89-105.
- Dicey, A.V. (1885) Introduction to the Study of the Law of the Constitution. London: Macmillan.
- Elliott, M. (2017) ‘The Supreme Court’s Judgment in Miller: In Search of Constitutional Principle.’ Cambridge Law Journal, 76(2), pp. 257-260.
- Tomkins, A. and Turpin, C. (2019) British Government and the Constitution: Text and Materials. 8th edn. Cambridge: Cambridge University Press.
