Introduction
The rule of law is a foundational principle in the United Kingdom’s unwritten constitution, serving as a safeguard against arbitrary power and a guarantor of legal accountability. First systematically articulated by A.V. Dicey in the late 19th century, the concept has evolved through judicial interpretation, particularly in the modern case law of the UK Supreme Court. This essay explores the connections between Dicey’s classical formulation of the rule of law and its contemporary application in Supreme Court decisions. By examining Dicey’s key principles and contrasting them with modern judicial perspectives, the essay argues that while core themes of legality and equality before the law persist, the concept has expanded to address contemporary constitutional challenges.
Dicey’s Formulation of the Rule of Law
A.V. Dicey, in his seminal work *Introduction to the Study of the Law of the Constitution* (1885), outlined the rule of law as comprising three main principles. First, no individual is above the law, meaning that everyone, including government officials, is subject to ordinary legal processes. Second, legal rights are determined by ordinary courts rather than discretionary governmental powers, emphasising the importance of judicial independence. Third, constitutional principles arise from judicial decisions rather than codified documents, reflecting the UK’s unwritten constitutional tradition (Dicey, 1885). Dicey’s framework was rooted in a 19th-century context, prioritising the avoidance of arbitrary power and the protection of individual liberty through established legal mechanisms.
While Dicey’s ideas provide a clear benchmark, they are not without limitations. His focus on judicial precedent arguably undervalues the role of parliamentary sovereignty, a tension that remains evident in modern discourse. Nevertheless, his principles—particularly the insistence on equality before the law—remain a touchstone for understanding the rule of law.
The Rule of Law in Modern Supreme Court Case Law
In contemporary UK jurisprudence, the rule of law has been interpreted more dynamically by the Supreme Court, often extending beyond Dicey’s original scope. A landmark case illustrating this evolution is *R (Miller) v Secretary of State for Exiting the European Union* [2017] UKSC 5, commonly known as Miller 1. Here, the Court ruled that the government could not trigger Article 50 of the Treaty on European Union to begin Brexit without parliamentary approval, reinforcing the principle that executive power must be exercised within legal limits (UKSC, 2017). This decision echoes Dicey’s emphasis on the subjection of government to law, yet it also demonstrates a broader application, addressing complex constitutional questions in a modern context.
Furthermore, in R (UNISON) v Lord Chancellor [2017] UKSC 51, the Supreme Court struck down employment tribunal fees as a barrier to access to justice, explicitly invoking the rule of law to protect citizens’ ability to enforce their rights (UKSC, 2017). This interpretation goes beyond Dicey’s focus on formal equality before the law, incorporating a substantive dimension that ensures practical access to legal remedies. Such rulings suggest that while Dicey’s core ideas persist, the judiciary now engages with broader societal and constitutional concerns, adapting the rule of law to contemporary needs.
Connections and Divergences
The connection between Dicey’s rule of law and its modern judicial application lies primarily in the enduring commitment to legality and the prevention of arbitrary power. Both frameworks assert that governmental authority must operate within legal boundaries, a principle evident in cases like Miller 1. However, a key divergence arises in the scope of interpretation. Dicey’s formulation was largely procedural, focusing on the mechanisms of legal accountability, whereas modern case law often embraces substantive elements, such as access to justice, as seen in UNISON. This shift arguably reflects the judiciary’s response to evolving societal expectations and the complexities of a modern democratic state.
Moreover, while Dicey downplayed parliamentary sovereignty in favour of judicial oversight, the Supreme Court navigates a delicate balance between respecting parliamentary authority and upholding constitutional principles. This tension highlights a nuanced evolution rather than a complete departure from Dicey’s ideas. Indeed, the rule of law today appears more flexible, addressing issues Dicey could not have foreseen, such as the impact of international law and human rights frameworks.
Conclusion
In conclusion, a clear thread connects Dicey’s classical articulation of the rule of law with its application in modern UK Supreme Court case law, primarily through the shared emphasis on legality and the prevention of arbitrary governance. However, the concept has expanded beyond Dicey’s procedural focus to incorporate substantive protections and address contemporary constitutional challenges, as evidenced in pivotal cases like Miller 1 and UNISON. This evolution suggests that while Dicey’s principles remain relevant, the rule of law is a living concept, adapted by the judiciary to safeguard democracy and individual rights in a changing legal landscape. The implications of this development underscore the judiciary’s critical role in balancing historical doctrines with modern necessities, ensuring the rule of law remains a cornerstone of constitutional integrity.
References
- Dicey, A.V. (1885) Introduction to the Study of the Law of the Constitution. Macmillan.
- UK Supreme Court (2017) R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5. Supreme Court of the United Kingdom.
- UK Supreme Court (2017) R (UNISON) v Lord Chancellor [2017] UKSC 51. Supreme Court of the United Kingdom.
