The Doctrine of the Rule of Law in the UK: A Constitutional Analysis

INTRODUCTION:

The rule of law is widely regarded as one of the most foundational principles in the UK’s uncodified constitution.[1] It acts as a restraint of the arbitrary powers of the government and seeks to ensure that all entities are under the ruling set by the laws, primarily focused on keeping the exercise of powers in check rather than in abuse for political convenience or executive discretion. Although it is deeply engraved into UK law, the topic remains critical to interpretation. Some scholars adopt a formal conception of the rule, focusing on legality and certainty,[2] while others take a more substantive approach through the incorporation of human rights, equality and fairness to all.[3]

One of the main theories looked at while considering the rule of law is that of A.V. Dicey during the nineteenth century. This view considered the rule of law as a legal safeguard against arbitrary executive powers and focused on equality before the ordinary courts. However, there have been more modern views such as Lord Bingham, wherein his view focuses on the development of human rights and expansion of judicial discretion have severely altered the constitutional landscape. Lord Bingham believed that legality alone is insufficient and the rule of law must account for the protection of fundamental rights.

This article will examine the role of the rule of law in the UK constitutional framework. It studies the evolution of the rule of law from Dicey’s formal approach to more modern substantive approaches, analyses the relationship between parliamentary sovereignty, evaluates contemporary challenges such as anti-terrorism legislation, judicial review, access to courts, executive discretion and algorithmic governance.

1. DICEY’S CLASSICAL THEORY ON THE RULE OF LAW:

The general starting point for understanding the rule of law is derived from Dicey’s view in the Introduction to the Study of the Law of the Constitution (1885).[4] Here, Dicey focused on three main principles.

Firstly, he focused on the supremacy of ordinary law over arbitrary power, i.e. no individual should be punished unless there is a distinct breach of law established before the ordinary courts. Dicey often showed hostility towards arbitrary executive powers and believed that such governmental power must be exercised strictly in accordance with legal authority.

Secondly, Dicey argued that no one should be above the law, i.e. all entities, government or people should not be able to hold themselves in a position where they can overrule what the law states. Equality before the law was therefore central to his constitutional philosophy.

Thirdly, he maintained that constitutional principles and rights of individuals are derived from the ordinary law administered by courts rather than a written constitution or entrenched bill of rights.

Dicey’s theory reflected nineteenth century liberal constitutionalism, focusing on limiting government and judicial protection of liberty. His approach remains significant today due to the emphasis on legality, certainty of law and the constraints on executive power.

The major strength of Dicey’s view was that he was insistent on the fact that government actions require legal authority. This was further established in the case Entick v Carrington (1765).[5] The case concerned itself with government officials entering a property without lawful authority. Lord Camden held that such acts could only be lawful had there been appropriate authority provided, regardless of their position in government. This case remains one of the most important authorities establishing that executive power cannot be exercised without legally justification.

Furthermore, his views also emphasised the importance of certainty and predictability of the law. He believed that citizens should be able to know the law, its implications and have a right to such knowledge so that it limits arbitrary government interference while allowing them to organise their affairs in confidence.

However, this view faces significant criticism due to its excessive formality. This is because procedures of the law can still be followed while creating laws that are unjust. Extreme Authoritarian regimes often capitalise on valid legislative procedures to make oppressive laws. Thus, legality alone cannot guarantee justice.[6]

Furthermore, his views often underestimated the extent of discretionary powers required in modern day as well as often failing to recognise structural inequalities within his concept of equality before the law. One’s access to justice depends on the resources and social position and as such, formal legal equality does not necessarily produce substantive equality.[7]

2. PARLIAMENTARY SOVEREIGNTY AND THE RULE OF LAW

A core constitutional tension in the UK concerns the relationship between parliamentary sovereignty and the rule of law.

Under the orthodox view of Dicey, Parliament possesses the power to enact, amend or repeal any legislation. The courts cannot invalidate any Acts of Parliament and so, Parliamentary Sovereignty has been regarded as the central principle of the UK constitution.

However, this brings forth the question of whether the rule of law can meaningfully restrain legislative authority given its supreme power. This question has become far more significant with the development of judicial review and human right jurisprudence. In R (Jackson) v Attorney General [2005], the case concerned the validity of the Parliament Act 1949 where most law lords suggested that Parliament’s sovereignty may not be entirely absolute.[8]

Lord Steyn observed that parliamentary sovereignty is “a construct of the common law” and Baroness Hale noted that courts could reject legislation which abolished judicial review and even democracy itself. These observations were made obiter but indicate that the Rule of Law is becoming an increasingly important constitutional constraint on legislative power.

The Human Rights Act 1998 has also modified the constitutional balance.[9] Section 3 requires that legislation be interpreted compatibly with Convention rights when possible and section 4 allows for the declaration of incompatibility.

The significance of the Human Rights Act was shown in A v Secretary of State for the Home Department [2004].[10] After the September 11 attacks the Anti-terrorism, Crime and Security Act 2001 authorised the indefinite detention of foreign terrorism suspects without trial.

The House of Lords held that the detention regimes violated Articles 5 and 14 of the European Convention on Human Rights due to their measures being disproportionate and discriminatory.[11] The case shows the increasing willingness of the Court to scrutinise legislation detrimental to liberty and how it reflects the growing influence of substantive Rule of Law principles.

However, UK courts still cannot abolish Acts of Parliament. Parliamentary sovereignty remains a core constitutional principle.

3. EXECUTIVE DISCRETION AND JUDICIAL REVIEW

Controlling the exercise of discretion by executive actors is an important function of the Rule of Law. Overly broad discretionary powers pose risks of arbitrariness, inconsistency and abuse. The greater the scope for subjectivity in the exercise of discretion, the greater the potential for arbitrariness (Lord Bingham).[12]

Judicial review is the principal constitutional mechanism for supervising the exercise of executive power. An important constitutional landmark was Council of Civil Service Unions v Minister for the Civil Service [1985] (the GCHQ case). The House of Lords established that the exercise of prerogative powers is subject to judicial review on grounds of (among others) illegality, irrationality and procedural impropriety.[13] Lord Diplock set out the main grounds of review as: ‘illegality, irrationality and procedural impropriety.’

The case demonstrated greater accountability of the executives. Furthermore, a critical constitutional principle which is central to the Rule of Law is procedural fairness. It was emphasised by the House of Lords in R (Anufrijeva) v Secretary of State for the Home Department [2003].[14] The case concerned the failure by the state to communicate to the claimant the refusal of her asylum claim which, in turn, meant she had lost welfare benefits. Lord Steyn reiterated ‘The decision affects the claimant’s legal rights… The decision has no legal effect on her until it is communicated to her.’ In addition, his judgment is a clear demonstration of a shift from simply having a formal concept of legality towards a more substantial form of procedural fairness. Judicial review of the exercise of prerogative power has become increasingly prevalent within contemporary constitutional law, especially in immigration, welfare and national security law contexts. However, some academics claim that courts still show a degree of over-deference to executive arguments in areas of security. Liversidge v Anderson [1942] saw a broad interpretation of wartime powers of detention, and Lord Atkin in the dissent eloquently championed the argument that the executive even during emergencies is governed by law.[15]

4. THE SUBSTANTIVE RULE OF LAW AND HUMAN RIGHTS

An important debate of our time involves whether or not the Rule of Law contains substantive principles and values such as human rights, dignity and equality. This contrasted with the idea of the Rule of Law as primarily about legality and procedural regularity as suggested by Dicey’s analysis.

The Rule of Law contains the protection of fundamental rights, as argued by Lord Bingham in The Rule of Law (2010).[16] He identifies eight principles underlying the Rule of Law including, ‘accessible and clear law, equality before the law, limits on arbitrary power, access to justice, procedural fairness, and the protection of human rights’.

The Human Rights Act 1998 increased substantive constitutionalism in the UK through making Convention rights domestic.[17] The constitutional relevance of rights based review was emphasised in R (Daly) v Secretary of State for the Home Department [2001] where prison rules allowing inspection of prisoners legally privileged mail without the prisoner present was found to be in breach of the rule of law as they interfered with the prisoners’ rights to a disproportionate extent.[18]

The principles of proportionality and fairness rather than simply formal legality were central to the judgment given by Lord Steyn. ‘Daly shows how rights-based constitutionalism is being introduced into UK public law. Substantive rights theories have some clear strengths. First, legality alone cannot prevent oppression by the government, second the individual is not solely subjected to the will of majority and third, the use of constitutional rights strengthens government accountability.

Critics believe, however, that substantive approaches risk the implementation of judges’ individual moral values into politics. Despite such arguments substantive constitutionalism is appearing more strongly in UK constitutional law in the form of proportionality review, human rights protection and procedural fairness.

5. EQUALITY BEFORE THE LAW AND ACCESS TO JUSTICE

Equality before the law is essential for the Rule of Law. However modern constitutionalism demands that, without meaningful access to justice, formal equality can be meaningless.

Access to courts was defended as essential in R (UNISON) v Lord Chancellor [2017].[19] It ruled that government-imposed fees for employment tribunals were unlawful. In the UK, fees have significantly decreased claims. The Supreme Court found the fee regime unlawfully deterred the poor from access to justice. The necessity of being able to enforce rights before a court was highlighted by Lord Reed “laws become meaningless if there is no means of enforcing rights”. The decision is a constitutional milestone in accepting access to justice as a cornerstone of the Rule of Law. Nevertheless, issues arise with the Legal Aid, Sentencing and Punishment of Offenders Act 2012.[20] Cuts have been made in the fields of welfare, housing, immigration and employment law and in particular, criticism is heard that by reducing legal aid it disproportionately disadvantages the poorest members of society and therefore makes equality before the law meaningful.[21]

6. NATIONAL SECURITY AND THE RULE OF LAW

There is possibly no more challenging area for the Rule of Law than National Security.

States often justify the necessity of these powers for counterterrorism and the protection of the public. Emergency powers, however, can override constitutional guarantees. The Belmarsh case was a sign of judicial worry over indefinite detention without trial.

Legislation such as the Terrorism Act 2000 and the Investigatory Powers Act 2016 expanded the investigatory and surveillance powers of the state, citing the modern nature of security threats.[22] Opponents point to the risk these wide powers pose to privacy, liberty and democratic accountability.

The issue of the pandemic has also brought major rule of law issues to the forefront. During the pandemic the Public Health (Control of Disease) Act 1984 allowed a host of stringent rules and regulations imposing restrictions on liberty, assembly and economy.[23] Opponents also felt that swift legislation and vague ministerial powers have made the rule of law a weak principle of the state and denied Parliament’s scrutiny and debate on the rules and regulations of such powers. This reveals a fundamental constitutional dilemma: The rule of law requires government to be accountable and acting within the law, but the courts tend to greatly defer to government powers during emergencies.

7. AI and the Rule of Law

Contemporary technological advances introduce new constitutional challenges to the Rule of Law. Automated decision-making systems are becoming increasingly integral to the operation of public administration, fromelfare services to law enforcement, immigration and education.

The A-level algorithm controversy of 2020 highlighted some of these constitutional risks; statistical modeling favored students with lower historic school grades; concerns were expressed about justice and equality. Algorithmic governance poses several Rule of Law problems, firstly, automated systems may be opaque. Secondly, they may replicate historic injustices. Thirdly, there can be a lack of accountability where decision-making processes are obscure. Fourthly, access to justice through legal challenge is impeded where the basis for a decision is not knowable to the individual concerned. [24]

Paul Craig has argued that algorithmic governance is likely to undermine accountability and procedural fairness unless safeguards are erected. The Rule of Law therefore demands that all public decision-making remain transparent, reviewable and accountable whether the decisions are made by humans or by machines.

8. CRITICAL ASSESSMENT

The Rule of Law is still essential in a constitutional democracy; it ensures executive action is confined and held accountable through legality and fairness. It prevents the executive from exercising its powers arbitrarily.

However, important constitutional tensions remain in its application. Whereas formal constitutionalists like Dicey establish legal constraints that limit arbitrary executive power and provide for predictability and certainty, a solely formal adherence to legality alone can permit substantive injustice. Substantive arguments for the Rule of Law are better equipped to protect liberty and dignity but in doing so potentially expand the power of the judiciary into controversial areas of public policy.

A hybrid understanding of the Rule of Law, combining a formal adherence to legality with a recognition of substantive constitutional principles, appears increasingly common within contemporary constitutional practice.[25] Access to justice is clearly recognised as an important constitutional value and courts have developed powers that have increased their review role over the executive, through developments in human rights jurisprudence.

Nevertheless, the continued supremacy of Parliament poses limitations upon the judicial role and questions regarding delegated legislation, emergency powers and new technology remain challenges to the Rule of Law. The Rule of Law therefore must develop.

CONCLUSION:

The Rule of Law remains one of the UK’s most important constitutional principles. With Dicey’s theory establishing foundations by focusing on the governmental power which must be exercised according to the law and no individual is able to exempt themselves from that law.

However, modern constitutional developments have made for quite an extension of this doctrine. Judicial thinking and legal interpretation are now recognizing that legality is not enough; that the Rule of Law now encompasses certain substantive concepts such as fairness, accessibility to justice, proportionality and human rights.

Examples such as Entick v Carrington, Anufrijeva, Belmarsh, and UNISON serve as evidence for the new way in which the judiciary acts as a restraint upon executive power and constitutional rights. Considering this, some constitutional tensions persist; parliamentary sovereignty restricts the judiciary, the executive continues to grow as an ever-developing entity, and modern technological advancements throw up novel accountability issues.

The modern Rule of Law has undoubtedly moved past a merely procedural explanation and has been transformed into a principle of the constitution seeking to uphold the delicate balance between legality, democracy, liberty, accountability and human dignity.

Bibliography

Primary Sources:

A v Secretary of State for the Home Department [2004] UKHL 56

Anti- Terrorism, Crime and Security Act 2001

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374

Entick v Carrington (1765) 95 ER 807

Human Right Act 1998

Investigatory Powers Act 2016

Legal Aid, Sentencing and Punishment of Offenders Act 2012

Liversidge v Aderson [1942] AC 206

Public Health (Control of Disease) Act 1984

R (Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36

R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532

R (Jackson) v Attorney General [2005] UKHL 56

R (UNISON) v Lord Chancellor [2017] UKSC 51

Terrorism Act 2000

Secondary Sources:

Bingham T, The Rule of Law (Allen Lane 2010)

Craig P, Administrative Law (9^th edn, Sweet & Maxwell 2021)

Dicey AV, Introduction to the Study of the Law of the Constitution (10^th edn, Macmillan 1959)

Elliot M and Thomas R, Public Law (4^th edn, Oxford University Press 2023)

Jowell J, The Changing Constitution (8^th edn, Oxford University Press 2015)

Papworth N, Constitutional and Administrative Law (13^th edn, Oxford University Press 2025)

Raz J, The Rule of Law and itss Virtue (1977) 93 Law Quarterly Review 195

[1] A.V Dicey, Introduction to the Study of the Law of the Constitution (10^th edn, Macmillan 1959)

[2] Joseph Raz, The Rule of Law and its Virtue (1977) 93 Law Quarterly Review 195

[3]  Tom Bingham, The Rule of Law (Allen Lane 2010)

[4] Dicey (n 1)

[5] Entick v Carrington (1765) 95 ER 807

[6] Paul Craig, Administrative Law (9^th edn, Sweet & Maxwell 2021)

[7] Jeffrey Jowell, The Changing Constitution (8^th edn, Oxford University Press 2015)

[8] R(Jackson) v Attorney General [2005] UKHL 56

[9] Human Rights Act 1998

[10] A v Secretary of State for the Home Department [2004] UKHL 56

[11] European Convention on Human Rights, art 5 and 14

[12] Bingham (n 3)

[13] Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374

[14] R (Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36

[15] Liversidge v Anderson [1942] AC 206

[16] Bingham (n 3)

[17] Human Rights Act 1998

[18] R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532

[19] R (UNISON) v Lord Chancellor [2017] UKSC 51

[20] Legal Aid, Sentencing and Punishment of Offenders Act 2012

[21] Nicholas Papworth, Constitutional and Administrative Law (13^th edn, Oxford University Press 2025)

[22] Terrorism Act 2000; Investigatory Powers Act 2016

[23] Public Health (Control and Disease) Act 1984

[24]  Paul Craig, Administrative Law (9^th edn, Sweet & Maxwell 2021)

[25] Mark Elliot and Robert Thomas, Public Law (4^th edn, Oxford University Press 2023)