Authored By: Myles Sager
University of Hull
Introduction.
Is the rule of law truly a powerhouse of the constitution which acts as a twin pillar of the constitution, or is it merely an over-subscribed theory with little practical merit? The rule of law as a principle is not singularly defined by any one person or institution. Although there have been numerous attempts, including A.V. Dicey and Lord Bingham. The rule of law is often described as a twin pillar of the constitution, alongside parliamentary sovereignty, but can this apply only in theory or does the principle have practical merit alongside its parliamentary partner? This article finds that although it is possible the rule of law may be overrun by the more powerful and dominant partner, parliamentary sovereignty, for now it operates with practicality and importance within the governance of the country and judicial system.
What is the Rule of Law?
Dicey wrote generally about this principle, stating “In England no man can be made to suffer punishment or to pay damages for any conduct not definitely forbidden by law; every man’s legal rights or liabilities are almost invariably determined by the ordinary Courts of the realm, and each man’s individual rights are far less the result of our constitution than the basis on which that constitution is founded”[1]. This portrays Dicey’s three main principles that he uses to refer to the Rule of Law, including the principle of Habeas Corpus, where no one can be imprisoned without far justification, everyone is equal in the eyes of the law, and that the constitution is protected by ‘ordinary law’ which is that created and upheld by the courts. These principles lay the foundation of the meaning of the Rule of Law for future theorists to expand upon. One such individual was Lord Bingham, who established eight principles and corroborated Dicey’s view of the Rule of Law. Lord Bingham’s Sir David Williams lecture[2] illustrates his interpretation clearly. The predictability and clarity of the law is the first of Lord Bingham’s ‘sub-rule’ of the Rule of Law. The next is that rights and liabilities must be determined by the law, continuing Dicey’s views on ordinary law. Again, continuing with support for Dicey’s view, equality before the law is the third sub-rule. Lord Bingham somewhat controversially argues in his fourth sub-rule that human rights protection should be enshrined within the Rule of Law. He also argues for lawful exercise of power, akin to the Habeas Corpus principle. Access to justice for all, meaning anyone can argue their case in court, be that against the government with judicial review or private matters, such as private claims. Lord Bingham also argues for fairness in procedures, meaning that everyone has a right to a fair hearing and trial. Finally, Lord Bingham argues for complete compliance with international law.
Arguments for the importance of the Rule of Law
Numerous cases build the foundations for the importance of the Rule of Law in the governance of the UK. One such case is Entick v Carrington[3]. It rules that the Earl of Halifax and the man working for him Carrington acted unlawfully. This case was a landmark case as it dealt with a lord working on behalf of the government, issuing a general warrant without the consent of the judiciary. The ruling of this action as unlawful was one of the first actions taken by the judiciary to prevent the executive arm of state from overreaching. This meant that the Rule of Law as a principle was being used in full force to balance the power of the overmighty state against the people. Another landmark case for the Rule of Law is Re M[4]. This case portrays the principle that no man is above the law. Re M again deals with a government attempting to circumvent the courts and go beyond their allowed power. In this case, the Home Secretary attempted to deport an immigrant against their will, specifically against a court order instructing him to cease this. Re M therefore shows the courts protecting the rights of the people and preventing injustice alongside the principles of the Rule of Law. The case of Jackson[5] provides a theoretical look at the ways in which the judiciary may overrule the courts. The case itself ruled in favour of the government, however, in many obiter dicta of the Lord Justices the case was made that judges could overrule Parliament if they were seen to be acting unlawfully, overriding parliamentary sovereignty. This includes Lord Steyn who stated that the “pure and absolute”[6] aspect of Diceyan parliamentary sovereignty is no longer applicable in the modern world, and that should the situation arise where Parliament was interfering in fundamental judicial principles, such as judicial review, then the judiciary would intervene and stop Parliament. Baroness Hale concurred, stating “’The courts will treat with particular suspicion (and might even reject) any attempt to subvert the rule of law by removing governmental action affecting the rights of individuals from all judicial scrutiny”[7]. These both show the explicit claims of two of the most influential Law Lords that they would if required subvert parliamentary sovereignty in order to preserve the rule of law. This clearly shows that the rule of law is more than merely theoretical, but that it can and has been applied practically, even to such an extent where it has been threatened against overmighty governments and Parliament[8].
Arguments against the prevalence of the Rule of Law
Thus far, this article has presented the rule of law as steadfast in the face of political opposition and instability, however, there are some faults and many other challenges it faces. One such political challenge the rule of law faces is from an ideological standpoint. The communist theorist Karl Marx was a greatly outspoken opponent of the rule of law and saw it as “bourgeois legalism” and not fit for a communist society[9]. On the opposite end of the political spectrum, the rule of law is condemned by some on the political right as being “feeble and incoherent because it ignores core, existential realities of political life”[10]. If ideologies can think that they can govern without the rule of law, or with a modified version of it in the UK, then it is clear that such ideologies think that the rule of law in the UK is merely theoretical and not in practice, or it would be sufficient for any ideology’s needs. The Henry VIII powers allow ministers to create secondary legislation with little to no intervention for Parliament, creating issues for the rule of law and worries of an overmighty government with presidential style executive orders, working in contrast with the UK’s Parliamentary System. This is seen in the European Union (Withdrawal) Act 2018[11], where ministers may make decisions on whether aspects of EU retained law is “appropriate”, rather than an objective necessary test[12]. This clearly creates issues for the rule of law, as presidential systems, such as that in the US are said to have a “disdain for the rule of law”[13], and so if governments are attempting to turn the system of governance from the current Parliamentary System to one of a Presidential System, then it is clear the rule of law could be subverted and if the judiciary is powerless to stop this then it must be true that the rule of law is nothing more than theory, with little to no practical application. However, for now, it cannot be said that the current system has been changed to a Presidential System, or that the judiciary absolutely could not prevent this. Although this may prove difficult as the unelected judiciary would find it hard to gain legitimacy over the elected Parliament.
Conclusion
In conclusion, although there are many challenges and issues to do with the rule of law, it does still contribute greatly to the running and governance of the country. This is seen in many aspects, but especially through the obiter dicta of the judiciary, consistently portraying the power available to them, even if they do not need to use it, as seen in Jackson, or in rulings against the government, such as in Re M. The country does still need to tread the fine line of the balance of powers between the rule of law and parliamentary sovereignty, ensuring that the judiciary do not over extend their powers and overrule the UK’s elected officials in public policy matters, but also that the government and Parliament do not become overmighty, which would inevitably lead to judicial intervention. Therefore, this article finds that the rule of law is practically applicable but warns that it should not be overused by an overzealous judiciary, lest the public and parliamentary backlash may result in the limitation or eradication of the essential powers that the rule of law grants the judiciary.
Bibliography
Primary Sources
- Entick v Carrington(1765) 2 Wils 275, 19 State Tr 1029 1065, 95 ER 807, [1558-1774] All ER Rep 41
- European Union (Withdrawal) Act 2018
- Re M (a Minor)[1995] Lexis Citation 4241
- R (on the application of Jackson) v A-G[2005] UKHL 56
Secondary Sources
- Bingham, Lord, ‘Rule of Law’, The Cambridge Law Journal, 66, No. 1, (2007), pg. 67-85
- Dicey, A. V., ‘Introduction to the Study of the Law of the Constitution’, (MacMillan and Co., 10th Edition, 1915), pg. 40
- Huq, A. Z., ‘The Rule of Law Condemned: Critics and Crises’, Oxford Academic, (2024), pg. 87
- Justice, ‘The State We’re In: Addressing Threats and Challenges to the Rule of Law’, (2023) <https://justice.org.uk/work/the-state-were-in-addressing-threats-challenges-to-the-rule-of-law>, accessed 07/07/26
- Larkin, S., ‘Debunking the Idea of Parliamentary Sovereignty: The Controlling Factor of Legality in the British Constitution’, Oxford Journal of Legal Studies, 28, No. 4, (2008), pg. 709 – 734
- Marx, K., ‘Civil Wars in France’, (English Edition, Zodiac, 1871), pg. 2 – 40
- van Lochem, P., ‘Legislation against the rule of law – an introduction’, The Theory and Practice of Legislation, (2017) 95–100.
[1] Albert Venn Dicey, ‘Introduction to the Study of the Law of the Constitution’, (MacMillan and Co., 10th Edition, 1915), pg. 40
[2] Lord Bingham, ‘Rule of Law’, The Cambridge Law Journal, Vol. 66, No. 1, (2007), pg. 67-85
[3] Entick v Carrington (1765) 2 Wils 275, 19 State Tr 1029 1065, 95 ER 807, [1558-1774] All ER Rep 41
[4] Re M (a Minor) [1995] Lexis Citation 4241
[5] R (on the application of Jackson) v A-G [2005] UKHL 56
[6] ibid
[7] ibid
[8] Stuart Larkin, ‘Debunking the Idea of Parliamentary Sovereignty: The Controlling Factor of Legality in the British Constitution’, Oxford Journal of Legal Studies, Vol. 28, No. 4, (2008), pg. 709 – 734
[9] Karl Marx, ‘Civil Wars in France’, (English Edition, Zodiac, 1871), pg. 2 – 40
[10] Aziz Z. Huq, ‘The Rule of Law Condemned: Critics and Crises’, Oxford Academic, (2024), pg. 87
[11] European Union (Withdrawal) Act 2018
[12] Justice, ‘The State We’re In: Addressing Threats and Challenges to the Rule of Law’, (2023) <https://justice.org.uk/work/the-state-were-in-addressing-threats-challenges-to-the-rule-of-law>, accessed 07/07/26
[13] Peter van Lochem, ‘Legislation against the rule of law – an introduction’, The Theory and Practice of Legislation, (2017) pg. 95–100.
