The Rule of Law And Parliamentary Supremacy: Has Constitutional Lawin the UK Sufficiently Controlled the Government’s Actions

Abstract

The principle of the rule of law has empowered the judiciary, which consists of the courts, to hold government officials accountable. Although the courts’ application of the principle has been partially successful, limitations remain in the principle’s ability to limit the Government’s use of power. This article argues that, despite judicial triumphs, parliamentary supremacy and the Government’s use of statutory powers continue to prevent adequate control over the Government’s actions. This risks unfairness under the law. Statute and case law will be assessed to explore the extent of the control that has been enforced over the Government’s actions by the courts. Recommendations on how the courts may improve their approach to controlling the Government’s actions to ensure fairness will be provided.

Introduction

A.V Dicey proposed that the rule of law consisted of three elements: punishment towards people should be decided under ordinary law, not arbitrary decisions, no one is above the law because everyone is equal under the law, and Judges protect liberty through case law.[1] Cases such as A v Secretary of State for the Home Department (the “Belmarsh” case)[2] demonstrated that the Government is equally bound to the law because they cannot make arbitrary decisions that infringe liberty.[3] However, cases such as R v Inland Revenue Commissioners, ex parte Rossminster Ltd[4] portrayed that the courts cannot always hold the Government liable for their actions.[5] These inconsistencies raise questions about the rule of law’s efficacy in upholding equality under the law, suggesting that the law has been insufficient at controlling the Government’s actions. The courts’ triumphs and failures will be considered.

Research Methodology

This article will utilise a doctrinal approach. Statutes, such as section 23 of the Anti-terrorism, Crime and Security Act 2001 (ATCSA 2001)[6] and section 1 of the Special Immigration Appeals Commission Act 1997 (SIACA 1997) will be assessed.[7] Section 20C of the Taxes Management Act 1970 (TMA 1970) will also be examined.[8] Case law where the courts have successfully limited the Government’s actions will be evaluated.[9] Additionally, unsuccessful attempts in controlling the Government’s actions will be analysed.[10]

Punishment should be subject under ordinary law

Firstly, Dicey states that people should only be punished by ordinary courts for breaches of ordinary law, establishing a theoretical safeguard by claiming that the Government cannot punish someone at their discretion without legal authority.[11] However, this element was challenged by concerns over national security. Section 23 of the ATCSA 2001 enabled the Government to detain foreign nationals suspected of terrorism without trial to Belmarsh Prison,[12] raising concerns that executive powers may exceed legal procedures under ordinary law. [13] Scholars argue that this weakened judicial scrutiny over executive actions by undermining the constitutional right to a fair trial.[14] Despite statutory authority, the Belmarsh[15] case established that indefinite imprisonment of suspected foreign nationals without trial contradicts the rule of law, highlighting that statutory authority cannot legitimise arbitrary punishments that threaten liberty.[16] This indicates that the judiciary can intervene to ensure that punishment remains based on legal authority derived from ordinary law rather than executive discretion,[17] upholding Dicey’s principle.[18]

However, the statutory powers exposed a limitation by proving that Parliament could enact legislation that broaden the scope of powers that permit executive discretion.[19] Therefore, Parliament’s legislative supremacy can expand governmental authority beyond judicial inspection.[20] The introduction of the Special Immigration Appeals Commission (SIAC) under section 1 of the SIACA 1997 highlights the tension.[21] This is because its reliance on classified evidence limits transparency with courts.[22] Although Belmarsh[23] confirmed that courts can exert control,[24] governmental procedures, like SIAC, weaken judicial review by operating outside the legal framework that courts utilise to determine punishment.[25] These tensions indicate that, although the rule of law theoretically empowers courts to ensure punishment is enforced under ordinary law, the expansive powers provided to the Government restrict the courts from holding the executive accountable in practice.[26] This could be improved by enhancing judicial oversight, enabling courts to exert further control over executive action.[27]

Equality under the law

Beyond the court’s role in limiting the Government’s enforcement of arbitrary punishments, Dicey’s second principle argued that the rule of law certifies that no one, including the Government, is above the law.[28] This ensures equality under the law, which was stated in Entick v Carrington[29] after the Earl of Halifax and his messengers were held liable for trespass because he did not have the legal authority to issue a search warrant.[30] However, this principle is undermined when executive action is authorised by statute. Under section 20C of the TMA 1970, search warrants were conducted, and officers could seize anything that may be evidence of tax fraud.[31] This raised issues about the scope of executive powers under statutory authority by exposing possible violations of individual rights, such as privacy.[32] Despite the concerns, the House of Lords upheld the legitimacy of the search warrants in Rossminster Ltd[33] because it was presumed that the warrants followed the statute’s wording.[34] This illustrated a tension between parliamentary supremacy and the rule of law by demonstrating that, although the precedent in Entick[35] prohibited executive action without legal authority,[36] statutory authority can legalise executive actions that would ordinarily be disallowed by the judiciary.[37] Consequently, parliamentary supremacy may subvert the rule of law by authorising executive powers that escape judicial review, hindering the law from adequately assigning liability to the Government, thus diminishing equality under the law.[38]

Judges protect liberty

Aside from upholding equality under the law, Dicey’s third principle contends that the rule of law empowers the judiciary to protect liberty by scrutinising executive conduct through case law.[39] This ensures that executive powers are exercised within the law, which was shown in R (on the application of Anufrijeva) v Secretary of State for the Home Department[40] when it was ruled that benefits cannot be terminated without notice.[41] This portrayed the courts’ ability to uphold procedural fairness and protect personal freedoms.[42] However, the courts have historically avoided challenging executive actions that undermine liberty if national security is involved. This was evident in Liversidge v Anderson[43] when the House of Lords upheld the Home Secretary’s detainment of Liversidge without trial under the regulations of the Emergency Powers (Defence) Act 1939.[44] Despite Anufrijeva[45] portraying that modern courts are more willing to enforce legal protection against executive discretion,[46] Liversidge[47] reveals that judicial protection has historically been limited by executive actions that were permitted by statute.[48] Hence, parliamentary supremacy continues to weaken the safeguards of the rule of law by authorising executive actions with statute, revealing that the law has not sufficiently controlled the Government’s actions when it receives statutory authority.[49]

Recent Developments

• The Dissolution and Calling of Parliament Act 2022 (DCPA 2022) restored the Prime Minister’s power to call a general election at any time and reestablished the Monarch’s power to dissolve Parliament on the Prime Minister’s advice.[50]
• Ongoing debates to codify executive powers to enhance transparency, ensuring that the judiciary can scrutinise executive actions precisely.[51]

Suggestions / Way Forward

• Enhanced statutory clarity to assist courts in scrutinising executive actions.[52]
• Codifying executive powers to establish a legal foundation for governmental actions.[53]
• Judicial review could be expanded to enable courts to challenge executive actions during national emergencies or when state actions are authorised by statute.[54]
• Strengthen parliamentary scrutiny over executive actions to ensure that the Government is answerable to Parliament, thus enabling the courts to hold the Government accountable when it oversteps its authority.[55]

Conclusion

The courts’ increased willingness to enforce accountability against executive actions that infringe individual rights signifies that constitutional law has progressed in limiting the Government’s actions.[56] These advancements are evident when compared to the courts’ historical reluctance to challenge executive discretion that undermined personal freedom.[57] However, parliamentary supremacy continues to shield executive actions from liability.[58] The previous and current authorisation of executive discretion, such as the SIACA 1997[59] and the DCPA 2022, symbolise how statutory authority can enable executive powers to override judicial advancements.[60] Consequently, this prevents sufficient control over executive actions. This ongoing difficulty suggests that reforms, such as codifying executive powers,[61] strengthening parliamentary scrutiny,[62] and expanding judicial review into non-judiciable matters remain necessary to ensure legal protection and uphold executive accountability.[63] These reforms would strengthen the law’s ability to protect individual freedoms against the Government’s discretion.

Bibliography

Statute:

• Anti-terrorism, Crime and Security Act 2001.
• Dissolution and Calling of Parliament Act 2022.
• Special Immigration Appeals Commission Act 1997.
• Taxes Management Act 1970.

Case law:

• A v Secretary of State for the Home Department [2005] UKHL 71, [2006] 2 AC 221.
• Entick v Carrington [1765] 95 ER 807.
• Liversidge v Anderson [1942] AC 206.
• R (on the application of Anjufrijeva) v Secretary of State for the Home Department [2003] UKHL 36, [2004] 1 AC 604.
• R v Inland Revenue Commissioners, ex parte Rossminster Ltd [1980] AC 952.

Books:

• Parpworth N, Constitutional and Administrative Law (12^th edn, OUP 2022).

Journal articles:

• Collins D, ‘Judicial Review & Parliamentary Supremacy’ (2020) 104 (1) Bolch Judicial Institute 44.
• Elliot M, ‘United Kingdom: Parliamentary sovereignty under pressure’ (2004) 2 (3) International Journal of Constitutional Law 545.
• Kavanagh A, ‘Constitutionalism, counterterrorism, and the courts: Changes in the British constitutional landscape’ (2011) 9 (1) Oxford University Press and New York University School of Law 172.
• Lui E, ‘A limited case for the closed material procedure: natural justice, open justice and the clear advantage variation’ (2024) 44 (4) Legal Studies 1.
• Monaghan C, ‘’The Court of Appeal … Appears to Have Overlooked the Limitations to its Competence, Both Institutional and Constitutional, to Decide Questions of National Security’: Shamima Begum, the Supreme Court and the Relationship Between the Judiciary and the Executive’ (2021) 26 (2) Judicial Review 1.

Websites:

• publishing.service.Gov.UK, ‘Judicial Review Reform – The Government Response to the Independent Review of Administrative Law’ (18 March 2021) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/975301/judicial-review-reform-consultation-document.pdf> accessed 25 September 2025.
• Parliament.UK, ‘Report published on the use of scrutiny of emergency powers during the COVID-19 pandemic’ (10 June 2021) <https://committees.parliament.uk/committee/172/constitution-committee/news/155755/report-published-on-the-use-and-scrutiny-of-emergency-powers-during-the-covid19-pandemic/> accessed 25 September 2025.
• org.UK, ‘House of Lords Report Urges Reform of the UK Treaty Scrutiny’ (23 September 2025) <https://www.hansardsociety.org.uk/blog/treaty-scrutiny-addressing-the-accountability-gap> accessed 25 September 2025.
• Parliament.UK, ‘Mapping the Path to Codifying – or not Codifying – the UK’s Constitution’ (2 July 2012) <https://publications.parliament.uk/pa/cm201213/cmselect/cmpolcon/writev/mapping/cde02.htm> accessed 25 September 2025.
• Parliament.UK, ‘The operation of the Special Immigration Appeals Commission (SIAC) and the use of Special Advocates’ (22 March 2005) <https://publications.parliament.uk/pa/cm200405/cmselect/cmconst/323/323i.pdf> accessed 24 September 2025.
• org.UK, ‘Judicial Review: Proposals for Reform’ (22 April 2021) <https://publiclawproject.org.uk/content/uploads/2021/04/210429-PLP-JR-consultation-response.pdf> accessed 24 September 2025.
• ac.UK, ‘To Codify or Not to Codify? Lessons from Consolidating the United Kingdom’s Constitutional Statutes’ (19 March 2015) <https://www.ucl.ac.uk/social-historical-sciences/sites/social_historical_sciences/files/162.pdf> accessed 25 September 2025.

[1] Neil Parpworth, Constitutional and Administrative Law (12^th edn, OUP 2022) 43.

[2] [2005] UKHL 71, [2006] 2 AC 221.

[3] A v Secretary of State for the Home Department [2005] UKHL 71, [2006] 2 AC 221.

[4] [1980] AC 952.

[5] R v Inland Revenue Commissioners, ex parte Rossminster Ltd [1980] AC 952.

[6] Anti-terrorism, Crime and Security Act 2001 (ATCSA 2001) s 23.

[7] Special Immigration Appeals Commission Act 1997 (SIACA 1997) s 1.

[8] Taxes Management Act 1970 (TMA 1970) s 20C.

[9] A v Secretary of State for the Home Department [2005] UKHL 71, [2006] 2 AC 221.

[10] R v Inland Revenue Commissioners, ex parte Rossminster Ltd [1980] AC 952.

[11] Parpworth (n1) 43.

[12] ATCSA 2001 s 23.

[13] Aileen Kavanagh, ‘Constitutionalism, counterterrorism, and the courts: Changes in the British constitutional landscape’ (2011) 9 (1) Oxford University Press and New York University School of Law 172, 180.

[14] Kavanagh (n13) 180.

[15] [2005] UKHL 71, [2006] 2 AC 221.

[16] A v Secretary of State for the Home Department [2005] UKHL 71, [2006] 2 AC 221.

[17] A v Secretary of State for the Home Department [2005] UKHL 71, [2006] 2 AC 221.

[18] Parpworth (n1) 43.

[19] ATCSA 2001 s 23.

[20] Mark Elliott, ‘United Kingdom: Parliamentary sovereignty under pressure’ (2004) 2 (3) International Journal of Constitutional Law 545, 552.

[21] SIACA 1997 s 1.

[22] Publications.Parliament.UK, ‘The operation of the Special Immigration Appeals Commission (SIAC) and the use of Special Advocates’ (22 March 2005) <https://publications.parliament.uk/pa/cm200405/cmselect/cmconst/323/323i.pdf> accessed 24 September 2025.

[23] [2005] UKHL 71, [2006] 2 AC 221.

[24] A v Secretary of State for the Home Department [2005] UKHL 71, [2006] 2 AC 221.

[25] Edward Lui, ‘A limited case for the closed material procedure: natural justice, open justice and the clear advantage variation’ (2024) 44 (4) Legal Studies 1, 16.

[26] Chris Monaghan, ‘’The Court of Appeal … Appears to Have Overlooked the Limitations to its Competence, Both Institutional and Constitutional, to Decide Questions of National Security’: Shamima Begum, the Supreme Court and the Relationship Between the Judiciary and the Executive’ (2021) 26 (2) Judicial Review 1, 11.

[27] Publiclawproject.org.UK, ‘Judicial Review: Proposals for Reform’ (22 April 2021) <https://publiclawproject.org.uk/content/uploads/2021/04/210429-PLP-JR-consultation-response.pdf> accessed 24 September 2025.

[28] Parpworth (n1) 43.

[29] [1765] 95 ER 807.

[30] Entick v Carrington [1765] 95 ER 807.

[31] TMA 1970 s 20C.

[32] Parpworth (n1) 47.

[33] [1980] AC 952.

[34] R v Inland Revenue Commissioners, ex parte Rossminster Ltd [1980] AC 952.

[35] [1765] 95 ER 807.

[36] Entick v Carrington [1765] 95 ER 807.

[37] R v Inland Revenue Commissioners, ex parte Rossminster Ltd [1980] AC 952.

[38] David Collins, ‘Judicial Review & Parliamentary Supremacy’ (2020) 104 (1) Bolch Judicial Institute 44, 46.

[39] Parpworth (n1) 43.

[40] [2003] UKHL 36, [2004] 1 AC 604.

[41] R (on the application of Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36, [2004] 1 AC 604.

[42] R (on the application of Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36, [2004] 1 AC 604.

[43] [1942] AC 206.

[44] Liversidge v Anderson [1942] AC 206.

[45] [2003] UKHL 36, [2004] 1 AC 604.

[46] R (on the application of Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36, [2004] 1 AC 604.

[47] [1942] AC 206.

[48] Liversidge v Anderson [1942] AC 206.

[49] Collins (n38) 46.

[50] Dissolution and Calling of Parliament Act 2022 (DCPA 2022) s 2.

[51] Publications.Parliament.UK, ‘Mapping the Path to Codifying – or not Codifying – the UK’s Constitution’ (2 July 2012) <https://publications.parliament.uk/pa/cm201213/cmselect/cmpolcon/writev/mapping/cde02.htm> accessed 25 September 2025.

[52] Assets.publishing.service.Gov.UK, ‘Judicial Review Reform – The Government Response to the Independent Review of Administrative Law’ (18 March 2021) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/975301/judicial-review-reform-consultation-document.pdf> accessed 25 September 2025.

[53] UCL.ac.UK, ‘To Codify or Not to Codify? Lessons from Consolidating the United Kingdom’s Constitutional Statutes’ (19 March 2015) <https://www.ucl.ac.uk/social-historical-sciences/sites/social_historical_sciences/files/162.pdf> accessed 25 September 2025.

[54] Committees.Parliament.UK, ‘Report published on the use of scrutiny of emergency powers during the COVID-19 pandemic’ (10 June 2021) <https://committees.parliament.uk/committee/172/constitution-committee/news/155755/report-published-on-the-use-and-scrutiny-of-emergency-powers-during-the-covid19-pandemic/> accessed 25 September 2025.

[55] Hansardsociety.org.UK, ‘House of Lords Report Urges Reform of UK Treaty Scrutiny’ (23 September 2025) <https://www.hansardsociety.org.uk/blog/treaty-scrutiny-addressing-the-accountability-gap> accessed 25 September 2025.

[56] A v Secretary of State for the Home Department [2005] UKHL 71, [2006] 2 AC 221.

[57] Liversidge v Anderson [1942] AC 206.

[58] R v Inland Revenue Commissioners, ex parte Rossminster Ltd [1980] AC 952.

[59] SIACA 1997 s 1.

[60] DCPA 2022 s 2.

[61] UCL.ac.UK (n53).

[62] Hansardsociety.org.UK (n55).

[63] Committees.Parliament.UK (n54).