Introduction
The concept of the rule of law, as articulated by A.V. Dicey, constitutes a foundational element of the British constitution. Dicey posited that the rule of law incorporates three core principles: the absolute supremacy of regular law as opposed to arbitrary power, equality before the law, and the constitution resulting from ordinary law. These principles, detailed in his seminal work "An Introduction to the Study of the Law of the Constitution," stipulate that all individuals, including the government, are subject to and accountable under the law. The technical requirements of Dicey's rule of law include legal certainty, predictability, and the exclusion of discretionary authority. Its formal language emphasizes that no one is above the law, ensuring consistent and equitable application.
Dicey's Core Tenets of the Rule of Law
Dicey's articulation of the rule of law is primarily built upon three key tenets. First, it stipulates the absolute supremacy or predominance of regular law. This principle dictates that individuals should not be subject to the arbitrary exercise of power but rather should be governed by established and predictable legal rules. It establishes that power cannot be exercised through broad discretion but through application of established legal norms. Dicey argued against the existence of arbitrary or discretionary authority, which he saw as a threat to individual liberty and legal certainty.
Secondly, Dicey proposed equality before the law. He maintained that all individuals, regardless of their social status or position, must be equally subject to the ordinary law of the land. He opposed separate legal systems or special courts for government officials, stating that all should be answerable to the same courts and legal procedures. This promotes impartiality and undermines the potential for preferential treatment or discrimination under the law.
Thirdly, and distinct from most nations at the time, Dicey’s theory maintains that the constitution is the result of ordinary law. Rather than being derived from specific constitutional documents or institutions, the constitutional principles in England, according to Dicey, are the outcome of judicial decisions and the regular process of law-making. This highlights the importance of case law and legislative acts in developing and shaping the constitutional framework.
Modern Challenges to Dicey's Rule of Law
While Dicey’s rule of law provides an influential framework for understanding constitutional principles, modern developments have presented numerous challenges to his original conception. The rise of administrative law and delegated legislation has introduced mechanisms through which executive bodies can make rules and regulations, which may not always align with the rigidity of Dicey’s conception. Furthermore, the expansion of international law, particularly the influence of EU law, has placed further strain on the notion of absolute national legal supremacy.
For example, the European Communities Act 1972 and subsequent cases such as Factortame established that EU law takes precedence over conflicting national laws, a direct challenge to the traditional idea of parliamentary sovereignty as detailed by Dicey. In Factortame, Lord Bridge acknowledged that “whatever limitation of its sovereignty Parliament accepted when it enacted the ECA 1972 was entirely voluntary”. The courts were thus obliged to dis-apply legislation inconsistent with EU law, directly undermining a key tenet of Dicey's model by suggesting that UK law is not the absolute highest law.
The Rule of Law and Parliamentary Sovereignty
The relationship between the rule of law and parliamentary sovereignty is a contested area within constitutional theory. As the dominant power in the British constitutional arrangement, Parliament has the capacity to make or unmake any law. However, this notion of parliamentary sovereignty, as defined by Dicey, conflicts with the idea of the rule of law, which limits the exercise of all powers, including parliamentary ones.
In Jackson, Lord Hope stated that “Parliamentary sovereignty is no longer, if it ever was, absolute” and that “the rule of law enforced by the courts is the ultimate controlling factor.” This illustrates the way in which the judiciary has sought to limit parliamentary power through an enhanced conception of the rule of law. The courts thus ensure that even Parliament operates within a framework of legality and is not entirely unlimited. This evolution from Dicey’s view suggests that the rule of law acts as a form of constraint on sovereignty, creating a framework for how that sovereignty must be exercised. The rule of law, therefore, is not simply a constraint on the executive, but a restriction on the legislature as well.
The Rule of Law and Constitutional Statutes
The idea of constitutional statutes also complicates the application of Dicey's model. Cases like Thoburn v Sunderland City Council have confirmed that certain statutes possess a “constitutional nature.” This means that these statutes cannot be implicitly repealed, requiring express repeal to be modified or eliminated. The 1972 Act was acknowledged in Thoburn to be a statute of this kind, illustrating a legal constraint on parliamentary power that Dicey did not address. Such “manner and form” restrictions placed on the legislative process further limit Parliament’s ability to act without considering existing constitutional norms. This creates a hierarchy of statute, something that traditional Diceyan thought does not account for.
Additionally, the use of “Henry VIII” clauses, which permit the executive to amend statutes, also provides a challenge. These clauses, while intended to streamline legislative processes, grant the executive a power to alter Acts of Parliament that may circumvent a need for full parliamentary debate and approval. As Barber and Young discuss, this can be seen as a “limited fetter” on future Parliaments. Such examples demonstrate a departure from Dicey’s idea of absolute parliamentary lawmaking capacity.
Devolution and the Rule of Law
Devolution, the transfer of power to devolved legislatures in Scotland, Wales, and Northern Ireland, presents another challenge to the Diceyan view of the rule of law and sovereignty. Whilst the UK Parliament retains legal supremacy over these bodies, convention and political reality necessitate a different kind of relationship. The Sewel Convention, which requires a legislative consent motion for Westminster to legislate in devolved areas, has been recognized in the Scotland Act 2016. The Miller case showed that whilst it is a convention, it does not alter the fact that the UK Parliament retains legal sovereignty.
This creates a situation where parliamentary sovereignty is shared rather than unilaterally held, presenting both legal and political complications. As Elliott’s submission states, this sharing, rather than sacrificing of legislative power must be considered a factor in the modern concept of sovereignty. The legal entitlement of Parliament does not mean it is always politically or constitutionally appropriate to act on that entitlement.
Conclusion
A.V. Dicey’s concept of the rule of law provides a foundational but limited basis for comprehending the British constitution. His three core principles—supremacy of law, equality before the law, and the constitution as a result of ordinary law—remain relevant, but are tested by contemporary constitutional realities. The influence of EU law, constitutional statutes, devolved governance, and administrative practices have created a more complex constitutional environment, one not fully accounted for within his original theory.
The modern view is that the rule of law acts as a mechanism for checking and balancing power rather than serving as an absolute guarantee against arbitrary authority. As illustrated by various judgments including those in Factortame, Thoburn, and Jackson, the judiciary now recognizes the limitations of Dicey's model of sovereignty and the importance of judicial intervention to protect constitutional principles. Whilst parliamentary sovereignty remains a legal reality, its practice is now mediated through the rule of law, making sure it functions within the constraints that are fundamental to the functioning of a democratic society. It is this interaction between the rule of law and other constitutional principles that defines the modern British constitution, far from Dicey's original conceptions.
