Dicey's Rule of Law

The major influences on the understanding of the rule of law in the UK are the accounts in Dicey’s An Introduction to the Law of the Constitution in 1885, and the twentieth-century critiques of him, most recently that in 2011 by Lord Bingham. Dicey attempted to reconcile the principles of the rule of law and the fact that Parliament is sovereign, and can make and unmake any law whatsoever, by stressing the independent position the courts enjoy under the constitution: Dicey 1885, 413–14 set out below at 28. But his analysis did not reflect the reality of our constitution at the end of the nineteenth century and, as the twentieth century progressed, it became even less valid.

Dicey did not find reconciliation between the principles of the rule of law and parliamentary sovereignty in the operation of constitutional conventions. He stated that conventions are not rules of law which will be enforced in the courts. They are generally rules for determining the exercise of the prerogative by the executive to ensure that Parliament gives effect to the will of what he regarded as the true political sovereign, the majority of the electors: Dicey 1885, 24, 429, 439–40. By 1914 he had revised his position to the extent of recognising that although not rules of law, conventions are obeyed ‘by the force of law’ because breaches of convention would almost immediately lead to conflict with the law and the courts: Dicey 1885, 445–46. The flaw, as ECS Wade observed in his introduction to the tenth edition, is that it is possible to enact a convention in statutory form and yet exclude it from enforcement in the court: Dicey 1885, xxix. Miller 1 discussed at 12 and 124–5 is a striking modern illustration of the fact that a convention is not justiciable and enforceable in the courts even if, as the Sewel convention in that case was, it is enshrined in statute.

Many consider that the twentieth-century critiques mean that Dicey’s approach no longer warrants detailed analysis: see for example De Smith, at 30. But the way it, and the responses to it, have shaped our understanding of the rule of law means that a brief summary of both remains a useful backdrop to the discussion in the other chapters of this book.

Dicey recognised that the terms ‘rule of law’, ‘government of law’ and ‘supremacy of law’ are full of vagueness and ambiguity. He sought to deal with this by stating that, when applied to the British constitution, the terms have three meanings. They are:

1.  Supremacy of Regular Law Established in Ordinary Courts as Opposed to Arbitrary Discretionary Power

No man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. (188)

Dicey later summarised this first meaning in the following words:

[The rule of law] means … the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government. (202)

2.  Equal Subjection of All to the Ordinary Law of the State and the

Jurisdiction of the Ordinary Courts, and No Exceptional Powers to State Officials

Dicey stated that:

[n]o man is above the law, [and] (what is a different thing) … every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. (193) His later summary of this was that the rule of law means:

equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts; the ‘rule of law’ in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals. (202–03)

3. The General Principles of the Constitution are the Result of Judicial Decisions Determining the Rights of Private Persons in Particular Cases Brought Before the Courts and Not a Written Constitution

[T]he constitution is pervaded by the rule of law on the ground that the general principles of the constitution (as for example the right to personal

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liberty, or the right of public meeting) are with us as the result of judicial decisions determining the rights of private persons in particular cases brought before the courts; whereas under many foreign constitutions the security (such as it is) given to the rights of individuals results, or appears to result, from the general principles of the constitution. (195–96)

The main elements of the twentieth-century critique of each of these three meanings of the rule of law in the British constitution, from those by Sir Ivor Jennings 1933 and William Robson 1928 to the more recent ones such as those by Craig 1990, Loughlin 1992, Bingham 2011, and Sedley 2015, chapter 14, can be summarised as follows:

•      The first meaning reflects Dicey’s failure to recognise the existence of the discretionary power which existed in his day or to consider the legal limitations on such power. Discretionary power became much more pervasive during the twentieth century as the modern state (to a greater or lesser extent) regulated the economy and provided social services. These involved the delegation to ministers and officials of wide powers including the ability to make policy choices limited only by an increasingly skeletal legislative framework. The consequence is that Dicey’s analysis, always incomplete, is now even less comprehensive.

•      As to the second meaning, it may be the case today that no individual or official is above the law, and no one should be penalised save for a breach of the law. But when Dicey 1885 stated (at 202–03) that the principle ‘excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens’, he grossly underestimated the problems of a British citizen seeking redress against the government even in private law matters: see Bingham 2002, 51. Many of the impediments were only removed by the Crown Proceedings Act 1947, which first sought to subject ministers and government departments to the rules of liability governing citizens and non-governmental entities. Even then, some differences remained, notably the prohibition of injunctive relief against the Crown in civil proceedings. It was only in 1993 that it was held that injunctions could be granted against ministers and other officers of the Crown in judicial review proceedings: M v Home Office [1994] 1 AC 377.

•      The second meaning also overlooked the fact that statute and prerogative give governmental and other bodies powers that private individuals do not have, such as the right to arrest, to enter property, and to regulate business and professional conduct. ‘All are equally subject to the law, though the law to which some are subject may be different from the law to which others are subject’: Wright 1945, 4.

•      The first and second meanings also reflect Dicey’s focus on individual liberty, property rights and personal private law rights arising from breaches of contracts, as a result of civil wrongs (‘torts’), or as a result of the defendant’s unjust enrichment. They fail to address the differences between the role of the courts in determining the merits of disputes between private persons and entities about such private law matters, and their more limited supervisory role over the acts and omissions of governmental and other public bodies. They thus fail to take account of administrative law even as it was during Dicey’s life.

•      The third meaning neglects the extent to which rights are given by legislation and qualified by legislation.

•      More fundamentally, the third meaning is difficult to reconcile both with a purely formal interpretation of Dicey’s account and with the sovereignty of Parliament, the other pillar of Dicey’s analysis: see Craig 1977, 470 and Allan 2001, 13 & 20, and 2013, 102–104. That sovereignty means, as Lord Bingham 2011 at 168 accepted, that legislation incompatible with, for example, personal liberty and freedom of expression can be enacted and, unless insufficiently clear, must be enforced by the courts, even if retrospective. As explained earlier, Dicey saw the limits on Parliamentary sovereignty as conventional, that is ultimately political rather than legal. This was even so for common law rights such as rights of access to a court, not to be imprisoned save by the law of the land, to property, and to freedom of expression, the first two having their origins in clauses 33 and 40 of the Magna Carta of 1215. They were regarded as important in his time and are today often described as common law constitutional rights and are among the rights protected by the ECHR and the HRA.

For Lord Bingham (see 174) the rule of law is an ideal worth striving for to secure good governance, rather than a fixed set of principles. But he accepted that Parliament can legislate in a way that infringes its principles.

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Despite his concern at the way the checks and balances in the constitution have been undermined by the rise in executive power, he rejected the argument that in exceptional circumstances the courts could modify the principle of Parliamentary sovereignty, see chapter one at 9. His critique of the formal conception of the rule of law is discussed in chapter two at 20–21. His analysis also sought to address the criticism that the principles as stated by Dicey and others were too uncertain. He did so by identifying the ingredients of the over-arching and otherwise over-general principle more precisely. He considered that those ingredients included the following eight sub-principles:

(1)      The law must be accessible and so far as possible intelligible, clear and predictable.

(2)      Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion.

(3)      The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.

(4)      Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers, and not unreasonably.

(5)      The law must afford adequate protection of fundamental human rights.

(6)      Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve.

(7)      Adjudicative procedures provided by the state should be fair.

(8)      The rule of law requires compliance by the state with its obligations in international law as in national law.

 Lord Bingham accepted that others would come up with different principles or would, as I seek to do in the remainder of this book, express them differently.

F or Sir John Laws 2021, at 16, Lord Bingham’ s  list of substantive requirements ‘ a re, in truth, a suggested list of the virtues of a decent nation ’ , but the list  ‘ fails to capture the distinct quality or characteristic which the law –  the Rule of Law –  provides or contributes’ .  He considered Lord Bingham ’ s statement, set out above at 21, as just  ‘ an assertion ’ . For Sir John, the distinct quality or characteristic is the independent and impartial mechanism for law enforcement, applying objective standards.

The difference may refl ect a difference between an analysis heavily infl uenced by the evidence of history, as Lord Bingham ’ s is, and one heavily infl uenced by philosophy, as Sir John Laws ’ s is. Both are important in understanding our position today. Sir John invokes implicit support by Dicey 1885, who at 413 – 14, stated:

 Parliament is supreme legislator, but from the moment Parliament has uttered its will as lawgiver, that will becomes subject to the interpretation put upon it by the judges …  who are infl uenced …  by the general spirit of the common law, are disposed to construe statutory exceptions to common law principles in a mode which would not commend itself either to a body of offi cials, or to the Houses of Parliament, if the Houses were called upon to interpret their own enactments.

 Notwithstanding the powerful critique of Dicey ’ s approach, we shall see that this part of what he said chimes with the approach of courts to the principles of procedural fairness and legality mentioned in chapter one and discussed at 34 and 83–95 and in chapters fi ve, eight and nine.