Below is a clear and exam-ready explanation of A.V. Dicey’s Rule of Law and a critical evaluation of its application in the modern UK legal system.
A.V. Dicey’s Concept of the Rule of Law
A.V. Dicey (1885) identified three core principles:
1. Absolute Supremacy of Law (No Arbitrary Power)
Government actions must be authorised by law.
No one can be punished or interfered with unless there is a breach of law established through ordinary courts.
Meaning:
– The state cannot exercise arbitrary or discretionary power.
– People should be governed by fixed rules, not officials’ whims.
2. Equality Before the Law
Every person, regardless of status, is subject to the ordinary courts and ordinary legal processes.
Meaning:
– No separate courts for officials
– No legal privileges for government officers
3. The Constitution as a Result of Common Law
Rights are protected not by a single written document, but by the ordinary courts developing principles of liberty through case law.
Meaning:
– UK constitutional principles evolve through judicial decisions
– The courts are central to protecting rights
Critical Evaluation: Application in the British Legal System Today
Dicey’s ideas remain influential, but modern constitutional realities mean they do not apply perfectly. Below is a balanced evaluation:
1. Absolute Supremacy of Law
Where Dicey’s principle still holds:
Judicial review is strong: courts can strike down executive actions that exceed legal powers.
The Human Rights Act 1998 requires public authorities to act lawfully and proportionately.
Courts have resisted executive overreach (e.g., Miller I and Miller II where the Supreme Court checked the government’s Brexit-related powers).
But there are tensions:
a. Parliamentary Sovereignty limits supremacy of law
Parliament may pass laws that undermine liberties or expand executive power. Dicey saw sovereignty and rule of law as compatible, but in modern practice they can conflict.
b. Wide discretionary powers
Modern government requires broad administrative discretion (e.g., immigration control, policing, counter-terrorism powers).
Dicey opposed this, but it is now unavoidable.
c. Ouster clauses and attempts to restrict judicial review
Recent legislation—such as the Judicial Review and Courts Act 2022—introduced mechanisms that may limit judicial oversight.
This challenges Dicey’s belief in full accessibility to the courts.
2. Equality Before the Law
Strengths:
UK courts treat powerful actors (including ministers) as subject to law.
The judiciary is independent, reinforcing equality before the law.
Weaknesses:
a. Special legal regimes
Certain groups (e.g., asylum seekers, detainees, the armed forces) may fall under specialist tribunals or distinct legal rules.
Dicey would see this as a violation.
b. Financial inequality
Legal aid cuts (notably from the Legal Aid, Sentencing and Punishment of Offenders Act 2012) mean access to justice is unequal.
Formally equal before the law ≠ equal ability to use the law.
c. Government prerogative powers
Ministers still hold significant executive powers not equally available to the public.
3. Constitution Based on the Common Law
Where it holds:
UK courts continue to develop constitutional principles (e.g., legality principle, parliamentary accountability).
Case law remains a central source of constitutional norms.
But Dicey underestimated:
a. Growth of Statute Law
Key constitutional arrangements now depend on Acts of Parliament:
Human Rights Act 1998
Constitutional Reform Act 2005
Scotland, Wales, and Northern Ireland Devolution Acts
Fixed-term Parliaments Act (now repealed)
This diminishes the idea that rights arise mainly from common law.
b. Influence of international law
Until Brexit, EU law had supremacy over domestic law—contrary to Dicey’s constitutional vision.
Even post-Brexit, retained EU law still influences rights.
c. Need for a written constitution?
Because rights rely heavily on political decisions, some argue Dicey’s model fails to offer stable protection compared with written constitutional systems.
Conclusion
Dicey’s Rule of Law remains foundational and symbolically important in the UK constitution.
However, modern governance, parliamentary sovereignty, human rights legislation, and the complexity of administrative law all expose limits in Dicey’s original formulation.
In short:
✔ The UK continues to uphold aspects of Dicey’s rule of law
✘ But significant deviations exist due to the practical realities of a modern state
Dicey’s ideas still set an ideal standard, but they no longer describe the British legal system with complete accuracy.
A.V. Dicey (1885) identified three core principles:
1. Absolute Supremacy of Law (No Arbitrary Power)
Government actions must be authorised by law.
No one can be punished or interfered with unless there is a breach of law established through ordinary courts.
Meaning:
– The state cannot exercise arbitrary or discretionary power.
– People should be governed by fixed rules, not officials’ whims.
Every person, regardless of status, is subject to the ordinary courts and ordinary legal processes.
Meaning:
– No separate courts for officials
– No legal privileges for government officers
Rights are protected not by a single written document, but by the ordinary courts developing principles of liberty through case law.
Meaning:
– UK constitutional principles evolve through judicial decisions
– The courts are central to protecting rights
Dicey’s ideas remain influential, but modern constitutional realities mean they do not apply perfectly. Below is a balanced evaluation:
Where Dicey’s principle still holds:
Judicial review is strong: courts can strike down executive actions that exceed legal powers.
The Human Rights Act 1998 requires public authorities to act lawfully and proportionately.
Courts have resisted executive overreach (e.g., Miller I and Miller II where the Supreme Court checked the government’s Brexit-related powers).
But there are tensions:
a. Parliamentary Sovereignty limits supremacy of law
Parliament may pass laws that undermine liberties or expand executive power. Dicey saw sovereignty and rule of law as compatible, but in modern practice they can conflict.
b. Wide discretionary powers
Modern government requires broad administrative discretion (e.g., immigration control, policing, counter-terrorism powers).
Dicey opposed this, but it is now unavoidable.
c. Ouster clauses and attempts to restrict judicial review
Recent legislation—such as the Judicial Review and Courts Act 2022—introduced mechanisms that may limit judicial oversight.
This challenges Dicey’s belief in full accessibility to the courts.
Strengths:
UK courts treat powerful actors (including ministers) as subject to law.
The judiciary is independent, reinforcing equality before the law.
Weaknesses:
a. Special legal regimes
Certain groups (e.g., asylum seekers, detainees, the armed forces) may fall under specialist tribunals or distinct legal rules.
Dicey would see this as a violation.
b. Financial inequality
Legal aid cuts (notably from the Legal Aid, Sentencing and Punishment of Offenders Act 2012) mean access to justice is unequal.
Formally equal before the law ≠ equal ability to use the law.
c. Government prerogative powers
Ministers still hold significant executive powers not equally available to the public.
Where it holds:
UK courts continue to develop constitutional principles (e.g., legality principle, parliamentary accountability).
Case law remains a central source of constitutional norms.
But Dicey underestimated:
a. Growth of Statute Law
Key constitutional arrangements now depend on Acts of Parliament:
Human Rights Act 1998
Constitutional Reform Act 2005
Scotland, Wales, and Northern Ireland Devolution Acts
Fixed-term Parliaments Act (now repealed)
This diminishes the idea that rights arise mainly from common law.
b. Influence of international law
Until Brexit, EU law had supremacy over domestic law—contrary to Dicey’s constitutional vision.
Even post-Brexit, retained EU law still influences rights.
c. Need for a written constitution?
Because rights rely heavily on political decisions, some argue Dicey’s model fails to offer stable protection compared with written constitutional systems.
Dicey’s Rule of Law remains foundational and symbolically important in the UK constitution.
However, modern governance, parliamentary sovereignty, human rights legislation, and the complexity of administrative law all expose limits in Dicey’s original formulation.
In short:
✔ The UK continues to uphold aspects of Dicey’s rule of law
✘ But significant deviations exist due to the practical realities of a modern state
Dicey’s ideas still set an ideal standard, but they no longer describe the British legal system with complete accuracy.