The Rule of Law has evolved as a check on arbitrary authority throughout the United Kingdom’s history. The contemporary notion of the Rule of Law owes much to the epic confrontations between English kings and their citizens, the power struggle between the United Kingdom and its colonies, notably the American colonies, and the Stuart Kings and Parliament. [1]According to the United Nations, the Rule of Law is a governance principle that holds all individuals, institutions, and entities, public and private, including the state, accountable to laws that are promulgated publicly, equally enforced, adjudicated independently, and consistent with international human rights norms and standards.[2]

Additionally, it encompasses attempts to preserve the law’s supremacy, equality before the law, accountability to the law, its fair implementation, separation of powers, involvement in decision-making, legal clarity, avoidance of arbitrariness, and procedural and legal transparency. Western nations take pride in their well-structured constitutions, which exemplify their commitment to human rights and the Rule of Law. When the Rule of Law’s precise meaning and intended real-world implications are considered, the notion generates significantly more discussion than its ambiguous name implies. Placing the notion of the Rule of Law into the British constitutional framework and defining its legislative mission creates unanticipated complications. Recent developments, including the Brexit discussions and the COVID-19 outbreak, provide a chance to assess the Rule of Law’s genuine meaning and constitutional significance in contemporary Britain.

Parliament passed the Coronavirus Act 2020 last year, vesting the executive branch with broad discretionary powers via delegated legislation. Later that year, the government attempted to amend the Internal Market Bill in a way that was patently in violation of international law. Despite the events’ obvious influence on the Rule of Law, the administration and Parliament were permitted to pursue their own agendas. The examples highlight the rule of law’s obscurity and penchant for neglect. Tamanaha succinctly summarizes the notion, saying that “everyone supports [the Rule of Law], but has differing perspectives on what it is”.[3] The purpose of this article is to examine the degree to which the Rule of Law has endured in contemporary Britain.

Human beings are responsible for law enforcement, and it is in this capacity that they exercise power via legislation. In reality, when Parliament passes a new law, it is not responsible to anyone—not even to previously enacted legislation. Thus, the state acts as both source and subject of law, meaning that the legislator (Parliament) is not always (or even always) bound by the law, given the state’s limitless potential to alter it (since the party forming the executive government must garner a majority of seats in the House of Commons, which forms the parliament). This is because, by definition, government is parliamentary in nature.

References to the Rule of Law made by the Prime Minister and Lord Chancellor They were about evenly split between UK and foreign concerns. All of the attacks on Joanna Cherry QC MP, the Shadow SNP Westminster Group Leader on Justice and Home Affairs, were directed against the United Kingdom. Parliamentary debates would be more nuanced, and legislative proposals would be more compelling. It would be more rigorously scrutinized if members had a greater understanding of Rule of Law ideas. Variety of circumstances and not only to advocate for issues covered by their portfolios.

There were fewer allusions to the Rule of Law governing “affairs concerns” in respect to domestic relations. Domestic matters were the most often discussed subject among the top 10 MPs, in contrast to international affairs. The 2015 report reached a similar conclusion. Regrettably, this shows that MPs’ views on the Rule of Law are more relevant to the developing world than to the United Kingdom. Members made reference to the Rule of Law exclusively in relation to foreign affairs.

Parliament’s power to “make or repeal any legislation,” as Dicey puts it, prohibits the UK from possessing a prescriptive rule of law in the Bingham, Dicey, or Raz form. While Dicey’s idea of parliamentary sovereignty was notable, he also stressed the crucial necessity of the second fundamental principle—the rule of law.[4] Given Parliament’s tendency toward legal supremacy, he argued that the two perspectives are not mutually incompatible. He stressed two Rule of Law provisions in the British constitution: the legislative process’s stringent procedural constraints and the law’s vital Rule of Law in preserving parliamentary sovereignty.[5]

Dicey contended that the Rule of Law limits the executive branch’s discretionary authority while increasing Parliament’s. Indeed, no one can claim that the government’s use of authority is unrestricted. While judicial review is required to ensure the legality, rationality, and procedural propriety of executive and administrative activities, it is not mandated under the Rule of Law. A more accurate word would be “the Rule of Law,” with a particular emphasis on the executive function, the government’s principal rule of law. Additionally, this idea has an excessive degree of prescriptive weight since courts expressly require compliance during judicial review. Schmitt, on the other hand, feels that this idea should not be related to the Rule of Law since it may exist in an absolute monarchy as well, with the monarch’s will serving as the law.[6]

Thus, the Rule of Law and judicial review are apolitical toward the legislative process, which is required for the Rule of Law to work. While the Entick v. Carrington decision established the idea of legality, it is really a subset of the Rule of Law definition, referring to the concept of enforcing laws rather than legislating. As previously stated, this legislation remains subject to Parliament’s enactment and repeal. While the government is unambiguously bound by Parliament’s laws, the latter’s very existence is contingent upon the former. Thus, judicial review evaluates and enforces legislative conformity, thus safeguarding parliamentary sovereignty, that is, the institution’s power, not the legislation itself. According to this position, Parliament’s legislative authority is unrestricted by any principle, and Parliament always triumphs over the rule of law.

If a piece of legislation does not accomplish the purpose for which it was created, Parliament will either legislate another or abolish the current one, regardless of its legitimacy. Thus, the idea cannot be prescriptive since it contradicts the basic premise of parliamentary sovereignty, which allows Parliament to adopt any bill regardless of whether it violates particular rule of law norms. While the current status of the British constitution allows for differentiation of the Rule of Law’s traits, this does not imply that actors are constrained or controlled by them. Parliament’s inability to bind its successors does not render the argument invalid—legislation may be amended within the term of the relevant Parliament. Similarly, as detailed in the next section, Parliament may amend the rules of the legislative process.

Parliament has often shown an eagerness to enact legislation prohibiting people from endangering the state’s interests, notwithstanding their flagrant violation of the Rule of Law. While this may seem to be a rare incident, it reveals Parliament’s capacity to violate the rules of law. The House of Lords determined in Burmah Oil Company v. Lord Advocate that the British government must pay Burmah Oil Company for damage to its oil fields caused by British forces during World War II. Parliament responded by enacting the 1965 War Damage Act, which relieved the British government of retroactive responsibility for war-related losses. This alternative contradicts the focus on prospectively placed by Bingham and Raz in their Rule of Law.[7] Additionally, the 1965 Act defines the authority provided to Parliament by parliamentary sovereignty, which takes precedence over judicial decisions and particular acts. Not only does the constitution guarantee the rule of law, but also the rule of the people, with no legislation surpassing human judgment.

Westminster is a model for the constitution of the United Kingdom. While power is divided across three government departments, Montesquieu’s traditional notion of separation of powers does not apply to the United Kingdom’s political scenario. Indeed, the Westminster Model of governance unites the legislative and executive departments. As a result, the House of Commons majority party forms the government and construes the legislative process. Due to its dual status in the legislative branch, the executive gains de facto sovereignty as a consequence of parliamentary sovereignty. In actuality, the king fulfils the dual role of legislator and monarch under the Rule of Law. While legislation must be approved by both the House of Commons and the House of Lords, the government has shown a capacity to circumvent or even abolish procedural hurdles. The 1911 Parliament Act serves as an excellent illustration of this.

In 1911, Lloyd George’s Liberal government introduced the Parliament Bill, severely restricting the legislative power of the House of Lords. While the 1911 Act was passed in compliance with all procedural requirements, it is clear that the government urged the House of Lords to adopt it in order to further the administration’s political objective of social welfare improvement. This is a typical case of the executive branch amending procedural norms without resorting to a coup d’état. In contrast to Dicey’s theory, which emphasizes procedural safeguards throughout the legislative process, this system lacked any. [8]Due to the fact that the Liberal Democrats and the coalition won the House of Commons with their votes, and the Lords supported the bill in response to the monarch’s threat to restructure the House, the goal of eliminating procedural safeguards for future legislation was largely achieved through political channels.[9] According to this perspective, any statute may be altered to reflect the ruling party’s views, even if the alteration has substantial implications for the legislative process and the structure of Parliament, thus “redefining [Parliament] downwards,” as Baroness Hale phrased it. In the face of popular sovereignty, the rule of law is ineffective. The legislation was not drafted to suit the government’s perspective, but rather to conform to it. While this is a rare occurrence, it is precisely these instances that illuminate our legal reality and the degree to which state actors are entitled to use their powers in practice.