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Public law essay – ‘Critically assess the importance of the rule of law in the UK constitution’
...
In its most
basic form, it is described as the requirement of state officials across the Legislature,
Executive and the Judiciary, to act in accordance with the law, and that every citizen is
subject to the law, including legislators
...
Within our
unwritten constitution, we have many basic constitutional legal principles, e
...
the Separation
of Powers, the Independence of the Judiciary and finally, the Rule of Law
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It is also of critical importance,
particularly in contemporary society, that those that have the power to do so, legislate in a just
manner, in a way that is compliant with moral standards
...
g
...
Further, explicitly, s
...


In this way, this essay will discuss the importance of the rule of law within the UK
constitution by considering different perspectives provided by AV Dicey, on the rule of law in
the pre-welfare state, economist and philosopher Friedrich Hayek, American jurist Harry
Jones and the different formal and substantive conceptions of the doctrine
...
He was
quoted to have said ‘the rule of law is contrasted with every system of government based on
the exercise by persons in authority of wide, arbitrary or discretionary powers of constraint’5
and defined the rule of law in three sections: firstly ‘Everybody is equal under the ordinary
1

Ian Loveland, Constitutional Law, Administrative Law, and Human Rights (7th edn, Oxford University Press,
2006) ch 3; page 50
2
1998
3
1995
4
AV Dicey, Introduction to the Study of the Law of the Constitution (10th edn, Palgrave Macmillan, 1982)
5
Ibid

1

law’, ‘No person is above the law’ and, lastly, ‘Individual rights are protected better by the
common law than by written constitution
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He maintained that governmental institutions must operate
within a strict, legal framework
...
6
This proceeded him to highlight the significance of an independent judiciary, with a role
paramount in deciding whether the executive has legislated arbitrarily, and thus, in breach of
the rule of law
...
7

A pertinent case within establishing the need for restriction on legislative capacity of the
executive under statute or common law provisions was Entick v Carrington
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If it is not to
be found there, it is not law
...

An example of the doctrine being put into practice within case law was illustrated in A (FC)
and others (FC) (Appellants) v Secretary of State for the Home Department (Respondent)10 in
which Lord Bingham stressed the importance of judicial independence ‘the function of the
independent judges charged to interpret and apply the law is universally recognised as a
cardinal feature of the modern democratic state, a cornerstone of the rule of law itself’
...


In addition, debates on the role of the rule of law within our constitution were detailed by
Herbert Hart and Lon Fuller
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This focused on ‘formal’ conceptions of the rule of
law
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These standards maintain that laws must be
‘general, promulgated, prospective, clear, non-contradictory, possible to follow, constant
through time and displaying a congruence between official action and declared rules’
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We will now consider theories of the doctrine in relation to the welfare state
...
12 Both favoured
a government restricted by a structure containing the extent of its legal capacity, and a
government having minimal involvement in social institutions such as the provision of health
services, thus, leaving room for citizens to exercise self-autonomy
...
He favoured predictability, in such a way that citizens are able to
foresee the extent of the executive’s authority
...
Contrasting to Hayek, Jones
argued the rule of law is a ‘relative political value’ and that, although this function of the
doctrine may result in restraints on personal autonomy, it is justified for public interest
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It endeavours to encapsulate the boundaries in
which government bodies can legislate, in order to not be in excess of their authority and thus,
in breach of the people’s rights
...


11

Friedrich Hayek, The road to serfdom (Routledge Classics, 1944)
Ian Loveland, Constitutional Law, Administrative Law, and Human Rights (7th edn, Oxford University Press,
2006) ch 3; page 56
13
Ian Loveland, Constitutional Law, Administrative Law, and Human Rights (7th edn, Oxford University Press,
2006) ch 3; page 57
14
Ibid
15
Ian Loveland, Constitutional Law, Administrative Law, and Human Rights (7th edn, Oxford University Press,
2006) ch 3; page 58
12

3

Bibliography

Primary sources
Cases:
Entick v Carrington [1765] 19 State Tr 1029

Statutes:
Constitutional Reform Act 1995, s

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