Is the rule of law meaningless unless it is backed by judicial enforcement?
Introduction
The rule of law is widely regarded as a fundamental principle of the UK constitution. Yet its meaning and practical application remain contested, particularly in relation to who ensures it is upheld. This essay critically examines whether the rule of law is meaningless unless it is backed by judicial enforcement, or whether this presents a false dichotomy that overlooks the contributions of other constitutional actors. In doing so, it engages with the growing role of the judiciary in enforcing legal and constitutional limits — especially through judicial review — and examines how this intersects with concerns about democratic legitimacy and the separation of powers.
While some argue that unelected judges should not be empowered to override or constrain decisions made by elected representatives, others maintain that judicial enforcement is essential to preventing arbitrary executive power and ensuring access to justice. Through an analysis of key theoretical contributions, notably from Dicey and Lord Bingham, as well as leading case law including Entick v Carrington, Miller (No. 1), and Miller (No. 2), the essay argues that the courts play an indispensable role in giving real substance to the rule of law. Nevertheless, it also considers the role of non-judicial mechanisms such as parliamentary scrutiny, independent watchdogs, and civil society in upholding legal accountability. Ultimately, the essay contends that while the rule of law can be supported by a range of institutional checks, it is judicial enforcement that most consistently ensures constitutional principles are given practical effect.
Foundations of the Rule of Law
Rules governing human society have existed for centuries and are reflected in religious texts such as the Christian Bible, as well as in foundational legal documents like the Magna Carta of 1215, which laid early groundwork for principles later associated with the rule of law. The implementation of social control by a recognised authority necessarily involves mechanisms of accountability, including penalties for non-compliance. These two elements — the existence of rules and a system of checks and consequences — create a corresponding need for individuals or institutions to create, interpret, apply, and enforce those rules in a consistent and impartial manner. In the modern era, these functions are carried out by the three branches of government: Parliament, the executive, and the judiciary.
In the eighteenth century, French political philosopher Montesquieu, writing in The Spirit of the Laws (1748), argued that liberty is best preserved when the powers of government are separated into three distinct branches: the legislature, the executive, and the judiciary. His theory of the separation of powers remains foundational to modern constitutional thought. Montesquieu warned that the concentration of these powers in a single body or individual would lead to despotism. While the United Kingdom does not adopt a strict separation of powers, Montesquieu’s model continues to influence debates about institutional independence and constitutional balance.
The most influential domestic articulation of the rule of law comes from A.V. Dicey, whose 1885 work An Introduction to the Study of the Law of the Constitution remains foundational. Dicey identified three key principles: first, that no one may be punished except in accordance with the law; second, that all individuals are equal before the law; and third, that constitutional principles emerge through judicial decisions rather than being codified in a formal document. Dicey’s formulation reflects a formal, classical conception of the rule of law — one that prioritises legal certainty and equality, but has been criticised for overlooking substantive rights and the growing complexity of modern public law. Over a century later, Lord Bingham recognised these foundations but argued that Dicey’s view was too narrow. In The Rule of Law (2010), he expanded the concept to include access to justice, protection of human rights, and legal clarity — offering a more substantive vision suitable for a modern constitutional democracy.
Judicial Oversight of Executive Power
The judiciary in the United Kingdom is organised across different jurisdictions and levels of appeal, and plays a vital role in upholding the rule of law by applying both statutes enacted by Parliament and common law principles developed over centuries. While the judiciary is often associated with the adjudication of criminal trials, one of its most constitutionally significant functions is to hold public authorities accountable through a process known as judicial review, which ensures that executive actions comply with the law. This role has attracted increasing public attention in recent years, particularly as the courts have become more active in enforcing constitutional limits. In doing so, the judiciary reflects the principles advocated by Montesquieu and A.V. Dicey — namely, the importance of the separation of powers and the subjection of all individuals and institutions to the rule of law.
An early and foundational example of the judiciary enforcing the rule of law against executive overreach is found in Entick v Carrington [1765]. In this case, agents of the Secretary of State entered the home of John Entick and seized private papers under a general warrant that had not been authorised by statute or common law. The court, led by Lord Camden, ruled that the executive had acted unlawfully, emphasising that state officials may not interfere with private property without clear legal authority. Lord Camden famously stated that “if it is law, it will be found in our books,” reinforcing the idea that no person or authority, including the state, is above the law. This judgment remains a cornerstone of the British constitutional tradition, illustrating that the courts have long been prepared to uphold individual rights and restrain unlawful executive action. It reflects the Diceyan principle that arbitrary power is inconsistent with the rule of law and continues to be cited as a powerful authority on the limits of executive discretion.
In R (Miller) v The Prime Minister [2019], the UK Supreme Court was asked to determine whether the Prime Minister’s advice to the Monarch to prorogue Parliament — effectively suspending it for five weeks — was lawful. The Prime Minister claimed the prorogation was to prepare for the Queen’s Speech, a task that would ordinarily require only a few days. The Court held that, contrary to the ruling of the Divisional Court, the matter was justiciable, as the exercise of prerogative powers raised issues of constitutional principle. It was therefore open to the Court to assess the lawfulness of the Prime Minister’s actions. The judgment concluded that the prorogation was unlawful, as it had the effect of frustrating the ability of Parliament to carry out its constitutional functions without reasonable justification — particularly at a time of exceptional constitutional importance: the UK’s departure from the European Union. The Supreme Court declared the prorogation void, meaning that Parliament had not been lawfully suspended and was entitled to resume its work. The case demonstrated the significance of the judiciary’s role in enforcing the rule of law: checks and balances apply not only to private individuals and organisations, but also to the executive, including the Prime Minister.
Challenges with Judicial Enforcement
Unlike in some U.S. states or Switzerland, judges in the UK are not elected. Rather, they are appointed through an independent process overseen by the Judicial Appointments Commission (JAC). This raises questions about democratic legitimacy, particularly given their increasingly prominent constitutional role — but this is often countered by arguments emphasising judicial impartiality and independence. In the UK, this is not generally considered a constitutional flaw, but rather a philosophical debate about the balance between democratic accountability and the rule of law. The judiciary is often described as playing a 'parental' role: ensuring fairness by upholding legal principles for all who come before it.
A recent and highly publicised instance of perceived judicial overreach came during the Brexit process, specifically in relation to the triggering of Article 50 of the Treaty on European Union. In R (Miller) v Secretary of State for Exiting the European Union [2017], the High Court ruled that the government could not use prerogative powers alone to begin the withdrawal process from the EU — Parliamentary approval was required. In response, sections of the media, most notably The Daily Mail, branded the judges as “enemies of the people,” suggesting they were defying the will of the 17.4 million people who had voted to leave the EU. The Supreme Court later upheld the decision, affirming the constitutional requirement for parliamentary authorisation. The case sparked a broader public debate about the role of unelected judges in political matters and the justification for their authority to constrain government action.
Crucially, the then Lord Chancellor, Liz Truss, was criticised for failing to defend the judiciary, despite her statutory duty under the Constitutional Reform Act 2005 to uphold judicial independence. The matter was eventually closed when the Independent Press Standards Organisation (IPSO) received thousands of complaints and addressed concerns raised about The Daily Mail's reporting. Ultimately, the episode served to highlight both the strength and vulnerability of the rule of law — it affirmed the judiciary’s role in upholding constitutional limits, but also exposed the tensions that arise when courts enter the political spotlight.
Following the controversy surrounding Miller (No. 1), it is worth noting that there have also been instances where courts have declined to rule definitively, particularly in matters of high political or ethical sensitivity, highlighting the judiciary’s awareness of the potential for ‘overstepping’. In R (Nicklinson) v Ministry of Justice [2014], the Supreme Court was asked to consider whether the ban on assisted suicide under the Suicide Act 1961 was incompatible with Article 8 of the European Convention on Human Rights (the right to private and family life). While the majority recognised the seriousness and moral complexity of the issue, they ultimately deferred to Parliament as the appropriate forum for such a controversial and ethically charged decision. This case exemplifies the judiciary’s institutional self-restraint, underscoring that the rule of law does not always necessitate judicial activism.
However, contrast can be drawn with R (UNISON) v Lord Chancellor [2017], where the Supreme Court took a firm and interventionist stance in defence of access to justice. The government’s imposition of employment tribunal fees was found to be unlawful, as it effectively prevented individuals from exercising their legal rights. In striking down the fees regime, the Court held that access to the courts is a fundamental constitutional right, rooted in both common law and the rule of law itself. This decision demonstrates that, while the judiciary is careful not to intrude into political questions, it will intervene decisively when core constitutional principles are at stake.
Other Guardians of the Rule of Law
While judicial enforcement is central to upholding the rule of law, it does not operate in isolation. Parliament plays a key role through its scrutiny of executive action — particularly via select committees, opposition questioning, and legislative oversight. Instruments like the Human Rights Act 1998 and the Constitutional Reform Act 2005 empower courts, but they also reflect broader political commitments to legal accountability. In addition, independent public bodies — such as the Parliamentary and Health Service Ombudsman, the Equality and Human Rights Commission, and the Information Commissioner’s Office — contribute to legal accountability and transparency. Civil society, legal advocacy groups, and a free press also act as informal yet powerful checks on state power by exposing illegality and holding government actors to public account. While these mechanisms may lack the binding force of judicial decisions, they form part of a wider constitutional ecosystem that reinforces the rule of law and ensures it is not merely a matter of judicial discretion.
Conclusion
The rule of law remains a cornerstone of the UK’s constitutional framework, but its vitality depends on mechanisms that give it practical effect. This essay has shown that while political and institutional checks — such as parliamentary scrutiny, public watchdogs, and civil society — play a meaningful role, it is judicial enforcement, particularly through judicial review, that offers the most consistent and authoritative safeguard against unlawful state power. Cases such as Entick, Miller (No. 2), and UNISON illustrate the courts’ capacity to restrain the executive and protect individual rights, while decisions like Nicklinson reveal judicial awareness of constitutional boundaries.
Recent case law confirms that this role remains central. In Majera, the Supreme Court reaffirmed that ministers must comply with judicial orders, while in Begum, it exercised institutional restraint in matters of national security. These examples reflect a judiciary conscious of its constitutional function — neither overreaching nor abdicating its duty. Although unelected judges may attract criticism when intervening in democratic processes, their selective but principled enforcement of legal standards ensures that power is exercised within lawful limits. Ultimately, while other institutions contribute to the integrity of the rule of law, it is judicial enforcement that most reliably transforms it from principle into practice — a truth that remains as vital today as ever.