This is Part 3 of my series The Weaponisation of UK Law. Please find Part 2 (b) below in case you need to first read it or refer back to it. You will also be able to link back to previous articles from there.
The Weaponisation of Law
This is Part 2 (b) of my series “The Weaponisation of UK law”. Please find Part 2 (a) below in case you need to first read it or refer back to it. You will also be able to link back to Part 1 from there.
Previous articles established the conceptual groundwork by showing that governance by consent is structurally impossible within a rule‑over system, and that legality functions as a cultural mechanism for legitimising hierarchical power. Part 2(b) applied that analysis to parliamentary sovereignty, the foundational doctrine that shapes our entire constitutional order, and demonstrated why judicial decisions such as Entick v Carrington can never supply structural limits on a body that defines itself as a sovereign authority. Entick may restrain the executive - although even that is debatable - but it cannot restrain a legislature that claims unlimited law‑making power. Its principles survive only for as long as Parliament chooses to tolerate them. This exposes a deeper truth: in a system where one institution claims unlimited authority, judicial principles cannot supply meaningful limits or protections.
This article now turns to two doctrines most frequently invoked as constitutional safeguards: the Rule of Law and the Separation of Powers. Both are presented as mechanisms that restrain power and protect the individual. Yet when placed within the architecture of parliamentary sovereignty, both doctrines reveal the same fragility as Entick: they do not limit the sovereign source of rule‑over, and as we shall see, they do not meaningfully constrain the executive either.
The Rule of Law: A Doctrine of Reassurance, Not Restraint
The Rule of Law is presented as our constitutional backbone. It appears in judicial speeches, political rhetoric, and public discourse as the principle that ensures fairness, predictability, and limits on arbitrary power. But its meaning is far from fixed.
A. V. Dicey’s formulation remains the canonical version:
No one is above the law
Government powers must have legal authority
Rights are protected through ordinary courts, not constitutional guarantees
This is the version taught in schools, repeated in Parliament, and invoked whenever the system needs to reassure the public that power is constrained.
But Dicey’s formulation contains the seeds of its own undoing. If Parliament can change any law, then “no one is above the law” simply means “no one is above whatever Parliament declares the law to be”. This is not a limit on power but a description of obedience. And in practice, the Rule of Law is rarely applied to those working within the power structure itself. It applies rigorously to the governed, but symbolically - if at all - to the governors.
The Modern Rule of Law: Expanded but Still Subordinate
Modern courts have expanded the doctrine. In R (Unison) v Lord Chancellor [2017]v, the Supreme Court held that access to justice is a constitutional principle. In R (Evans) v Attorney General [2015], the Court emphasised transparency and legality. In R (Bancoult) (No 2) [2008], it stressed rationality and fairness.
But in each of the above cases, the principle is judicial rather than sovereign. Parliament can legislate to reverse any of these outcomes whenever it chooses. It can abolish access to justice, redefine fairness, or authorise conduct that would otherwise be unlawful. A doctrine that can be overridden at will cannot, of course, function as a structural constraint.
Several statutes illustrate this fragility:
Public Order Act 2023 expanded police powers to restrict protest based on noise and disruption.
Illegal Migration Act 2023 dis-applied sections of the Human Rights Act and instructed courts to ignore interim measures of the European Court of Human Rights.
Justice and Security Act 2013 introduced closed material procedures, limiting open justice.
Each was criticised as violating the Rule of Law. Yet each remains valid because Parliament is self‑declared sovereign and able to make or unmake any law it chooses – so here we clearly see that the Rule of Law does not apply to a sovereign power, and it cannot restrain a body that can redefine legality at will.
The Myth That the Rule of Law Binds Ministers
The orthodox account claims that the Rule of Law binds ministers and officials even if it cannot bind Parliament. This is a comforting narrative sold to the public so that they accept a sovereign legislature that calls itself supreme, with the promise that those exercising its executive power remain subject to legality.
But this claim collapses on contact with reality. Ministers routinely act unlawfully and the consequences are negligible. The Rule of Law therefore binds neither Parliament nor the executive in any meaningful sense. Not legally, not culturally, not politically, not practically.
The evidence for this is overwhelming. The last two decades alone provide a catalogue of ministerial illegality, misconduct, and abuse of power:
Matt Hancock’s unlawful “Do Not Resuscitate” decisions during the pandemic, imposed without consultation or consent.
The Post Office Horizon scandal, where ministers ignored evidence of wrongful prosecutions for years.
The expenses scandal, involving systematic misuse of public funds.
Peter Mandelson’s repeated breaches, resulting in resignations but no accountability.
Priti Patel’s bullying findings, overridden by the Prime Minister.
The Windrush scandal, where ministerial policy led to unlawful detentions and deportations.
In each case, the Rule of Law was invoked rhetorically but did not operate as a structural constraint. Even when courts declare ministerial action unlawful, the consequences are limited to:
declarations
quashing orders
procedural corrections
Ministers are not removed, disqualified, or held personally liable. They face no criminal charges. They are never prevented from repeating the behaviour in a slightly altered form.
Examples include:
R (Miller) v Prime Minister [2019] - prorogation unlawful; no sanction or punishment.
R (UNISON) v Lord Chancellor [2017] - tribunal fees unlawful; minister remained in office.
R (Coughlan) v North and East Devon HA [1999] - unlawful removal of care rights; no individual criminal or personal ministerial accountability.
The most serious example of unlawful ministerial behaviour is the decision to invade Iraq in 2003. The Chilcot Inquiry found profound failures in candour, decision‑making, and legality. Hundreds of thousands or people died because of that war. Yet no minister faced legal investigation or criminal accountability for the failures in legality highlighted by the inquiry. If the Rule of Law cannot bind ministers in the context of war, it cannot bind them at all.
The Rule of Law as Psychological Technology
People already sense the truth of that set out above and we hear it in complaints about corrupt politicians or criminal governments. There is a quiet recognition that something is fundamentally wrong. But this understanding never fully takes root because we are all born into a system that presupposes rule‑over as normal, natural, and morally right.
As Antonio Gramsci argued in Selections from the Prison Notebooks (1971), cultural narratives shape what people accept as common sense. Our constitutional mythology performs exactly this function. We are taught to see individual misconduct as the problem, rather than the structure (including the constitution), that produces it.
So, when a minister acts unlawfully, people focus on the minister, not on the architecture that enables, protects, and reproduces such behaviour. The solution is framed as voting for a different party, a different leader, a different face. But this is only a plaster. It never touches the root cause, as the system is designed to shield those who operate it and discipline those who live under it.
The Rule of Law therefore functions culturally as a reassurance mechanism only, within a propaganda sphere. And in this way it is not a supposed legal doctrine. It is, in fact, a form of psychological technology. As Jacques Ellul observed in Propaganda: The Formation of Men’s Attitudes (1962), the most effective propaganda is not the loud, dramatic kind, but the quiet, ambient narrative that becomes part of the cultural environment.
The Rule of Law operates in precisely this way. It embeds comforting assumptions into the public mind: that the system protects them, that power is limited, that safeguards exist. But these messages are not descriptive; they are prescriptive. They tell people how they ought to feel about the system rather than how the system actually functions. As Pierre Bourdieu argued in Language and Symbolic Power (1991), such narratives become a form of symbolic power. In this sense they are a way of presenting hierarchy as neutrality and domination as fairness.
The safeguards the Rule of Law promises are contingent, revocable, and entirely subordinate to sovereign will. They do not apply to the sovereign nor to the executive wielding power on its behalf. The doctrine therefore creates the appearance of constraint while masking the absence of structural limits. This is precisely what effective propaganda is designed to do.
However, the Rule of Law does not merely reassure. It conditions. It trains people to see rule‑over as normal, legitimate, and morally right. It teaches them that accountability is available even when it is fundamentally impossible. And it ensures that when the system fails, people demand new leaders rather than a new structure.
As the Rule of Law is not a mechanism of restraint, it can only ever be a mechanism of comfort – a propaganda narrative designed to persuade the public that power is limited even when the behaviour of those in power demonstrates the opposite. The very fact that ministers routinely escape legal consequences is not then actually a failure of the Rule of Law. It is evidence of its true purpose - a doctrine that applies only to the governed and never to the governors, hence not law at all, nor a rule of it.
The Separation of Powers: A Doctrine of Balance That Does Not Exist
The same structural pattern appears when we turn to the Separation of Powers, the doctrine presented as our constitutional architecture that prevents the concentration of power. In the textbook model, the legislature, executive, and judiciary each perform distinct functions and check one another. In practice, this is not how our governance system operates at all.
The Executive Dominates the Legislature
In England, the executive is drawn from the legislature. The government of the day controls the parliamentary timetable, drafts most legislation, and commands the majority through party discipline.
Examples include:
Parliament Acts 1911 and 1949 reducing the Lords’ ability to block legislation
European Union (Withdrawal) Act 2018 granting sweeping Henry VIII powers
Coronavirus Act 2020 enabling sweeping restrictions, fundamentally altering civil liberties, with minimal scrutiny
Given the above, the executive does not merely influence Parliament. It functionally controls it.
The Judiciary Is Subordinate
Judges can review executive action, such as secondary legislation and ministerial decisions, but only to the extent that Parliament permits. They cannot review Acts of Parliament. This is not a flaw. It is the design of a system that protects the ability of a self‑titled supreme law‑making authority to legislate away any problem it encounters.
Cases such as Miller, Privacy International, and Cart show the judiciary asserting interpretive authority. But Parliament retains the power to reverse any outcome, and in the Judicial Review and Courts Act 2022 did exactly that in response to the Cart case.
Judicial independence is therefore real only in the sense that its power is derivative rather than sovereign. A judge may steer the vehicle, but Parliament owns the vehicle, built the vehicle, and can change or remove the vehicle at any time.
The Myth of Institutional Balance
The Separation of Powers is invoked rhetorically to suggest that:
power is distributed
institutions check one another
no branch dominates
But in a system where Parliament is sovereign and the executive controls Parliament, the supposed separation collapses into a nested hierarchy: the executive at the top, then Parliament, then the courts, and finally the public at the bottom.
What we see is not a separation of powers but a vertically ordered system of authority that depends on the public believing it is separated. Without that belief, the hierarchy loses its legitimacy and collapses into view.
The Psychological Function of the Separation of Powers
The Separation of Powers does not truly exist; only the belief in it does. And that belief arises from the same cultural and psychological conditioning that sustains the Rule of Law. Both doctrines operate as reassurance and comfort mechanisms within a propaganda sphere. They tell the public that power is limited, that institutions restrain one another, and that the system contains internal safeguards. However, this is not a description of reality. It is a narrative designed to secure obedience.
Political theorists have long recognised this dynamic. James Burnham, in The Managerial Revolution (1941), showed how modern states centralise power behind the appearance of plural institutions. Sheldon Wolin, in Democracy Incorporated (2008), described “managed democracy”, where institutional forms remain but their checking functions hollow out, leaving the electorate without any real ability to change state polices. Bertrand de Jouvenel, in On Power (1945), explained how power expands through institutions that are designed to supposedly limit it, arguing that every time society invents a new theory to prevent the absolute rule of the state, Power eventually hijacks that theory to justify its own growth.
These analyses illuminate our constitutional architecture and show that, like the Rule of Law, the Separation of Powers is not a structural safeguard but a cultural script that legitimises rule‑over by presenting hierarchy as balance and domination as order.
The Propaganda Function
The Separation of Powers doctrine also functions as propaganda in several ways:
it creates the appearance of constraint
it reassures the public that power is limited
it legitimises obedience
it masks the absence of genuine consent
it sustains the mythology of constitutional balance
The public must believe that power is separated, because if they recognised the nested hierarchy for what it is, the power structure would lose its legitimacy altogether.
The Deeper Truth
Both the Rule of Law and the Separation of Powers are not false in the sense of being fabricated. They are false in the sense of being incomplete, contingent, and subordinate to a doctrine that claims unlimited authority.
Neither doctrine can restrain a sovereign legislature. Both operate within the architecture of parliamentary sovereignty, not above it. They rarely regulate the exercise of power, and they cannot question its legitimacy. Their function is to therefore manufacture belief and provide public reassurance, rather than restraint.
Belief in rule‑over is produced by a first layer of propaganda. Once that belief is secured, the system adds a second layer of propaganda about the supposed safeguards within that structure. The purpose of both layers is the same: to prevent the public from questioning the legitimacy of rule‑over at all.
A doctrine that does not bind those who wield power, cannot be a constraint on that power and as such both the Rule of Law and the Separation of Powers are nothing other than propaganda and social conditioning to persuade the public that power is limited, when it most certainly is not.
This is difficult for those who believe in our constitution to accept, but constitutional debate is meaningless unless it begins with the framework in which our constitution operates. That framework is rule‑over: master above and subject below. Until this is confronted, nothing within the system can meaningfully change.
Our constitution may contain many fine principles, but any principle can be diluted, overridden, or abolished by a power that declares itself supreme. A constitution cannot protect people from a sovereign authority, and the problems we face today are evidence of this. If our constitution truly constrained power, the power abuses that have become routine, simply could not occur.
The Philosophical Question
Once we see the power structure and the propaganda it exercises to manufacture belief in the same, further questions arise:
Does a rule‑over system require a constitution precisely because it needs a veneer of constraint? A rule‑with system would not require such a document, because authority would arise from consent rather than domination. Does our constitution therefore exist to legitimise rule‑over rather than to limit it? And is the very existence of a constitutional document philosophical evidence of the problem it claims to solve, given that only a system built on rule‑over requires a document to create the appearance of constraint?
In Closing
If the structure of our constitution reveals how power over is protected, the operation of specific laws shows how that power is used. In my next article I turn from exploring the architecture and the doctrines that legitimise and weaponise rule‑over to application - the concrete ways in which law produced by a rule over system is further weaponised in practice. I will examine how regulators allow policy to supersede statute, how public order and terrorism laws are stretched to suppress dissent, how the Filton 6 were prosecuted under terror legislation the jury was never told about, how a barrister was threatened with contempt for reminding jurors of their right to acquit on conscience, how free speech is curtailed under the language of safety, how arms‑export law is manipulated to justify supplying weapons to states accused of atrocities, and how conflicting laws enable selective enforcement and elite impunity. Only by exposing these mechanisms can we understand how deeply the weaponisation of law runs, and why any meaningful alternative must begin with a rule‑with system grounded in natural law and genuine consent.
Part 4 of this series will be published shortly with a link back to this article. In the meantime, thank you for taking the time to read this article. This is a complex subject and I have done my best to simplify it and present it in plain English so that readers can better understand matters and come to their own conclusions
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