The rule of law — Bingham and after

The rule of law is not a decorative constitutional slogan. In English public law it is both a political ideal and a working legal principle: it explains why government must identify legal authority for what it does; why courts presume that Parliament does not legislate against fundamental rights in general or ambiguous words; why access to courts is treated as constitutional rather than administrative; and why even a statutory attempt to insulate official decisions from judicial review is read with suspicion.

For Part IA purposes, the topic sits directly after parliamentary sovereignty and constitutional statutes. The first three weeks should have established three points. First, the United Kingdom constitution is not codified in a single constitutional instrument, but consists of statutes, common law principles, conventions, prerogative powers and constitutional practices. Secondly, orthodox Diceyan sovereignty gives Parliament continuing legal power to make or unmake any law. Thirdly, Thoburn v Sunderland City Council introduced the idea that constitutional statutes are not subject to implied repeal. Week 4 asks how legality constrains government within that constitutional order.

The central modern text is Lord Bingham’s account in The Rule of Law. Bingham did not invent the doctrine. Its ancestry lies in Magna Carta, Coke, the Case of Proclamations, Entick v Carrington, Dicey, and the ordinary techniques of judicial review. But Bingham gave the idea a concise and institutionally plausible form. His eight sub-rules cover accessibility and clarity of law; legal rather than discretionary determination of rights; equality before the law; lawful, fair and reasonable exercise of public power; protection of fundamental rights; access to justice; fair adjudication; and compliance with international law.

The phrase “Bingham and after” is important. Bingham’s account has not remained merely literary. Since the Constitutional Reform Act 2005, the rule of law has express statutory recognition. In cases such as Jackson, A v Secretary of State for the Home Department, Evans, UNISON and Privacy International, the Supreme Court has used legality language to protect judicial review, open justice, access to courts and limits on executive authority. Yet the doctrine remains contested. Does the rule of law merely require formal legality — law must be clear, prospective and applied by courts — or does it incorporate substantive rights? Can courts legitimately use it to resist statutes enacted by Parliament? Is it a principle of interpretation, a ground of review, or a deeper constitutional foundation?

A strong Cambridge answer does not recite Bingham’s eight points and stop. It asks what legal work the rule of law performs in the UK constitution, what its limits are under parliamentary sovereignty, and whether recent case law shows judicial confidence, judicial overreach, or an inevitable adaptation of common law constitutionalism to modern executive government.

The English rule of law tradition is often narrated through a small number of canonical episodes. The danger in exam answers is to treat them as constitutional folklore. Their value is more precise: each episode marks a claim about the subjection of public power to law.

Magna Carta 1215 is symbolically central, though its medieval meaning should not be overstated. Clauses 39 and 40, as later reissued and reinterpreted, came to stand for the proposition that coercive state power requires lawful process. The document was not a modern bill of rights, but it supplied a vocabulary for resistance to arbitrary detention and executive oppression. Its later constitutional life mattered more than its original feudal setting.

Sir Edward Coke’s constitutional thought developed the idea that prerogative power was limited by law. In the Case of Proclamations, the court held that the King could not create new offences or alter the law by proclamation. This is an early statement of a principle that remains basic: executive authority must be traced to a recognised legal source, whether statute, prerogative or common law power. It is also a precursor to the modern insistence that the executive cannot change domestic law without parliamentary authority.

Entick v Carrington is the great eighteenth-century authority. King’s messengers entered Entick’s house and seized papers under a warrant issued by the Secretary of State. The court held the action unlawful because no legal authority justified it. The case is often reduced to the phrase that everything is permitted unless prohibited for citizens, whereas public authorities may act only if authorised. That is a useful shorthand, but the deeper point is evidential and institutional: claims of state necessity do not themselves constitute legal power. If government interferes with liberty or property, the warrant for that interference must be found in law.

Dicey gave the nineteenth-century exposition. For Dicey, the rule of law had three elements: the absence of arbitrary power; equality before the ordinary law administered by ordinary courts; and the constitution as the consequence of ordinary legal rights rather than a higher codified text. His account powerfully captured the common law suspicion of administrative discretion. It also reflected its time. Dicey was hostile to droit administratif and understated the scale of administrative government that would later make discretionary powers inevitable.

The twentieth century forced reconsideration. The welfare state, delegated legislation, tribunals, national security, immigration control, emergency powers and modern regulation all made Diceyan distrust of discretion impractical. Public law responded not by abolishing discretion but by juridifying it: discretionary powers must be used for proper purposes, in accordance with relevant considerations, fairly, rationally and compatibly with rights where applicable. The rule of law became less a denial of discretion and more a discipline upon discretion.

The Human Rights Act 1998 and Constitutional Reform Act 2005 then changed the idiom of legality. The former required public authorities to act compatibly with Convention rights and required courts to interpret legislation compatibly so far as possible. The latter recognised the existing constitutional principle of the rule of law and reconfigured the judicial role after the removal of the Lord Chancellor’s traditional judicial functions. These reforms did not create a codified constitution, but they made the language of constitutional principle more explicit.

Thus, by the time Bingham wrote, the rule of law already had deep historical roots and modern doctrinal consequences. His contribution was synthesis: he showed how legality, rights, equality, fair adjudication, access to justice and international legality could be understood as parts of a single constitutional ideal without pretending that the United Kingdom had ceased to be a parliamentary democracy.

Bingham’s account is the best starting point because it is neither merely formal nor unmanageably moralised. He states the core idea as follows: all persons and authorities within the state, public and private, should be bound by and entitled to the benefit of laws publicly made, taking effect generally in the future and publicly administered in the courts. This captures three ideas at once: government is under law; law must be public and intelligible; and courts are central to its administration.

His eight sub-rules should be known accurately, but the better answer explains their constitutional significance.

First, the law must be accessible and, so far as possible, intelligible, clear and predictable. Secret law, retroactive criminal liability, obscure delegated legislation and unstable executive policy all create rule of law concerns. The point is not that every legal question must be easy. Modern tax, planning, immigration and national security law are necessarily complex. But citizens must be able, with appropriate advice where necessary, to regulate their conduct by reference to legal norms. This requirement underpins the principle of legality in statutory interpretation and the judicial hostility to uncertain criminal offences.

Secondly, questions of legal right and liability should ordinarily be resolved by application of law, not by the exercise of discretion. This does not abolish discretion. Parliament often deliberately confers discretionary powers because rigid rules cannot govern complex administration. But discretion must be legally structured. The modern law of judicial review supplies that structure: powers must be exercised for authorised purposes; relevant considerations must be considered; irrelevant considerations excluded; procedural fairness observed; and irrationality avoided. The rule of law therefore operates not as a prohibition on discretion, but as a demand that discretion remain legally accountable.

Thirdly, the laws of the land should apply equally to all, except where objective differences justify differentiation. Equality before the law was central to Dicey. Its modern form is more sophisticated. Formal equality — the same rule applied to everyone — may entrench substantive disadvantage. Anti-discrimination law therefore modifies rather than rejects the Diceyan idea. Public lawyers should see equality as a rule of law value because arbitrary differentiation by government undermines legality itself.

The case law is best understood as a sequence of constitutional propositions rather than as isolated authorities.

The Case of Proclamations and Entick establish the foundation: the executive cannot alter legal rights or interfere with liberty and property without legal authority. They are not merely antique authorities. They explain the modern starting point for all government action. A minister must identify a legal source for the power exercised; administrative convenience, public interest or security necessity do not themselves confer authority.

Anisminic then transformed the relationship between statutory tribunals and the courts. The House of Lords read an ouster clause narrowly and treated errors going to the legality of a determination as preventing there being a protected “determination” at all. The case is doctrinally technical, but constitutionally simple: the rule of law requires that public bodies remain within the limits of their legal powers, and the courts decide those limits. Later cases have extended this logic so that the distinction between jurisdictional and non-jurisdictional error is now much diminished in administrative law.

M v Home Office is the clearest modern statement that ministers are not above the law. The Home Secretary had acted inconsistently with a court order concerning an asylum seeker. The House of Lords held that injunctions and contempt proceedings could in principle run against ministers. The constitutional importance lies in institutional equality: the Crown and its ministers are subject to the ordinary courts where legal rights are at stake.

A v Secretary of State for the Home Department applied rule of law reasoning to emergency and national security. The House of Lords held that indefinite detention without trial of foreign suspected terrorists under the Anti-terrorism, Crime and Security Act 2001 was incompatible with Convention rights. The majority worked within the Human Rights Act framework; Lord Hoffmann’s separate speech gave the case its constitutional force by arguing that the real threat to the nation’s life came from abandoning its legal values.

Jackson is more difficult. The validity of the Hunting Act 2004 was upheld, but several Law Lords made observations suggesting that parliamentary sovereignty may be a common law construct and that the rule of law might qualify extreme assertions of legislative power. Those observations were obiter, and they should not be overstated. But Jackson is the source of much modern debate about whether the courts would accept an Act abolishing judicial review or elections.

Evans concerned the Attorney General’s statutory power to issue a certificate overriding a judicial decision requiring disclosure of Prince Charles’s correspondence under freedom of information legislation. The Supreme Court quashed the certificate. The case illustrates judicial hostility to executive reversal of judicial decisions. It is not an ordinary merits appeal dressed up as legality; it concerns the constitutional impropriety of a minister setting aside a court’s authoritative determination without clear statutory authority.

UNISON is indispensable. The Supreme Court struck down employment tribunal fees imposed by statutory instrument because they prevented effective access to justice. The reasoning is explicitly constitutional. Rights are not real if citizens cannot vindicate them before courts or tribunals. The case also shows that the rule of law may operate through ordinary administrative law techniques: the Fees Order was ultra vires because the enabling Act did not authorise such interference with access to justice.

Privacy International is the modern ouster clause case. A majority held that a statutory provision did not exclude review for errors of law by the Investigatory Powers Tribunal. The case confirms that courts will require exceptionally clear words before accepting that Parliament has excluded review, and even then some Justices suggested that the rule of law might impose deeper limits. It is the natural successor to Anisminic in the age of national security and specialist tribunals.

See practice questions section below.

See further reading section below.