The rule of law — Bingham and after

The rule of law is one of the central organising ideas of The Individual and the State. In the first three weeks of the Durham module you have considered the sources of the constitution, parliamentary sovereignty, and constitutional statutes after Thoburn. Week 4 asks a different, but connected, question: what standards must government satisfy when it acts? The rule of law supplies the vocabulary in which that question is normally answered. It is not a single cause of action. It is not a written constitutional code. It is a constitutional principle which informs statutory interpretation, the supervision of executive power, the treatment of fundamental rights, and the courts’ resistance to attempts to exclude legal accountability.

Lord Bingham’s account is the usual modern starting point because it is both doctrinally serviceable and normatively ambitious. His core proposition is that 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. From that general proposition he derived eight principles: accessible and intelligible law; questions of legal right ordinarily resolved by law rather than discretion; equality before the law; lawful, fair, reasonable and good-faith exercise of public powers; adequate protection of fundamental human rights; practical means of resolving civil disputes without prohibitive cost or delay; fair adjudicative procedures; and compliance with international law. Those propositions are not all of the same kind. Some are formal requirements of legality; some are procedural; some are substantive; and the international law limb remains the most constitutionally controversial.

For Durham purposes, the importance of Bingham is not that his list is examinable as a catechism. It is that his account helps you connect constitutional theory with judicial review doctrine. Entick v Carrington stands for the executive’s need for legal authority. Anisminic and Privacy International show the courts’ reluctance to accept that Parliament intended legally erroneous public bodies to be immune from review. Simms and Pierson show the principle of legality: Parliament may legislate contrary to fundamental rights, but only with sufficiently clear language. UNISON shows that access to courts is not merely a private benefit but a structural precondition of legality. Miller and Cherry illustrate that even prerogative power is limited by constitutional principle.

A strong answer should therefore avoid two mistakes. First, do not treat the rule of law as empty rhetoric. It has concrete doctrinal consequences. Secondly, do not treat it as an all-purpose judicial licence to prefer their own constitutional morality to enacted law. Its precise force depends on context: statutory wording, constitutional principle, institutional competence, and the intensity of the rights or legality concern.

The English rule of law tradition is often narrated through Dicey, but its roots are older. Magna Carta is symbolically important, though its modern legal effect is narrow. More practically significant is the long struggle to confine executive power to legal authority. The seventeenth-century conflicts over prerogative taxation, imprisonment and dispensing powers produced the constitutional assumption that government must point to law. By the eighteenth century, Entick v Carrington gave that assumption a classic private-law expression: state officers who entered property and seized papers without legal warrant were trespassers. The state had no reservoir of inherent coercive authority outside law.

Dicey’s nineteenth-century formulation gave the principle its canonical British shape. He identified three ideas: no person should be punished or made to suffer except for a breach of law established before ordinary courts; no person is above the law and all are subject to the ordinary courts; and constitutional rights are largely the result of ordinary law rather than a higher written constitution. Dicey’s account was powerful, but partial. It tended to understate administrative government, ignored wide statutory discretion, and presented the ordinary courts as the primary guardians of liberty at a time when the modern regulatory state was only beginning to take form.

The twentieth century complicated Dicey’s picture. Parliament conferred broad powers on ministers and administrative bodies. Tribunals and regulators acquired practical authority over housing, immigration, welfare, planning, taxation and national security. The rule of law could no longer mean merely that executive officers were liable in trespass when they entered property unlawfully. It had to address discretionary power, statutory interpretation, procedural fairness, access to adjudication, and the institutional relationship between courts and administration. The development of modern judicial review after Ridge v Baldwin, Padfield, Anisminic and CCSU reflected that transition.

Bingham’s contribution belongs to this modern phase. His 2006 lecture and later book sought to make the rule of law neither an empty slogan nor a full written constitution under another name. He rejected the view that legality is satisfied merely by commands laid down in recognisable form. At the same time, he treated the rule of law as a disciplined constitutional principle with legal consequences, not as a general aspiration that everything in public life be good, wise or just. His account is attractive in the UK because it fits an uncodified constitution: principles operate through interpretation, common law rights, institutional duties, and judicial review, rather than through a single entrenched text.

The phrase in this week’s title, Bingham and after, matters. Since Bingham, the courts have invoked the rule of law in increasingly concrete contexts. In Jackson, senior judges suggested that the rule of law may be an ultimate constitutional principle. In UNISON, access to justice was treated as essential to the constitutional function of courts. In Privacy International, the Supreme Court interpreted an ouster clause narrowly against the background assumption that legal errors by public bodies should be reviewable. In Miller and Cherry, the court treated limits on prerogative power as justiciable where constitutional fundamentals were at stake. The modern rule of law is thus not only a theory. It is a working constitutional grammar.

The first principle is legality in the narrow sense: government must act under legal authority. This is the Entick principle. A minister, police officer, local authority or regulator must identify a legal source for coercive action. That source may be statute, delegated legislation, common law power, prerogative power, or occasionally a power incidental to property or contract. But it must exist, and it must be used within its legal limits. This connects directly with later judicial review grounds: illegality, improper purpose, relevant and irrelevant considerations, fettering discretion, error of law, and jurisdictional error.

The second principle is prospective, accessible and intelligible law. Bingham’s concern was that citizens should be able to plan their conduct by reference to norms they can discover and understand. Retrospective criminalisation is the clearest vice, but the principle also matters where delegated legislation is obscure, unpublished guidance effectively determines outcomes, or broad discretionary schemes operate without adequate standards. The rule of law is not offended merely because law is complex. Modern tax, immigration and welfare law will often be technical. The vice is avoidable opacity in matters affecting legal rights and obligations.

The third principle is that legal rights and liabilities should ordinarily be resolved by application of law, not unfettered discretion. The modern administrative state cannot function without discretion, and Diceyan hostility to discretion is unrealistic. The constitutional point is narrower: discretion must be structured by legal standards, exercised for proper purposes, and subject to review for legality, fairness and rationality. Bingham’s formulation should therefore be read with the case law on abuse of discretion, not as a demand that Parliament eliminate judgement from administration.

The leading cases show that the rule of law is not a single doctrine but a family of doctrines. Entick v Carrington remains the foundational authority for legality in the sense of legal authorisation. State officers who searched and seized without lawful warrant were liable. The enduring lesson is simple: coercive executive action is lawful only if justified by law. That principle remains vital in modern contexts such as surveillance, detention, immigration enforcement and police powers.

CCSU modernised the picture by confirming that the source of a power is not decisive. Prerogative powers may be reviewable where their subject matter is justiciable. The case also organised the grounds of judicial review around illegality, irrationality and procedural impropriety. It therefore connects rule-of-law theory to the structure of public law technique.

Anisminic is the great anti-ouster authority. The House of Lords treated an apparently final determination as legally ineffective where the tribunal had misconstrued its powers. The case is often taught as expanding the concept of jurisdictional error; its deeper constitutional significance is that public bodies should not conclusively determine the limits of their own legality. That theme reappears in Privacy International.

Pierson and Simms develop the principle of legality. Courts presume that Parliament does not intend to abrogate fundamental rights or depart from basic constitutional principles by general or ambiguous words. This is not judicial supremacy. Parliament may legislate clearly. But legality demands political responsibility: if rights are to be curtailed, the legislature must confront the matter openly.

Jackson is constitutionally important because of dicta suggesting that parliamentary sovereignty may not be the only ultimate principle in the constitution. Lord Hope’s reference to the rule of law as an ultimate controlling factor has generated extensive debate. The case did not decide that courts may disapply Acts of Parliament, and it should not be cited as if it did. Its value lies in showing that senior judges have been willing to speak of the rule of law as a constitutional fundamental.

UNISON is the most important modern access-to-justice case. The Supreme Court quashed employment tribunal fees because they prevented effective access to justice. Lord Reed’s reasoning treated courts not as a consumer service for private litigants but as institutions through which law becomes real. This is Bingham’s access-to-courts principle in operational form.

Privacy International confirms that even carefully drafted clauses restricting review will be read against the constitutional background. The Supreme Court held that the statutory provision did not exclude judicial review for error of law. The case reflects the modern presumption that Parliament must use the clearest language if it intends to insulate legal error from the courts, and even then deeper constitutional questions may remain.

Miller and Cherry concerned prorogation, not ordinary administrative decision-making. Their significance lies in the court’s insistence that prerogative power is legally limited where its exercise frustrates constitutional principles such as parliamentary accountability. The case is controversial, but for present purposes it shows the rule of law operating at the high constitutional level: even the most political powers may have legal limits.

See practice questions section below.

See further reading section below.