The rule of law — Bingham and after

The rule of law is one of the central organising ideas of UK constitutional law. It is also one of the most frequently misused. In public discourse it is often treated as a general compliment paid to good government. In constitutional law it has a more disciplined function: it asks whether public power is being exercised by legal authority, in accordance with legal limits, through institutions capable of enforcing those limits.

This week builds directly on the first three Durham weeks. Week 1 established that the UK constitution is not contained in one codified instrument, but in statutes, common law principles, conventions, prerogative powers, parliamentary practice, and political morality. Week 2 introduced parliamentary sovereignty as a doctrine of legal authority. Week 3 complicated that picture by considering constitutional statutes and the limits of implied repeal after Thoburn. The rule of law now supplies the other side of the constitutional relationship. Parliamentary sovereignty explains where supreme legislative authority lies; the rule of law explains why authority must be exercised through law, why executive action requires legal justification, and why courts are constitutionally entitled to police legality.

The topic is often taught through Lord Bingham’s modern account. In his 2006 lecture and later book, Bingham gave the rule of law a clear working definition: 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. He then developed eight sub-rules, including accessibility, legal certainty, equality before the law, lawful public administration, protection of fundamental rights, access to courts, fair adjudicative procedures, and compliance with international legal obligations. The force of Bingham’s account lies in its ability to connect ordinary administrative legality with large constitutional questions about rights, courts and Parliament.

For examination purposes, the topic must not be reduced to reciting Bingham’s eight principles. The stronger Durham answer will use Bingham as a map, then test that map against cases. Entick v Carrington illustrates the demand for positive legal authority before state interference with liberty or property. Anisminic and Privacy International show the judiciary’s hostility to attempts to immunise legal error from review. Pierson, Witham and UNISON connect legality with fundamental rights and access to courts. Jackson and Miller show the rule of law operating in dialogue with parliamentary sovereignty at moments of constitutional stress.

The essential issue is not whether the rule of law is important; it plainly is. The harder questions are these. Is it a formal principle concerned only with clarity, prospectivity and legality, or a substantive principle incorporating rights and justice? Is it a legal doctrine enforceable by courts, or a political ideal guiding constitutional conduct? Can it ever justify judicial resistance to an Act of Parliament, or does parliamentary sovereignty remain the ultimate rule of recognition? Those are the questions which distinguish descriptive answers from first-class constitutional analysis.

The English constitutional tradition associates the rule of law with a long resistance to arbitrary power. That tradition should be handled carefully. It is not a story of uninterrupted liberty. It is a set of recurrent legal techniques by which power has been required to justify itself.

One starting point is Magna Carta 1215, especially the promise that free persons would not be imprisoned or dispossessed except by lawful judgment or the law of the land. Its modern legal force is limited, but its constitutional symbolism remains powerful. Habeas corpus later gave the courts a practical mechanism for compelling the executive to justify detention. The seventeenth century conflicts between Crown and Parliament sharpened the point. The Case of Proclamations established that the Crown could not alter the law by proclamation. The Petition of Right 1628 objected to taxation and imprisonment without lawful authority. The Bill of Rights 1689 repudiated suspending and dispensing powers claimed by the Crown and entrenched certain parliamentary protections. These materials matter because they show that the rule of law in the UK has always been connected to control of executive power.

The great eighteenth-century authority is Entick v Carrington. State officials entered and searched Entick’s house under a warrant issued by the Secretary of State. The court held that the action was unlawful because no legal authority could be shown for it. The case is foundational because it reverses the logic of executive power: the citizen need not find a law permitting ordinary liberty; the state must find a law authorising coercive interference. That remains the basic structure of judicial review.

Dicey’s late nineteenth-century account gave the idea its canonical academic form. In Introduction to the Study of the Law of the Constitution, Dicey identified three meanings of the rule of law: the absence of arbitrary power; equality before the ordinary law; and the constitution as the result of ordinary legal rights enforced by courts. Dicey’s analysis was powerful but partial. His suspicion of administrative discretion fitted his political world poorly even in his own day and fits the modern regulatory state still less well. Modern government necessarily involves delegated powers, statutory discretions, planning judgments, welfare administration, immigration control and emergency powers. The question is therefore no longer whether discretion can be eliminated, but how it can be legally structured and reviewed.

The twentieth century created further tensions. Two world wars, the growth of the administrative state, national security powers, immigration control, welfare administration and delegated legislation all expanded executive capacity. At the same time, courts developed the modern grounds of judicial review: illegality, irrationality and procedural impropriety, later supplemented by proportionality in rights and EU-influenced contexts. The Human Rights Act 1998 gave courts a statutory framework for rights-based review without authorising them to strike down Acts of Parliament. The Constitutional Reform Act 2005 gave express statutory recognition to the existing constitutional principle of the rule of law. That provision did not define the principle, but it made denial of its constitutional status impossible.

Lord Bingham’s intervention belongs to this modern setting. He wrote after the expansion of administrative power, after the Human Rights Act, after increasing judicial willingness to use constitutional common law reasoning, and against the background of counter-terrorism measures following 11 September 2001. His rule of law is therefore not merely Dicey restated. It is an attempt to express legality for a democratic, rights-conscious, administrative state in which Parliament remains sovereign but public power is expected to justify itself in court.

A precise account of the rule of law should distinguish at least five connected ideas.

First, legality. Public authorities must identify a legal source for their powers and must remain within the limits of that source. This is the constitutional lesson of Entick. Ordinary persons may do anything not prohibited by law; public authorities may do only what law permits. That proposition underpins the ultra vires principle in administrative law and explains why prerogative powers, statutory discretions and delegated legislation are all reviewable for legal limits. It is also why vague appeals to necessity, convenience or policy cannot by themselves justify coercive action.

Secondly, certainty, accessibility and prospectivity. Law should be reasonably clear, public and normally prospective. Secret law and retrospective criminal punishment are paradigmatic rule of law objections. This does not mean that all legal standards must be mechanically precise. Public law inevitably uses open-textured standards such as reasonableness, fairness, proportionality and legitimate expectation. The relevant question is whether the law gives sufficient guidance to citizens and officials, and whether courts can control abuse. A constitution can tolerate discretion; it cannot tolerate discretion so unconstrained that law ceases to discipline power.

Thirdly, equality before the law. The Crown, ministers, public authorities and private citizens are subject to law. The proposition does not mean that every person is governed by identical legal rules. Ministers possess powers which private persons do not; public authorities are subject to duties which private persons are not. Equality in this context means that official status does not place a person outside legal accountability. M v Home Office is the modern illustration: a minister could not ignore a court order on the footing that executive office carried immunity from coercive legal process.

The case law develops the rule of law through concrete institutional conflicts. It is best understood as a sequence of recurring questions: who must justify power, how clear must legislation be, what role do courts play, and can Parliament exclude judicial supervision?

Entick v Carrington remains the classic case on legal authority. The Secretary of State’s warrant did not suffice because no lawful source empowered the search and seizure. The decision is not merely about trespass. It expresses the asymmetry between citizen and state. Citizens are free unless law restricts them; officials must point to legal authority for coercive acts. That logic remains fundamental to modern judicial review.

Anisminic is the leading modern authority on ouster clauses and jurisdictional error. The Foreign Compensation Commission misconstrued the statutory scheme and concluded that Anisminic was not entitled to compensation. A statutory clause purported to make determinations of the Commission not called into question in any court. The House of Lords held that an error going to the decision’s legal basis meant there was no valid determination protected by the clause. Later doctrine blurred the old distinction between jurisdictional and non-jurisdictional errors of law. The constitutional effect was clear: Parliament must use the clearest language if it wishes to exclude judicial supervision, and even then the courts may construe such attempts strictly.

M v Home Office established that ministers are not above the courts. The Home Secretary had acted contrary to undertakings and orders relating to an asylum seeker’s removal. The House of Lords held that injunctions and contempt proceedings could apply to ministers acting in their official capacity. The case is important because equality before the law is institutional as well as personal: executive office does not create a zone of legal impunity.

Pierson and Witham show the rise of common law constitutional rights. In Pierson, the Home Secretary could not retrospectively increase the punitive tariff for a life sentence in a way inconsistent with legality and fairness. In Witham, delegated legislation imposing court fees was invalid because it impeded access to the courts. These cases illustrate the principle of legality: fundamental rights are not overridden by general or ambiguous words.

Jackson is doctrinally difficult. The validity of the Hunting Act 2004 was challenged by questioning the use of the Parliament Acts. The challenge failed. Yet dicta from Lords Steyn and Hope suggested that parliamentary sovereignty is a common law construct and that the rule of law might impose ultimate limits in extreme circumstances. Those dicta are not holdings. Their importance lies in showing judicial unease with a purely absolutist theory of sovereignty.

UNISON is the modern access to justice case. The Supreme Court quashed employment tribunal fees because they effectively prevented access to claims and frustrated statutory rights. Lord Reed’s judgment treated courts not as a consumer service but as a constitutional institution through which legal rights are made effective. Privacy International then confirmed the same judicial instinct in relation to ouster clauses. The Supreme Court refused to read a statutory exclusion as preventing review where the tribunal had acted on an error of law. Together, UNISON and Privacy International mark the post-Bingham rule of law at its strongest: legality requires accessible courts and meaningful review.

See practice questions section below.

See further reading section below.