The rule of law — Bingham and after

The rule of law requires that all governmental power be exercised within legal limits, through clear and accessible law, subject to independent judicial supervision. Lord Bingham's eight principles—accessibility, certainty, equality, lawful power, rights protection, access to justice, fair procedures, and international compliance—have become the dominant framework (The Rule of Law, 2010). The Constitutional Reform Act 2005, s 1 recognises the rule of law as an 'existing constitutional principle' without defining it, inviting judicial articulation. The principle operates both as an interpretive constraint (the principle of legality in Simms: fundamental rights cannot be overridden by general or ambiguous words) and as grounds for judicial review (illegality, procedural impropriety, irrationality per GCHQ). While parliamentary sovereignty formally permits legislation contrary to rule of law values, the courts increasingly treat the principle as foundational—Lord Hope in Jackson [104]: 'parliamentary sovereignty is no longer, if it ever was, absolute.' The tension between sovereignty and legality remains unresolved but shapes modern constitutional adjudication.

Entick v Carrington (1765) 19 St Tr 1029: Executive action interfering with person or property requires legal authority—'If it is not to be found [in our books], it is not law.' Foundational for judicial review and the principle that government must act within legal bounds.

A (FC) v Secretary of State for the Home Department [2004] UKHL 56: Indefinite detention without trial of foreign terror suspects violated Article 5 ECHR. Lord Bingham emphasised courts must scrutinise whether derogations are 'strictly required,' rejecting broad deference on national security. Demonstrates judicial enforcement of rights protection and procedural fairness against executive overreach.

R (Jackson) v Attorney General [2005] UKHL 56: While upholding the Hunting Act 2004, obiter dicta suggested limits to sovereignty. Lord Steyn [102]: legislation abolishing judicial review or fundamental rights might be struck down; the 'classic account' of absolute sovereignty is 'out of place.' Signals potential common law constitutionalism.

R (Evans) v Attorney General [2015] UKSC 21: Attorney General's s 53 FOIA certificate overriding tribunal decision held unlawful. Lord Neuberger construed the power narrowly to preserve separation of powers—ministers cannot simply disagree with judicial reasoning. Illustrates rule of law as interpretive principle limiting executive override of judicial decisions.

R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22: Ouster clause in s 67(8) RIPA 2000 did not exclude review for jurisdictional error. Lord Carnwath emphasised access to justice and High Court supervisory jurisdiction as fundamental to the rule of law [131]-[144]. Only the clearest words could oust review, and even then might be constitutionally problematic.

Courts apply the rule of law through statutory interpretation and judicial review. First, the principle of legality (Simms): legislation is presumed not to interfere with fundamental rights unless using express words or necessary implication. This ensures Parliament confronts the political cost of rights violations. Second, restrictive construction of broad powers and ouster clauses (Anisminic, Privacy International): courts preserve their supervisory jurisdiction unless explicitly excluded. Third, grounds of review: illegality (acting beyond powers—Padfield), procedural impropriety (breach of natural justice—Ridge v Baldwin), and irrationality (Wednesbury unreasonableness, increasingly supplemented by proportionality in rights cases). Fourth, constitutional statutes doctrine (Thoburn): statutes conditioning citizen-state relations resist implied repeal. Common triggers include executive attempts to bypass Parliament (Miller No 1—triggering Article 50), restrict court access (Unison—tribunal fees), override judicial decisions (Evans), or suspend constitutional functions (Miller No 2—prorogation). Courts distinguish justiciable legal limits from non-justiciable political choices (GCHQ).

Conflating 'rule by law' with 'rule of law': The latter requires qualities—generality, prospectivity, accessibility, judicial independence—not merely the existence of legal rules. Authoritarian regimes may have detailed laws yet violate the rule of law through arbitrary enforcement.

Overstating Bingham's legal force: His eight principles are influential but not directly enforceable statutory rules. Courts apply specific doctrines (principle of legality, presumption against retrospectivity) that reflect his framework, not the principles themselves.

Ignoring sovereignty tensions: Never treat rule of law and parliamentary sovereignty as separate. Engage with Jackson obiter, common law constitutionalism debates (Allan v Goldsworthy), and whether extreme legislation might be unenforceable.

Misunderstanding the principle of legality: It requires clear words for rights interference, not invalidation of statutes. It's an interpretive tool ensuring deliberate legislative choice, not a strike-down power like US judicial review.