Question: 'Bingham's rule of law principles are an aspiration, not a constraint on parliamentary sovereignty.' Discuss.
---
Introduction
Lord Bingham's eight principles synthesise the rule of law's content in the modern UK constitution. They encompass accessibility, certainty, equality, lawful exercise of power, rights protection, access to justice, fair procedures, and international law compliance. The question requires evaluation of whether these principles constrain Parliament or merely express political ideals. The answer lies in distinguishing judicial enforcement (legal constraint) from normative influence (aspiration), and in examining the evolving relationship between sovereignty and the rule of law.
The orthodox position: sovereignty and the rule of law as complementary
Traditionally, parliamentary sovereignty and the rule of law coexisted without contradiction. Dicey held that Parliament is supreme, capable of making or unmaking any law, but that government under Parliament must act lawfully, subject to courts' supervisory jurisdiction. The rule of law did not limit what Parliament could enact, only that executive and judicial branches must obey enacted law.
On this view, Bingham's principles are not binding on Parliament. Parliament can legislate retrospectively (violating principle 2), oust judicial review (contrary to principle 6), or repeal the HRA (weakening principle 5). Sovereignty entails that no legal rule constrains Parliament's legislative capacity.
This orthodoxy is defended by Goldsworthy and Ekins. They argue that legal constraints on Parliament would transfer ultimate authority to courts, undermining democratic accountability. The rule of law, they contend, regulates the executive and judiciary but not Parliament itself.
Judicial application: rule of law as interpretive and supervisory constraint
Yet Bingham's principles do constrain in practice, through judicial interpretation and review. The principle of legality (Simms, Pierson) requires that interferences with fundamental rights be clearly authorised. This does not prevent Parliament from legislating, but it imposes a clear-statement rule, ensuring deliberate choice and political accountability.
Courts have struck down executive action and subordinate legislation using rule of law principles. In Unison, the Supreme Court invalidated tribunal fees for undermining access to justice (Bingham's sixth principle). In Evans, s 53 FOIA was construed narrowly to preserve judicial authority. In Privacy International, ouster clauses were read restrictively to maintain supervisory jurisdiction.
These cases illustrate that the rule of law constrains exercises of statutory power. While Parliament could legislate explicitly to reverse these decisions, the political cost (Simms's 'political cost' point) and the rule of law's constitutional status (CRA 2005, s 1) mean such legislation is rare. The rule of law thus operates as a de facto constraint.
Common law constitutionalism: rule of law as legal limit on sovereignty
The Jackson obiter dicta suggest that, in extreme cases, the rule of law might legally constrain Parliament. Lord Steyn, Lord Hope, and Lady Hale indicated that legislation abolishing judicial review or subverting democracy might be unenforceable. This reflects common law constitutionalism: sovereignty is a judge-made principle, and judges may condition or limit it.
Common law constitutionalism treats the rule of law not as aspiration but as constitutional bedrock. If Parliament enacted legislation authorising arbitrary detention without any legal process, courts might refuse to apply it, invoking rule of law principles (Bingham's fifth and seventh). This remains hypothetical—no UK court has invalidated primary legislation on rule of law grounds—but Jackson, Privacy International, and Evans inch toward it.
Critics (Goldsworthy, Allan from a different perspective, Tomkins) argue this is inconsistent with constitutional history and democratic principle. Supporters (Laws, Jowell, Allan) reply that legality and rights underpin the entire legal order and cannot be sacrificed to bare majoritarianism.
The HRA and constitutional statutes: quasi-entrenchment
Bingham's fifth principle (rights protection) is operationalised through the HRA, identified in Thoburn as a constitutional statute. Such statutes are not impliedly repealed; express repeal is required. This is a weak form of entrenchment, reflecting rule of law values: fundamental norms should not be inadvertently altered.
Section 3 HRA creates an interpretive duty favouring rights, and s 6 makes public authorities' rights violations unlawful. Parliament retains power to repeal the HRA, but the political and legal culture now embeds rights protection. The rule of law thus shapes constitutional practice even if it does not bind Parliament in strict legal theory.
International law compliance: aspiration or obligation?
Bingham's eighth principle is the most controversial. Parliament may legislate contrary to international law (e.g. Mortensen v Peters (1906) 8 F (J) 93). The rule of law, in Bingham's view, is damaged by such legislation, but sovereignty permits it.
Yet the presumption of conformity with international law (Ambrose; R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16) constrains interpretation. Courts strive for compliance unless statute clearly directs otherwise. The Northern Ireland Protocol controversy (2020–22) illustrates the tension: ministerial admission of intent to breach international law provoked rule of law condemnation but no legal invalidation.
Here, the rule of law operates primarily as aspiration and political constraint. Legal constraint is indirect (interpretive presumption), not absolute.
Conclusion
Bingham's principles are both aspiration and constraint, depending on context. They do not legally prevent Parliament from legislating contrary to rule of law values, vindicating the orthodox sovereignty account. But they profoundly constrain the executive, shape statutory interpretation, and influence constitutional practice. The principle of legality, constitutional statutes doctrine, restrictive reading of ouster clauses, and Jackson obiter dicta suggest the rule of law is becoming a legal limit on public power, including (in extremis) Parliament.
The most accurate characterisation is that the rule of law is a constitutional principle increasingly treated as foundational, capable of constraining sovereignty in all but the most explicit legislative overrides, and possibly even then in extreme cases. It is more than aspiration, less than absolute legal limit—an evolving feature of the UK's uncodified constitution.