The rule of law — Bingham and after

This note examines the rule of law as a foundational constitutional principle in the United Kingdom, focusing on Lord Bingham's influential synthesis and subsequent judicial and academic developments. The rule of law operates both as a political ideal and as a judicially enforceable principle constraining executive and legislative action.

Since Dicey's classical account in the Law of the Constitution (1885), the rule of law has undergone considerable refinement. Bingham's eight principles, articulated in The Rule of Law (2010), have become the dominant modern framework. These principles emphasise accessibility, legal certainty, equality before the law, the proper exercise of public power, protection of fundamental rights, effective dispute resolution, fair trial procedures, and compliance with international obligations. Judicial application of these principles has been evident in cases such as A (FC) v Secretary of State for the Home Department [2004] UKHL 56 (Belmarsh), R (Evans) v Attorney General [2015] UKSC 21, and the two Miller cases on Brexit and prorogation.

The note situates Bingham's framework within earlier constitutional theories, traces its deployment in landmark litigation, and considers its contested boundaries. Particular attention is paid to tensions between parliamentary sovereignty and the rule of law, the contested scope of common law constitutionalism, and the post-Brexit recalibration of constitutional relationships. Understanding the rule of law is essential to your study of sovereignty (W1), constitutional statutes (W2), and manner and form theory (W3), as it supplies the normative foundation and judicial technique underpinning many developments in those areas.

A.V. Dicey's Introduction to the Study of the Law of the Constitution established the classical British account of the rule of law around three core meanings: (1) absence of arbitrary power and the supremacy of regular law over officials; (2) equality before the law and the subjection of officials to the ordinary courts; and (3) that constitutional principles derive from judicial decisions in ordinary litigation, not from a codified document.

Dicey's account reflected late-Victorian liberal constitutionalism and a mistrust of executive discretion. It has been criticised on several grounds. First, Dicey underestimated the growth of statutory discretion in the administrative state; by the mid-twentieth century, broad ministerial powers were commonplace. Secondly, his claim that Britain eschewed droit administratif rested on a misunderstanding of French administrative law, as famously demonstrated by Hamson and others. Thirdly, his emphasis on negative liberty and formal equality overlooked substantive questions of justice and distributive fairness.

Nevertheless, Dicey's influence endures. His insistence that governmental power be grounded in law, not prerogative whim, animates modern judicial review. The principle that no one is above the law remains foundational, even if the mechanisms for accountability have evolved beyond the common law courts Dicey celebrated. The tension between Dicey's first principle (no arbitrary power) and his commitment to absolute parliamentary sovereignty has generated much subsequent debate, a theme revisited in Jackson and HS2.

In the mid-twentieth century, both Hayek (The Road to Serfdom, 1944; The Constitution of Liberty, 1960) and Fuller (The Morality of Law, 1964) revived rule of law discourse. Hayek distinguished the rule of law from rule by law, stressing general, prospective, and certain norms. Fuller articulated eight criteria of legality: generality, promulgation, prospectivity, clarity, non-contradiction, possibility of compliance, constancy, and congruence between declared rule and official action. Fuller's 'internal morality of law' influenced later thinking, including Bingham's. In the UK, the expansion of judicial review from the 1960s onwards reflected growing judicial confidence in policing executive legality, facilitated by Ridge v Baldwin [1964] AC 40 and the development of Wednesbury unreasonableness, procedural fairness, and legitimate expectation doctrines.

By the time of Bingham's writing, the rule of law had been recognised in various statutory formulations. Section 1 of the Constitutional Reform Act 2005 provides that the Act 'does not adversely affect… the existing constitutional principle of the rule of law'. This formulation is notable for its open-textured character: it assumes the principle exists and is known, but does not define it. The principle also appears in the Ministerial Code, judicial oaths, and international instruments to which the UK is party.

Lord Bingham's The Rule of Law (2010) distilled the principle into eight components, which have since been widely adopted by courts, practitioners, and scholars. These principles represent both a synthesis of existing doctrine and a normative claim about what the rule of law ought to entail in a modern democracy.

(1) Accessibility and intelligibility of the law

The law must be accessible to those subject to it and formulated with sufficient clarity to enable individuals to regulate their conduct accordingly. This principle draws on Fuller's requirements of promulgation and clarity. It underpins the doctrine against retrospective legislation affecting criminal liability (see R v Rimmington [2006] 1 AC 459) and the interpretive presumption against unclear penal statutes (Tuck & Sons v Priester (1887) 19 QBD 629).

Accessibility encompasses both formal availability (publication) and practical comprehensibility. Over-complex, inaccessible statute law undermines legality. The Tax Law Rewrite project and the Law Commission's work on statute law consolidation respond to this concern. In R (Black) v Secretary of State for Justice [2017] UKSC 81, Lord Neuberger emphasised the importance of accessible legal rules in the context of court fees.

(2) Legal certainty and non-retrospectivity

Questions of legal right should ordinarily be resolved by application of law, not discretion. Laws should be prospective, open, and stable. Retrospective legislation, especially in criminal or tax contexts, is suspect unless clearly justified. The presumption against retrospectivity is strong: L'Office Cherifien des Phosphates v Yamashita-Shinnihon Steamship Co Ltd [1994] 1 AC 486; R v Lambert [2002] 2 AC 545. Parliament can legislate retrospectively, but courts will require express words or necessary implication.

Certainty also implies that legal change should be incremental and signalled, avoiding abrupt shifts that defeat legitimate expectations. The doctrine of legitimate expectation in administrative law reflects this (though its exact scope remains contested: R (Reprotech) v East Sussex CC [2002] UKHL 8).

(3) Equality before the law

The law should apply equally to all, save to the extent that objective differences justify differentiation. This principle does not demand substantive equality of outcome but insists that legal rules apply without arbitrary discrimination.

These questions reflect the style and difficulty of Oxford FHS Constitutional Law papers. Prepare by outlining answers, identifying relevant authorities, and structuring arguments.

Foundation

1. Explain Bingham's eight principles of the rule of law. Which principle is most important, and why?

1. 'The principle of legality is an interpretive tool, not a constraint on parliamentary sovereignty.' Discuss.

Standard

1. To what extent do the Miller cases (Nos 1 and 2) vindicate the rule of law?

1. 'Ouster clauses are incompatible with the rule of law and should never be effective.' Critically assess this claim with reference to Anisminic and Privacy International.

Challenge

1. 'The rule of law now constrains parliamentary sovereignty, not merely the executive. Jackson and Evans show that common law constitutionalism has displaced Diceyan orthodoxy.' Evaluate this statement.

Essential

• Tom Bingham, The Rule of Law (Penguin 2010) — the canonical modern synthesis; every principle is explained with historical and contemporary examples.
• Paul Craig, 'Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework' [1997] Public Law 467 — foundational theoretical taxonomy.
• T.R.S. Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (OUP 2001) — defends thick, rights-based conception and common law constitutionalism.

Important articles and chapters

• Jeffrey Jowell, 'The Rule of Law and its Underlying Values' [2007] Public Law 346 — identifies dignity, equality, and participation as foundational to the rule of law.
• Sir John Laws, 'Law and Democracy' [1995] Public Law 72 — early articulation of common law constitutionalism and normative limits on sovereignty.
• Joseph Raz, 'The Rule of Law and its Virtue' (1977) 93 LQR 195 — classic statement of thin, formal conception.

Advanced and critical perspectives

• Jeffrey Goldsworthy, Parliamentary Sovereignty: Contemporary Debates (CUP 2010) — defence of orthodox sovereignty against common law constitutionalism.
• Richard Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (CUP 2007) — argues democratic politics, not judicial review, should safeguard the constitution.
• Adam Tomkins, Our Republican Constitution (Hart 2005) — political constitutionalist critique of judicial activism.
• Mark Elliott, 'The Supreme Court's Judgment in Miller: In Search of Constitutional Principle' [2017] CLJ 257 — analysis of Miller (No 1) and rule of law foundations.

Case notes and commentary

• N.W. Barber and A.L. Young, 'The Rise of Prospective Henry VIII Clauses and their Implications for Sovereignty' [2003] Public Law 112 — on delegated legislation and rule of law concerns.
• Paul Daly, 'Wednesbury's Reason and Structure' [2011] Public Law 238 — on rationality review and rule of law standards.