The rule of law

The rule of law requires that government be conducted through law, not arbitrary power. At minimum, this means executive action must have legal authority (Entick v Carrington), laws must be clear and prospective, and courts must be accessible. Beyond this formal core lies deep disagreement: does the rule of law merely constrain how law is made (Raz's thin conception), or does it limit what law may contain (Bingham's substantive view)? UK courts increasingly adopt a moderate substantive position: while they cannot invalidate primary legislation, they interpret statutes through the principle of legality to protect fundamental rights (Simms), ensure access to justice (Unison), and preserve judicial review (Privacy International). The tension with parliamentary sovereignty remains unresolved—orthodox doctrine maintains courts must apply clear statutory words, yet dicta in Jackson and Privacy International hint at possible constitutional limits.

Entick v Carrington (1765) 19 St Tr 1029: Executive requires legal authority for any interference with liberty/property—'if it is law, it will be found in our books.' Establishes legality as the bedrock principle constraining government power.

R (Unison) v Lord Chancellor [2017] UKSC 51: Access to justice is 'inherent in the rule of law' and cannot be effectively denied by prohibitive tribunal fees. Demonstrates substantive rule-of-law constraints on subordinate legislation even where primary statute confers fee-charging powers.

R (Privacy International) v IPT [2019] UKSC 22: Ouster clauses cannot exclude judicial review for jurisdictional error, even with explicit wording. Lord Carnwath: supervisory jurisdiction is fundamental to the rule of law—'ultimately for the courts, not the legislature' to determine limits on excluding review.

R v Home Secretary, ex p Simms [2000] 2 AC 115: The principle of legality—fundamental rights cannot be overridden by general/ambiguous statutory words. Parliament must 'squarely confront what it is doing and accept the political cost.'

M v Home Office [1994] 1 AC 377: Ministers subject to law and court orders—no Crown immunity in public law. Rule of law requires effective remedies against government.

Courts apply rule-of-law principles primarily through judicial review and statutory interpretation. For executive action: apply Entick—is there legal authority? If discretionary power exists, has it been exercised lawfully (within statutory purpose), fairly (natural justice), and rationally? For statutory interpretation: apply principle of legality (Simms)—presume Parliament doesn't intend to violate fundamental rights or rule-of-law principles unless crystal clear language used. Rights protected include access to courts, non-retrospectivity (Pierson), legal professional privilege. For subordinate legislation: check vires and compatibility with constitutional rights (Unison). For ouster clauses: construe narrowly (Anisminic)—cannot exclude review for jurisdictional error (Privacy International). Note the Constitutional Reform Act 2005 s.1 affirms rule of law as constitutional principle. Key test: does the measure make law's guidance impossible (retrospectivity, vagueness) or remove effective remedies?

Claiming courts can strike down statutes: Fatal error. UK courts cannot invalidate primary legislation for violating rule of law. Jackson/Privacy International dicta are obiter speculation only. Principle of legality is interpretive tool, not invalidation power.

Ignoring Raz: Must engage formal conception even if preferring Bingham's substantive view. Show why thin conception inadequate, don't just assert thick version correct.

Conflating with parliamentary sovereignty: Distinct principles in tension, not synonymous. Rule of law constrains how Parliament legislates (clarity, prospectivity) but orthodox view is it cannot limit what Parliament enacts.

Missing statutory framework: Constitutional Reform Act 2005 s.1—brief mention shows sophistication. Don't overstate its effect (merely declaratory) but note judicial reliance in Privacy International.