Lord Bingham and the Rule of Law: The Eight Principles

Lord Bingham's rule of law is the account set out by Tom Bingham, a former Lord Chief Justice and Senior Law Lord, first in a lecture in 2006 and then in his book The Rule of Law, published in 2010. He defined the core of the principle as everyone, including the state, being bound by and entitled to the benefit of laws that are public and applied by the courts, and broke it down into eight practical principles.

His list is now one of the most widely quoted explanations of what the rule of law means in the UK.

Who was Lord Bingham?

Thomas Bingham (13 October 1933 to 11 September 2010) held three of the most senior judicial posts in the UK:

• Master of the Rolls, 1992 to 1996
• Lord Chief Justice, 1996 to 2000
• Senior Lord of Appeal in Ordinary (the Senior Law Lord), 2000 to 2008

On 16 November 2006 he gave the sixth annual Sir David Williams Lecture at the University of Cambridge, titled "The Rule of Law". That lecture set out his definition and eight "sub-rules". His book of the same name, published by Allen Lane in 2010, expanded the argument for a general readership. It won the Orwell Prize for 2011, awarded after his death. In 2010 the British Institute of International and Comparative Law set up the Bingham Centre for the Rule of Law in his honour.

Why he wrote it

The starting point was the Constitutional Reform Act 2005. Section 1 says the Act does not adversely affect "the existing constitutional principle of the rule of law", and the Lord Chancellor swears to respect it. But the Act does not say what the rule of law is. Bingham set out to answer that question in terms that judges, officials and ordinary readers could use.

The core definition

In his 2006 lecture, Bingham suggested that the core of the principle is that "all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of" laws that are publicly made, take effect for the future and are publicly administered in the courts.

Two features stand out. The definition covers the state as well as private people, so government is bound by the law. And it speaks of being "entitled to the benefit" of the law as well as bound by it, so the rule of law protects people as well as constraining them.

Bingham's eight principles

Bingham then set out eight principles, which he called sub-rules, that follow from the core idea. The wording below follows his formulation, shortened in places, with a plain-English summary.

Principle	What it means
The law must be accessible, intelligible, clear and predictable	People must be able to find out what the law requires and understand it.
Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion	Officials should apply rules, not personal judgement, wherever possible.
The law should apply equally to all, save to the extent that objective differences justify differentiation	Equal treatment, unless there is a genuine and relevant difference, for example between adults and children.
Ministers and public officers must exercise their powers reasonably, in good faith, for the purposes for which they were conferred and within their limits	Power given for one purpose cannot be used for another, and officials must stay within their legal powers.
The law must afford adequate protection of fundamental human rights	The rule of law is not satisfied by any law at all; it must protect basic rights.
Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve	Ordinary people must be able to get disputes decided by a court or tribunal at a cost and speed they can manage.
Adjudicative procedures provided by the state should be fair	Trials and hearings run by courts and tribunals must be fair.
The state should comply with its obligations in international law, whether deriving from treaty or international custom and practice	The rule of law applies between states as well as within them.

Thick, not thin

Bingham's account is what lawyers call a "thick" or substantive version of the rule of law, because the principles on human rights and international law go beyond the form of laws into their content. That is a deliberate choice, and it is where the main debate lies.

• Supporters say a definition limited to form would allow a state to pass oppressive laws and still claim to respect the rule of law. Including human rights avoids that.
• Critics in the tradition of the philosopher Joseph Raz argue that the rule of law should be kept to formal qualities, such as laws being open and stable, so that it does not become a general label for every political ideal. On that view, human rights and democracy are important but separate values.

Bingham's list can be compared with the older account of A. V. Dicey, set out in our guide to Dicey's rule of law. Dicey also stressed equality and the supremacy of ordinary law, but Bingham added explicit principles on human rights, access to justice and international law.

Why the book is so widely cited

• Authority. It was written by a judge who had held some of the most senior judicial offices in the UK.
• A gap in the law. Parliament named the rule of law in the 2005 Act without defining it, and Bingham's eight principles offered a practical checklist.
• Readability. The book was written for a general audience rather than only for lawyers, and it won the Orwell Prize.
• Usefulness. Each principle can be tested against a real law or decision, which makes the list practical for teaching and public debate.

For a wider overview of definitions, including the United Nations' version, see what is the rule of law.