Introduction
The rule of law is a foundational principle of the UK’s uncodified constitution, asserting that the state should be governed by law and not by the arbitrary exercise of power. While it is an abstract and contested concept, its practical importance lies in its ability to constrain government action and ensure accountability. This paper will argue that administrative law, and specifically the mechanism of judicial review, serves as the primary means by which the high-level principles of the rule of law are given concrete legal effect in England and Wales. Administrative law translates the theoretical ideal of government under law into a tangible reality by providing a framework for challenging the decisions of public bodies. This essay will first outline the key conceptions of the rule of law, before demonstrating how the grounds of judicial review—illegality, procedural impropriety, and irrationality—directly correspond to and enforce its core tenets.
Understanding the Rule of Law
The concept of the rule of law has been subject to extensive academic and judicial debate, leading to different interpretations. A traditional and influential starting point is the ‘formal’ conception articulated by A.V. Dicey. For Dicey, the rule of law had three main aspects: first, that no person could be punished except for a distinct breach of law established in the ordinary legal manner before the ordinary courts; second, that no person is above the law and everyone is subject to the same law administered in the ordinary courts; and third, that constitutional principles are the result of judicial decisions determining the rights of private persons (Dicey, 1915). This perspective is 'formal' or 'thin' because it focuses on the procedural form of law and the manner in which power is exercised, rather than on the substantive content or quality of the law itself.
In contrast, modern jurists have advocated for a more 'substantive' or 'thick' conception. Lord Bingham, in his seminal work, proposed eight principles which he argued were the essential components of the rule of law. These include not only formal aspects, such as the law being accessible, intelligible, clear, and predictable, but also substantive requirements, such as the law affording adequate protection of fundamental human rights (Bingham, 2010). Bingham’s third principle is particularly relevant to administrative law: "questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion" (Bingham, 2010, p. 55). His sixth principle is also central, stating that ministers and public officers must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers, and not unreasonably. These principles move beyond Dicey's formalism to demand that the law itself be just and fair. Whether one adopts the formal or substantive view, a common thread is the necessity of controlling government power and ensuring it is exercised within legal limits. It is here that administrative law plays its vital role.
Administrative Law as the Vehicle for the Rule of Law
Administrative law is the area of public law that governs the relationship between the individual and the state. It provides the legal framework for holding the executive and other public bodies to account. The primary mechanism for this is the procedure of judicial review, through which the High Court can scrutinise the lawfulness of a public body's decision, action, or failure to act. It is crucial to note that judicial review is not an appeal on the merits of a decision; the court is not concerned with whether it would have made the same decision, but rather with whether the decision was made in a lawful manner (Elliott and Thomas, 2020). The grounds for judicial review, famously categorised by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, directly reflect and enforce the principles of the rule of law.
Illegality: Keeping Government within its Powers
The first ground of judicial review is illegality. This principle requires that public bodies must act within the scope of the powers granted to them, which are typically conferred by an Act of Parliament. This is the doctrine of ultra vires (meaning 'beyond the powers'). If a public body acts outside the 'four corners' of the statute that grants it power, its actions will be declared unlawful. This directly enforces the rule of law principle that government itself is subject to the law. A classic example is Attorney-General v Fulham Corporation [1921] 1 Ch 440, where a local authority was given the power to establish public washhouses. The authority decided to open a laundry service where council employees would wash the clothes for residents. The court held that this was beyond the power granted by Parliament and therefore unlawful. This demonstrates the court policing the boundaries of executive power, ensuring that public bodies do only what the law permits. This prevents the arbitrary expansion of state power, a central fear for rule of law theorists.
Procedural Impropriety: Ensuring Fairness
The second ground is procedural impropriety, which covers both failures to observe express procedural rules laid down in statute and breaches of the common law rules of natural justice. The rules of natural justice, or procedural fairness, demand that decision-making processes are conducted fairly. They are encapsulated in two Latin maxims: audi alteram partem (the right to a fair hearing) and nemo iudex in causa sua (the rule against bias).
The right to a fair hearing requires that a person whose rights or interests are affected by a decision should be given a chance to present their case. In Ridge v Baldwin [1964] AC 40, the House of Lords held that the dismissal of a chief constable without giving him a hearing was a breach of natural justice and therefore unlawful. This landmark case affirmed that principles of fairness applied to a wide range of administrative decisions, not just those of a judicial nature. The rule against bias ensures that decisions are made by an impartial decision-maker. In R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No 2) [2000] 1 AC 119, a House of Lords decision concerning the extradition of the former Chilean dictator was set aside because one of the Law Lords had links to an organisation that was a party to the case, creating an appearance of bias. By enforcing these procedural standards, administrative law upholds Lord Bingham's principle that legal issues should be resolved by a proper and fair application of the law, preventing arbitrary and prejudiced decision-making.
Irrationality: Guarding Against Unreasonable Decisions
The third ground, irrationality (or unreasonableness), is designed to prevent the abuse of discretionary power. The test for irrationality was set out in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. A decision is 'Wednesbury unreasonable' if it is "so unreasonable that no reasonable authority could ever have come to it". This is a high threshold for a claimant to meet, as it respects the fact that Parliament has entrusted discretion to the public body, not the courts. However, it acts as a long-stop protection against truly arbitrary or absurd exercises of power. For example, a decision to dismiss a teacher because she has red hair would almost certainly be struck down as irrational (a hypothetical example often used to illustrate the principle). This ground ensures that even when a public body has discretion, that discretion is not unlimited and must be exercised in a way that is rational and defensible, thereby upholding the rule of law’s opposition to arbitrary power.
Judicial Defence of the Rule of Law
The judiciary’s commitment to using administrative law to uphold the rule of law is perhaps most evident in its treatment of 'ouster clauses'. These are clauses inserted into legislation by Parliament that attempt to exclude or limit the jurisdiction of the courts to conduct judicial review. In Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, the House of Lords was faced with a statute that said a determination by the commission "shall not be called in question in any court of law". The court interpreted this clause very narrowly, holding that it only protected legally valid 'determinations', and that any decision affected by an error of law was not a 'determination' at all and could therefore be reviewed. This bold interpretive move effectively preserved the court's supervisory role and is a powerful example of the judiciary defending its role as the guardian of the rule of law. This principle was recently reaffirmed by the Supreme Court in R (on the application of Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22, confirming the strong judicial presumption that Parliament does not intend to oust the jurisdiction of the courts.
Conclusion
In conclusion, the rule of law is not merely a political slogan but a practical constitutional principle that is made effective through the mechanisms of administrative law. While theorists may debate its precise definition, its core function is to ensure that the government operates under law and is accountable for its actions. This essay has demonstrated that the grounds of judicial review—illegality, procedural impropriety, and irrationality—are the legal tools used by the judiciary to enforce this principle. They ensure that public bodies act within their given powers, follow fair procedures, and do not exercise their discretion in an arbitrary fashion. The determined stance of the courts in cases like Anisminic further illustrates that administrative law is actively deployed to protect the rule of law from potential legislative or executive overreach. Therefore, administrative law should be understood as the living embodiment of the rule of law, translating its abstract ideals into enforceable legal duties that govern the modern state.
References
Bingham, T. (2010) The Rule of Law. Allen Lane.
Dicey, A.V. (1915) Introduction to the Study of the Law of the Constitution. 8th edn. Macmillan.
Elliott, M. and Thomas, R. (2020) Public Law. 4th edn. Oxford University Press.
Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147.
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
Attorney-General v Fulham Corporation [1921] 1 Ch 440.
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.
R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No 2) [2000] 1 AC 119.
R (on the application of Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22.
Ridge v Baldwin [1964] AC 40.
