# The rule of law

> **Key takeaway:** Government under law; access to courts; principle of legality (Simms). CRA 2005 s.1 recognises the principle. Ouster clauses anxiously scrutinised (Privacy International). Complements, not replaces, sovereignty.

- **Jurisdiction:** England & Wales
- **Practice area:** Public Law
- **Last reviewed:** 2026-08-04
- **Interactive page:** https://kttclegal.info/library/notes/PublicLaw/rule-of-law
- **Keywords:** rule of law, principle of legality, Simms, ouster clause, Privacy International, access to court, Constitutional Reform Act 2005, public law

## What is this about?

The rule of law is a foundational constitutional principle: public power must have legal authority, laws should be accessible and prospective in ordinary operation, and disputes should be justiciable before independent courts. It informs statutory interpretation, judicial review, and debates about ouster clauses.

## What is the core rule?

In modern English public law, the rule of law requires that the executive act under law (principle of legality), that individuals have access to courts, and that statutes be interpreted where possible consistently with fundamental rights and against vague discretionary power without safeguards. Courts have treated the rule of law as a constitutional principle recognised in the Constitutional Reform Act 2005 s.1, while remaining institutionally respectful of parliamentary sovereignty. Extreme ouster clauses and attempts to exclude judicial review attract especially anxious scrutiny (Privacy International; Evans themes).

## What are the elements or test?

1. Is there positive legal authority for the impugned act?
2. Is the power constrained by legality, rationality, and procedural fairness?
3. Does interpretation engage the principle of legality (clear words needed to abrogate basic rights)?
4. Any ouster/access-to-court issue?
5. Remedies via JR or private law?

## Which authorities matter?

- **Constitutional Reform Act 2005, s.1** — Statutory recognition that the Act does not adversely affect the existing constitutional principle of the rule of law.
- **R v Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115** — Principle of legality: fundamental rights not overridden by general or ambiguous words.
- **R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22, [2020] AC 491** — Supreme Court on ouster clauses and the rule of law / access to the court.
- **Entick v Carrington (1765) 19 St Tr 1029** — Historic expression of government under law.

## How does this apply in practice?

The rule of law is a principle, not a free-standing tort. Use it to structure JR and interpretation arguments. Different academic models (Dicey, Raz, Bingham) emphasise different features — be clear which aspect you invoke.

## What are common pitfalls?

- Pleading 'rule of law' without a concrete ground (illegality/fairness/access)
- Assuming courts will strike down primary legislation for rule-of-law breach
- Ignoring parliamentary sovereignty tension
- Over-reading academic catalogues as binding doctrine

## When would a practitioner use this?

Skeleton arguments on legality, ouster, and rights-consistent interpretation.

## Quick reference

Government under law; access to courts; principle of legality (Simms). CRA 2005 s.1 recognises the principle. Ouster clauses anxiously scrutinised (Privacy International). Complements, not replaces, sovereignty.

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*Reference material from [KTTC Legal](https://kttclegal.info/), not legal advice. Work product supports instructing solicitors and barristers under their supervision. England & Wales.*