We sanctify some expressions, and in the process empty them of meaning. ‘Democracy’, ‘freedom’ or ‘equality’ are all used in ways that beg more questions than they answer. As Orwell pointed out, those who reject the concepts have a habit of appropriating the words. And so it is with the ‘rule of law’. At a time when the arbitrary power of the state has rapidly increased in most western countries, the ‘rule of law’ is invoked more than ever. Is it any more than another august slogan?
Tom Bingham, one of the greatest English judges of the past century, presided over the Judicial Committee of the House of Lords for eight years until his retirement in 2008. This period coincided with two striking developments in English constitutional law. The first came in 2000, when the European Convention on Human Rights was for the first time given the force of law in England. One reason for taking this course was (in the words of the Labour Party’s consultation paper) to ‘bring human rights home’: in other words to allow English courts to pronounce on the Convention, bringing an English outlook to bear on it instead of leaving the field clear for the European Court of Human Rights in Strasbourg.
The second development, which was not entirely new, but received a big boost from the enactment of the Convention, was the rise of pressure group litigation. Much litigation of this kind is really political protest by other means. It has tested the boundary between the political and the judicial sphere at the very time when recent constitutional reforms are trying to impose a true separation of powers.
Within a year of the Convention coming into force, the destruction of the World Trade Center, followed later by controversial wars in Afghanistan and Iraq, inaugurated a period of highly authoritarian legislation, abrogating rights which had been taken for granted for centuries. As is the way with powers conferred on officials and policemen, they tended to be exercised 150 per cent.
There was a good deal of public support for such measures. But they conflicted with the liberal tradition of English law and with some of the most basic instincts of English judges. Many of these instincts were embodied in the Human Rights Convention, in whose drafting, years ago, English lawyers had had a large part. Some of the most abrasive powers assumed by the government under anti-terrorist legislation have been struck down or curtailed by the Law Lords, along with critical parts of the United Kingdom’s arrangements for dealing with immigration, asylum and public order. Most of the more significant judgments were written in the characteristically lucid and restrained prose of Tom Bingham.
In a mundane sense, these decisions were about the meaning of statutes, the interpretation of the Convention and the translation of the sometimes opaque reasoning of the Strasbourg court. In another, more fundamental sense, they were about the rule of law as the English judiciary currently conceives it. The rule of law has traditionally been taken to mean that every act of the state should be authorised by law; that laws should apply generally to those in like positions and not ad hominem at the discretion of those in power; and that their application should be reviewed by impartial courts to which all may resort.
But the main theme of this humane and reflective book is that the rule of law must mean more than that. The law must confer a minimum of rights on citizens against the state and their fellow citizens. ‘Bad laws are the worst sort of tyranny’, as Edmund Burke told the electors of Bristol, but they are still laws. Some of the worst excesses of the Third Reich were strictly in accordance with laws which, however repellent, had been duly enacted according to the German constitution. Was that good enough?
Tom Bingham is best known for his vindication of human rights and the rule of law against the excesses of legislative and governmental action. Yet, the interesting thing about this very English judicial figure is that he has never been an instinctive opponent of executive power. His views about the relations between the state and the citizen were conceived in the long tradition of judicial pragmatism. One of the consistent themes of his judgments is the legitimacy of the state’s traditional role in protecting the interests of its citizens, provided that its acts are rational and proportionate. Like the other outstanding judicial figure of the passing generation, Lord Hoffmann, he has shown a great deal more understanding than some of the more activist judges of the proper place of the judiciary, the legitimate domain of political decision-making, and the constitutional role of ministers in a democracy who are answerable (unlike judges) to Parliament and ultimately the electorate.
A good example is provided by the topical question of the legality of the invasion of Iraq. As a judge, Bingham declined to rule on this, or even to order the government to hold the inquiry which is now in progress. It was a matter for ministers, who were constitutionally responsible for the conduct of the UK’s foreign relations and answerable on such matters to Parliament and international tribunals, rather than the domestic courts. Yet we now know (and could previously have guessed) that Bingham regarded the invasion as a serious violation of international law. He said so in a famous lecture delivered some six weeks after his retirement. In one of the most interesting chapters of The Rule of Law he rejects in forthright terms the views of the then Attorney-General, Lord Goldsmith, who advised the government at the time that the war was legal. But if Bingham was ever tempted to express his views from the bench, he never let it show.
In another characteristic section of the book he discusses the theory, which has the support of some of his colleagues, that the judges are entitled to set limits to the sovereignty of Parliament, treating some legal principles as so fundamental that not even an elected legislature can be allowed to disregard them.
The problem about this, as he points out, is that in the absence of a written constitution it would subvert the democratic character of the constitution by making judges the ultimate source of authority in the state, and putting the constitution as they judged it beyond the power of the legislature to amend. Judges are delegates of the sovereign state within their proper sphere. They are not themselves sovereign.
What both of these examples have in common is that they illustrate Tom Bingham’s scrupulous respect for the limits of the judicial function, and his understanding of the workings of power beyond the courts.
The author has been heard to describe The Rule of Law as a ‘sixth-form primer’. But the book is a great deal more than that. It is a perceptive and elegant analysis of some of the great legal dilemmas of the 21st century, dilemmas which touch every citizen in an age when law permeates our lives more completely than ever before.