Weighed in the balance

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.