Lord Bingham's Remarkable Journey

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About the author
John Jackson is a lawyer who has never practised the law professionally. He is chairman of Mishcon de Reya and ‘History Today’ and a director of openDemocracy.

It is helpful if those whose opinions can affect our lives think out loud in an open and honest way so that we can follow the development, and particularly the changing, of their thoughts. Someone who is good at this, in his judgements, speeches and lectures, is Lord Bingham, formerly both Master of the Rolls and Lord Chief Justice - and a senior Law Lord since the year 2000. This is particularly so in respect of the notions of the rule of law and parliamentary sovereignty. What are they? What do they mean? And are they compatible?

In 2002 Lord Bingham said flatly in a public lecture: "Under our constitutional dispensation Parliament is sovereign." By this he meant that, in our country, it is Parliament which is the highest law making body and no one - not even the judges - can declare an Act of Parliament, however odious, unlawful. This is in contrast with the position in most other representative democracies. There it is a written constitution which is paramount and the judges, who are themselves governed by it, can strike down legislation as unconstitutional.

In a lecture delivered in November 2006 (opens pdf) Lord Bingham discussed the rule of law in the context of our Constitutional Reform Act which had become law in 2005. He commented that the Act, whilst requiring the Lord Chancellor to respect the rule of law (and to defend the independence of the judiciary), did not define the rule of law or the Lord Chancellor's existing constitutional role in relation to it. He argued that the statutory affirmation of the rule of law as an existing constitutional principle had the unavoidable consequence of binding the judges to construe statutes so that they did not infringe that principle, if it were reasonably possible to do so. He added, "And the Lord Chancellor's conduct in relation to that principle would no doubt be susceptible, in principle, to judicial review."

Having thereby preserved parliamentary sovereignty (but lined up his judicial sights on the executive) he observed that it would be useful to have some agreement on what the rule of law included. He proposed - and discussed - eight sub-rules, all of which are important, with one, arguably, of particularly current relevance. This one, his third sub-rule, was "that the laws of the land should apply equally to all, save to the extent that objective differences justify differentiation". In acknowledging later in his speech that a constitutional difficulty could arise if Parliament legislated in clear breech of that sub-rule he hinted that the question of incompatibility was beginning to trouble him.

Very recently (on 31st October last), in a further lecture, Lord Bingham explores "what seems to me a serious problem".

He reaffirms his belief in the principle of parliamentary sovereignty as fundamental in this country and dismisses the argument that the creation of a parliament for Scotland (or the sharing of sovereignty with the EU) has ended the sovereignty of the Westminster Parliament because what it has given it can take away. (Many would say that this defence of tradition by theory ignores political reality. Could Holyrood be destroyed without the consent of the Scottish people?)

Because Parliamentary sovereignty "has for centuries been accepted as such by judges and others officially concerned in the operation of our constitutional system", he refuses, with respectful tact, to accept the view reflected in the observations of certain of his senior judicial colleagues that the principle is in fact a creature of judge-made common law which the judges can alter at their discretion. Notably amongst them was Lord Steyn, who had sat together with him on the case brought to challenge the lawfulness of the Parliament Act of 1949, a case which bears my name.

Bingham grants that other "respected and authoritative voices now question whether parliamentary sovereignty can co-exist with the rule of law" and more than concedes that major point. For following up his third sub-rule, he says he could not endorse the purist (or impurist) view that if a statute discriminates against a minority in an arbitrary and unjustifiable way it would none the less, provided it was clear and unambiguous, comply with the rule of law.

How could the judges construe such a statute as compatible with the rule of law? Plainly they could not. They would be impaled by the incompatibility. Could such a situation arise? Exploring this Lord Bingham looks at the proposition that there is no vice at the heart of our constitutional system because "although Parliament can legislate in a way that infringes the rule of law and fundamental rights it can in practice be relied on not to do so".

It was his examination of this that brought Lord Bingham to his "serious problem". The Parliament of today is not the Parliament - the Sovereign acting in consort with the Lords and the Commons - which has "for centuries" been accepted by the judges and others as having sovereignty. "The legislative role of the Crown has been reduced to a mere formality, and under the Parliament Acts 1911 and 1949 the power of the Lords is relatively brief delay and not denial", he said. (He could have gone further and pointed out that today the composition of the Commons owes more to popular preference for a political party than for individuals representing constituents' interests.) After considering the way in which the Parliament Acts have been used recently to impose the will of the Commons, he continues "Thus our constitutional settlement has become unbalanced, and the power to restrain legislation favoured by a clear majority of the Commons much weakened, even if, exceptionally, such legislation were to infringe the rule of law."

Lord Bingham concludes his lecture thus, "If, as I think we have been told, there is to be a review of our constitution and the governance of Britain, we may perhaps hope that the rule of law and its relationship with parliamentary sovereignty may feature high on the agenda. Once the problem is squarely confronted, the political genius of the British people will surely find a solution."

Like the careful judge he is, Lord Bingham does not finish his remarkable journey of self-persuasion by saying what that solution should be. Earlier in that speech he had linked the rule of law and democracy: "...the rule of law... requires the citizen to comply with the law but requires, as a quid pro quo, that the citizen has a say in the laws by which he is to be bound."

Surely that must be truest of all in respect of our constitutional arrangements. It cannot be acceptable to "we the people" that further such arrangements are simply handed down to us. There must be real popular involvement, ultimately by referendum. The important questions about the duty of the executive (derived from a political party) to govern and the power of judges to check the exercise of this is being argued out in terms of the role and nature of ‘parliamentary sovereignty'. That now needs to shift to the terrain of democracy - of "popular sovereignty".

The obvious solution lies in what has been adopted by other nations: a written constitution which would set out a framework for all of us, including both chambers of a modern Parliament, to fit together along with our rights and duties. As Sunder Katwala of the Fabian Society has suggested this could be introduced together with wide electoral reform in 2011, the anniversary of the 1911 Parliament Act. Then, we could finally have "a government of laws and not of men". If this was plainly the expressed will of the people, I believe Lord Bingham would think it was well done.