Tom Bingham, The Rule of Law, Allen Lane, £20.00 (available from Amazon.co.uk for £12)
In the first of two reviews of the former lord chief justice’s book on the rule of law, John Jackson discusses the issue of its compatibility with the doctrine of Parliamentary Sovereignty. Keith Ewing offers a more sceptical approach to a crusading judge.
In 2007 I wrote two pieces, one entitled Lord Bingham’s Remarkable Journey, the other Who makes the law in Britain?, about the developing views of Lord Bingham, then the Senior Law Lord, on the rule of law and its relationship to the doctrine of Parliamentary Sovereignty, encapsulated in the phrase, ‘Parliament may do anything, except bind its successors’. In short, he seemed to be moving from strong adherence to the ‘rightness’ of Parliamentary Sovereignty as ‘fundamental’ to an acknowledgement of its possible incompatibility with the rule of law – equally fundamental. He was becoming concerned about the constitutional position of the judges if they were called on to interpret legislation, enacted by a sovereign parliament, which they might regard as contrary to the rule of law.
I described how he, Bingham, had remarked on the failure of Parliament in the Constitutional Reform Act 2005 to provide a definition of the rule of law whilst declaiming it as ‘an existing constitutional principle’. This failure he saw as presenting some difficulty to those (the judges) who might in future be required to say what this existing constitutional principle is. He postulated eight ‘sub rules’ underlying the main rule which might assist them. These sub rules he now describes as part of an attempt to identify what the rule of law really means to us, here and now. They are:
- The need for the law to be accessible, intelligible, clear and predictable.
- Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion.
- The law should apply equally to all, save to the extent that objective differences justify differentiation.
- The law must afford adequate protection of fundamental human rights.
- Means must be provided for resolving without prohibitive cost or inordinate delay bona fide civil disputes which the parties themselves are unable to resolve.
- Ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purposes for which the powers were conferred and without exceeding the limits of such powers.
- Adjudicative procedures provided by the state should be fair
- The state should comply with its obligations in international law, whether deriving from treaty or international custom and practice.
I have remarked before (in Unlocking Democracy: 20 years of Charter 88) that, in my view, the inclusion of 4 and 8 presents considerable difficulty. That is not because there is anything wrong with them per se, quite the contrary. It is because it expands the interpretive role of the judges into the realms of political legitimacy, the relationship between the individual and the state and international relations – with all their uncertainties. That expansion would almost certainly result, sooner or later, in the constitutional problem that Bingham fears – a clash between the judges and Parliament. As has been demonstrated relatively recently (in the BAE/Saudi case), it is possible for judges to open themselves to the accusation of usurping the role of the legislature by being inventive in their search for legal principle necessary, as they see it, to protect the rule of law or, even, to assuage their own moral outrage.
Although we would be left with another problem, the incompatibility that worries Bingham disappears if Parliament is right in its declaration of the rule of law as an existing constitutional principle but wrong in the assertion of its own sovereignty. In his lucid and interesting book, Bingham, now (rather endearingly) emphasising that his service to us as a judge has ended by identifying himself as Tom Bingham, has, probably unintentionally, opened up this possibility.
The Sovereignty of Parliament has a strange history. This has been examined extensively by Professor Jeffrey Goldsworthy in a book, The Sovereignty of Parliament, admired greatly by Bingham. Goldsworthy describes how, in the fourteenth and fifteenth centuries Parliament (deemed to represent the wisdom of the nation) emerged as the most authoritative institution, the highest court, in the realm, apart from the monarchy itself. It is understandable therefore that by the seventeenth century it was well established that the judges could not and should not overturn an act of Parliament. Their role, with due deference to the seniority of Parliament, was to interpret what Parliament enacted. What is less understandable was the leap from ‘Acts of Parliament are the law’ to ‘There is nothing that Parliament cannot do’. Goldsworthy gives a number of explanations: they all boil down, very broadly speaking, to an acceptance of the political philosophy that every community requires an ultimate decision maker whose word is final.
However no one, to my knowledge, has ever claimed that the Parliament which emerged triumphant in the seventeenth century (The King in Parliament) had greater power than the sovereign it replaced (The King, in Parliament). And Bingham demonstrates convincingly, in his discussion of historical milestones on the way to the rule of law, as we know it today, that absolute power had not been accepted in England as residing in the monarch since the thirteenth century. Despite all the misunderstanding of what it was, Magna Carta is extremely important in this context. Chapters 39 and 40, the latter reading in translation To no one will we sell, to no one deny or delay right or justice, do not have the added words ‘unless the rest of you say we can’. This suggests strongly that there was an insistence already then that there are such things as ‘absolute’ rules (God, or custom, determined, perhaps) and that there are ‘proper’ limits to the sovereignty of anybody or any thing. Indeed, Bingham comes close to saying this himself when at the conclusion of a section in his book on the abolition of torture he says, ‘There are some things which even the supreme power in the state should not be allowed to do, ever.’
Of course, this leaves open the question of how, without the benefit of divine intervention, to deal with a sovereign that breaks an absolute rule. Suppose our Parliament passed a law both abolishing the right to apply to the courts for judicial review of executive action and declaring that the rule of law was, in that respect, not a constitutional principle - a clear denial of justice. Who deals with the problem? This is not a hypothetical question. In 2004 the Blair administration came close to creating the problem by making a proposal (later withdrawn) that any legal challenge to decisions of a statutory tribunal dealing with questions of asylum and immigration should be precluded.
There are a number of possible answers. As Goldsworthy points out, one of them is political, ‘rebellion’. Can rebellion be lawful? Another is for the judges to assert the right to strike the legislation down. But to what effect? It is not clear how either of these tie in with the rule of law. And that may be one of the most powerful arguments for making the law itself sovereign by means of a written constitution. I hope Tom Bingham writes a further book for us in which he expands on and examines these questions.
I hope also that in such a further book he examines the relationship between the rule of law and justice. His eight sub rules do not say much about this. Justice is not simply a matter of access to the courts: it goes also to whether the law applied by the courts is itself ‘just’. Does the rule of law require justice in that sense? This raises the question of the right to disobey an unjust law. Professor Ronald Dworkin has argued that there are circumstances in which it can be right to draw attention to an unjust law by breaking it and submitting oneself immediately for trial and punishment by one’s peers. What does the rule of law say about that?
This question of justice is relevant to a topic discussed extensively by Bingham, the International Legal Order, and particularly what constitutes a just war. In his discussion he takes the opportunity to explain why he believes that the invasion of Iraq in 2003 was unlawful and therefore, as I understand the expression, unjust. He sets out his reasoning with great clarity and is careful to disclose that Jack Straw and Lord Goldsmith strongly challenge his conclusions and that others may also do so. His first sub rule states that the law must, so far as possible, be intelligible, clear and predictable. It is, to say the least, disturbing that there should be any room for doubt as to what resolutions of the Security Council mean and that there has to be resort to what they ‘arguably’ mean. Justice and uncertainty are bad bed-fellows!
The theme of justice is relevant to further remarks by Bingham about the requirements of the rule of law in the international order. He says, ‘If the daunting challenges now facing the world are to be overcome, it must be in important part through the medium of rules, internationally agreed, internationally implemented and, if necessary, internationally enforced.’ I would add the rider that the implementation and enforcement must be even-handed and non-discriminatory. If one nation or community believes, rightly or wrongly, that the rest of the international community regards the murder of its citizens or challenges to its right to exist as less serious than similar tribulations of others, the whole system inevitably breaks down. There is no rule of law.
The danger of this is not that the world returns to the law of the jungle but in an attempt to secure some form of stability, to the law of talion. This ancient law, best and very incompletely known as ‘an eye for an eye, a tooth for a tooth’, was first described as applying in ancient Babylon to its nobility. That nobility came from a formerly nomadic desert tribe of Amorites that had conquered Babylon, a long established city with its own laws and customs. The Amorites valued talion: its harshness and immediacy promoted stability by inhibiting tribal feud. Based, as it was, on retaliation it saw nothing wrong in the punishment of the innocent. In Babylon if a negligent builder caused your house to collapse resulting in the death of your son, you were permitted to kill his son.
It may be that we can hear the echoes of talion already. I am uncomfortable with the reasoning that results in the shredding of civilians, men women and children, in the course of a so-called just war being described as ‘collateral damage’. And I am uncomfortable with the argument that a just cause pursued unjustly remains a just cause. Both seem to me to represent extremely slippery slopes. I think Tom Bingham would agree with me.