We cannot protect freedom by law alone

In the second review of the book on the rule of law by Lord Bingham, the former lord chief justice, Keith Ewing argues that far from being crusaders for the rule of law, our judges regularly fail to protect human rights

Tom Bingham

Tom Bingham, The Rule of Law, Allen Lane, £20.00 (available from Amazon.co.uk for £12)

In the second review of the book on the rule of law by Lord Bingham, the former lord chief justice, Keith Ewing argues that far from being crusaders for the rule of law, our judges regularly fail to protect human rights. See also John Jackson on Tom Bingham in Lord Bingham’s Footsteps.

I.

In one of its first ever decisions, the new Supreme Court declared that the government's far-reaching provisions freezing the assets of terrorist suspects were ultra vires. The court did not, however, provide that these illegal measures were to be invalid with immediate effect. Rather, it gave the government 40 days and 40 nights to change the law to make lawful that which had been declared unlawful.

True to form, the government did just that. The short and little noticed Terrorist Asset-Freezing (Temporary Provisions) Act 2010 of only three sections declares retrospectively that the unlawful provisions of the asset freezing Orders "are deemed to have been validly made", and that "the prohibitions and obligations imposed by [them] have legal force".

So much then for the rule of law and parliamentary sovereignty, matters both addressed by Lord Bingham's new book. It is not clear who is most at fault here: the Supreme Court in failing to annul unlawful government action with immediate effect, or a craven Parliament willing to rush through unconstitutional legislation at high speed. Let's call it a draw, but ask also where was the press to comment on this constitutional outrage?

II.

As is the practice of modern judges, Lord Bingham wrote extensively while still a member of the Bench. Two of his most powerful pieces (published in the Cambridge Law Journal and the King's College Law Journal respectively) form the core of this book, by means of which the articles in question are now accessible to a much wider audience.

These articles (both based on speeches) were prompted by political events, the first on the rule of law in apparent response to government's plans to limit judicial review in certain asylum cases; and the second on parliamentary sovereignty in apparent response to a suggestion by three Law Lords that the courts could without authority from Parliament refuse to apply legislation for indeterminate reasons.

The main strength of the book lies in the discussion of the rule of law, where a bold attempt is made to define what the rule of law means. Is it simply a duty on the part of citizens and state to respect and apply the law validly made, whatever the law may say? Or does it mean more than that, in the sense that a rule must comply with some irreducible minimum core before it can be said to be law?

Nowadays most people would accept the latter rather than the former position, though there is a danger that this collapses into incoherence when we begin to say what this minimum core should be, simply because it exposes disagreements between citizens and state, but more importantly between citizens themselves. Sometimes it collapses into incoherence because such formulations reveal inconsistency by the author.

An element of this is to be found in Lord Bingham's formulation of the rule of law. One of his eight principles is the need to respect fundamental human rights. But as Lord Bingham himself acknowledges, "there is no universal consensus on the rights and freedoms which are fundamental, even among civilised nations" (page 68), implying that there may be certain human rights standards which are not fundamental. But what happens if these fall within his eighth principle which requires obedience to obligations under international law?

III.

These are no doubt concerns that can be overcome. For my part I would be happy to say that the rule of law is not the rule by law, and that it requires the government to follow and apply the law by which it is bound, from whatever source, domestic or international. What I am less confident about, however, is the capacity of British judges to apply these principles willingly, convincingly and effectively.

Although it is thus currently fashionable to worship at the feet of the judiciary whose every minor advance is elevated into a triumph of epic proportions, a little digging reveals that the record tells a rather different story. Despite judicial claims that the rule of law is the fundamental principle of the British Constitution, and despite the empowering by the Human Rights Act of the judges to apply it, the empirical record is very poor.

So what does the record show? It shows that the House of Lords (i) upheld the DNA database (not a breach of privacy), (ii) approved the "kettling" of demonstrators as an acceptable police practice (not a breach of freedom of assembly), and (iii) permitted the stop and search of journalists under the Terrorism Act 2000 (not a breach of a wide range of rights contained in the European Convention).

And while we are at it, the same court has upheld the use of control orders for periods of up to 16 hours a day (making light of the right to liberty); it has approved the use of secret evidence in terrorism cases so that people have been detained without knowing the case against them (making a fool of the right to a fair trial); and it has banned the use of torture evidence only if the court can be persuaded beyond reasonable doubt that torture has been used.

We could go on. We could mention the upholding of the tightly worded Official Secrets Act 1989. We could refer to the decision to send people back to cruel regimes where they will be put on trial, with evidence obtained by torture used against them. And we could recall again the Supreme Court's finding the oppressive legislation on terrorist funding to be ultra vires but then postponing the effect of its decision to give the government 40 days to bring forward amending legislation.

IV.

And we could go on, and on, and on. Let me just ride one other hobby horse. British trade unions and British trade unionists (of whom there are roughly six million) have the lowest levels of protection in the EU; for example, we are the only country of the original 15 member states where less than half the workforce is covered by a collective agreement.

Our law has been said to be in breach of international treaties (ILO Conventions 87 and 98, and the European Social Charter 1961). The European Court of Human Rights has now said that article 11 of the ECHR (on freedom of association) must be read to mean that it includes the right of trade unions to bargain collectively and the right of trade unions and workers to take collective action (i.e., to strike).

But not only that. In so holding on 12 December 2008, the Strasbourg court said that the substance of these rights must be consistent with the minimum standards laid down by the ILO and the Council of Europe in its Social Charter of 1961. In a timely reminder of British violation, the ILO Committee of Experts issued its strongest condemnation of British law only two weeks ago, expressing "serious concern" about the lack of trade union rights in this country.

Since the Strasbourg court addressed these matters (in a unanimous decision of 17 judges in the Grand Chamber), the issue has come before the English courts. The Human Rights Act imposes a duty on the part of our courts to have regard to the jurisprudence of the Strasbourg court when applying Convention rights in London. True to form, the Court of Appeal took a look at the Strasbourg jurisprudence, did not like what it saw, and proceeded duly to ignore it.

As a result trade unions have been swept up in a new wave of injunctions by aggressive cost-cutting employers, who have stopped bus workers, electricians, and cabin crew from taking collective action in defence of jobs and working conditions. These injunctions have been granted, despite the overwhelming support for industrial action in ballots of members, for absurd technical breaches of balloting and notice rules, rules which have themselves been found to violate international human rights standards.

V.

The rule of law is an indispensable principle of constitutional government (and indeed is an undefined statutory principle, set out in the Constitutional Reform Act 2005). Ultimately it is the responsibility of government to ensure that the principle means something in practice, and that it is not simply a woolly principle with which to confuse first-year law students. Lord Bingham has done a good job in making it accessible and explaining why it is important.

However, we are deluding ourselves if we think that the courts can be the first line of defence in the war on personal and collective freedom. I regret that this irritates lawyers who see themselves engaged in some great moral crusade for liberty, England and St George, or something like that. But if you are reading, come down from the charger and take a good look at what you have left behind. There must be a better way than litigation to protect the rule of law, however paradoxical that may seem.

As I get off my hobby horse, I see the human rights of trade unions and trade union members traduced first by the common law, violated by the European Court of Justice, and ignored by the domestic courts. If - per Lord Bingham - the rule of law means protection of human rights, I see the violation of the rule of law by the judges creating common law rules, and the violation of the rule of law by judges who fail to apply Convention rights as enriched by the Strasbourg court.

And I think to myself, why can't we get access to Convention rights more quickly, by cutting out the London middleman?

Keith Ewing is Professor of Public Law, King's College London; his new book 'Bonfire of the Liberties' is published by OUP on 11 March 2009

About the author

Keith Ewing is Professor of Public Law, King's College London.