I believe that Tom Bingham, the former Lord Chief Justice whose life is to be commemorated next week in a service at Westminster Abbey, was the greatest Briton of his era. Lord Bingham’s special importance stems from the desperate circumstances of the first decade of the 21st century, which was marked by the emergence of an unusually powerful and arrogant political elite determined to launch a fundamental and brutal attack on British values and institutions.
Careerist officials permitted the Civil Service to be colonised by New Labour, ambitious spy chiefs exchanged personal integrity for political access, while the House of Commons for a time abandoned its constitutional role as an independent check on the executive arm of government.
Indeed, only one British institution emerged with any real credit: the judiciary. Through much of this period, Lord Bingham was Britain’s senior law lord. He was obliged to confront some of the most powerful and subversive attacks ever launched by any British government on individual freedom and the integrity of the legal process.
After the bombing of the Twin Towers on September 11, 2001, Tony Blair and New Labour made the popular and politically compelling argument that the circumstances created by what they called the “War on Terror” meant that the rule of law should be set aside. Lord Bingham disagreed: “There are countries in the world,” he drily noted, “where all judicial decisions find favour with the government. But they are not places where one would wish to live.”
What followed was a clash between the judiciary and the executive on a scale hardly seen since the conflicts of the 1620s, which created the basis for the English common law. New Labour set out to abolish habeas corpus, compromise trial by jury, and undermine the rule of law itself by authorising a series of attacks on judges by senior politicians.
The biggest battle came over counter-terrorism. At the end of 2004, the Law Lords ruled that the 2001 Anti-terrorism, Crime and Security Act – the emergency legislation rushed through after 9/11 – was incompatible with the Human Rights Act because it enabled the British government to imprison foreign terror suspects without charge, thus undermining the ancient principle of habeas corpus.
This decision plunged government into crisis and, naturally, an attempt was made to nobble Lord Bingham. He received an approach from Charles Clarke, the Labour home secretary, suggesting a private meeting. This was a characteristic technique from New Labour: an attempt to subvert formal procedures and undermine institutions by developing an irregular private relationship.
Typically, Lord Bingham would have none of it. “I said: ‘What is the purpose of this meeting?’ because it is quite clear that there are some matters it would be quite inappropriate for the Law Lords to discuss. ‘I can’t believe,’ I said, ‘that this is intended to be a purely social meeting.’
“The answer I was given was that it was to be a purely social meeting. One was, perhaps, a little sceptical. I took the view that it was very unwise for such a meeting to take place.”
Desperately important principles were at stake in this struggle between the executive and the judiciary. This was often difficult to comprehend at the time, because the fashionable philosophical doctrine of postmodernism has emptied meaning from serious discourse by denying that there is a difference between truth and falsehood, or right and wrong. So everything is relative, or a matter of personal taste, or simply a manifestation of naked power.
But Lord Bingham defied the spirit of the age by showing that in such a treacherous intellectual environment, the rule of law can provide coherence and certainty. Shortly before he died, he published his masterpiece. The Rule of Law is a short work – it was awarded the Orwell Book Prize this week, an inspired decision by the judges – which beautifully sets out the argument that the phrase that comprises its title is not an arid doctrine, but the foundation for a fair and just society.
The book argues that there are eight conditions for the rule of law to work: the law should apply equally to all; it should not be accessible only to the rich, meaning that disputes should be solved relatively cheaply; it must be easy to understand; it must protect fundamental human rights; it must be speedily enforced; the right to a fair trail is a cardinal requirement; public officials should not abuse their powers; and, finally, states should respect international law.
The proposition that the law should be intelligible meant taming what Lord Bingham called “the legislative hyperactivity which appears to have become a permanent feature of our governance”. Every year of the past decade has produced a torrent of new legislation and thousands of fresh statutory instruments, often meaningless even to those who designed them.
Lord Bingham’s insistence that governments should pay attention to international law brought him into conflict with New Labour. Praised by all lawyers who dealt with him as the most brilliant legal mind of his time, he was in no doubt that the invasion of Iraq was “a serious violation of international law”. He told friends that this was one of the few issues on which he “was entirely free from doubt.”
Today, it looks as if David Cameron is making a comparable mistake in Libya. What started out as a legal humanitarian intervention has turned into an illegal war seeking regime change and targeting the country’s leadership. This change has scarcely been noted, but the Cameron Government will in due course pay a price for such a stealthy change to its war aims.
Lord Bingham was one of the most powerful supporters of the Human Rights Act. He was exceptionally clear that the rule of law “compels the exclusion of third-party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles that should animate a tribunal seeking to administer justice”.
Here again, the Cameron Government is repeating Tony Blair’s errors. Last week, it emerged that the already pathetically weak Gibson inquiry into British complicity with torture is to be further undermined by excluding serious consideration of the disgusting practice known as “extraordinary rendition” – the handing over of terrorist suspects to foreign governments for often brutal interrogation.
The past 15 years have seen the emergence in Britain of a new political elite. In its personal dealings (consider the warm sympathy felt towards David Laws in spite of his fraudulent expenses application), it considers itself immune to the law of the land. Publicly, it is often contemptuous of the rule of law.
The emergence of this new elite has done terrible damage to the reputation of Britain as a decent, law-abiding and tolerant country. This damage would have been far greater but for the integrity and independence of the British judiciary. That is why, from a decade marked by its greedy bankers, venal politicians, compromised spymasters and failed generals, Lord Bingham will be remembered as the most admirable and virtuous figure of his time.
Cross posted with thanks from The Daily Telegraph. OurKingdom published two responses to Tom Bingham's The Rule of Law: by John Jackson (which links to his pieces on him, including Lord Bingham's Remarkable Journey) and by a more sceptical Keith Ewing.