Promoting the Rule of Law

decglobeCounsel put the following questions to the inaugural Director of the Bingham Centre for the Rule of Law.

Your career has been unusual in that you have combined being a professor of law at UCL with work as a university administrator (Dean of Law and Vice Provost of UCL), with practice at the Bar (at Blackstone Chambers) and membership of various public bodies. Which of these activities is most relevant to your work for the new Centre?


It used to be said that academics should not waste time with administration or practice. However, administration helps the understanding of the importance of public law because it exposes you to the complexity of making decisions affecting people’s lives – as well as to the constant temptation to make decisions without regard to rule of law values, such as transparency or public participation.  

There used also to be an iron curtain between academics and practitioners, but for me a massive advantage of teaching law in London has been the possibility of enhancing one’s research and teaching through practice and learning from fellow practitioners and judges. Nowadays there is so much more contact in both directions and indeed many practitioners and judges have enriched the academic study of law. I hope to tap this invaluable source and involve them fully in the work of the Centre.

You have also advised on drafting a number of constitutions, including South Africa and, in your role as UK’s member on the Venice Commission, some of the countries of the former Soviet Union.

I had a small facilitating role in the South African constitution and its statute to promote administrative justice. After the fall of apartheid there was initially a view that a Bill of Rights would impede transformation in South Africa – that rights would be asserted by those wishing to protect their property or to protest against change and transformation. It was soon understood that the harsh and unequal laws of the apartheid years would have been more difficult or even impossible to establish or implement if the rule of law had not been systematically dismantled. Once this was fully appreciated, the rule of law was incorporated as a foundational value of the new South African constitution.

Working with the countries of the former Soviet Union constantly raises the question as to whether the rule of law and fundamental rights generally are values which are confined to liberal, Western countries with an established culture of democracy and are a mere luxury in countries with a more “communitarian” tradition. My view is that the rule of law is a core and necessary element of any democracy.

Is there a danger that the Centre will, as an international centre, be seen as either preaching to the converted or imposing those “Eurocentric” or Western values on countries whose cultural traditions don’t support the luxury of the rule of law?

The rule of law is not a luxury or alien transplant to the individual who is deprived of liberty or is denied access to an impartial judiciary, or is imprisoned without trial. Of course every country is free to choose its own system of governance, and the advisor must be sensitive to local culture, tradition and history. However, the advisor must also be able to distinguish between relative values and values that are absolute in the sense of being fundamental requirements if you claim to be a constitutional democracy.

How will this Centre differ from existing human rights bodies?

There are a number of campaigning organisations, like Liberty, and some that undertake some studies such as JUSTICE and others that concentrate on litigation, such as Interights. There is no body, however, that is conducting high quality studies into rule of law issues in a proactive way. These issues will have to be carefully selected. But think how useful it would have been to have had studies ready on issues such as intercept evidence, extraordinary rendition, decisions not to prosecute, the area of administrative penalties, or the “Henry VIII” clauses in so much of our legislation.

Do you see the Centre as primarily an academic institution?

Yes, but one that will engage quickly and actively with practical issues concerning the rule of law. It will respond promptly to threats to the rule of law that may arise out of legislative proposals or that may not have been sufficiently engaged, world-wide.  In all cases it should concentrate on identifying the relevant principles involved, including international standards, and report the experience of other countries. It should seek to promote discussion of these issues in different ways and organise workshops and national or international meetings.  How useful then for Parliament, government, and indeed campaigning organisations to have access to that kind of material.

Will the Centre collaborate with other bodies here and abroad?

Yes. It should positively seek to work with existing institutions of all kinds, engage in joint projects, meetings and so on. It might also collaborate with national governments seeking to enhance the capacity of their judiciary through training programmes, or in sorting out difficult issues relating, say, to how far judges can be criticised, or the criteria for judicial appointments, or the independence of the legal profession.


Are the resources raised so far sufficient for such an ambitious programme?

Funds already raised are sufficient for two research fellows now. We hope to attract interns from the UK and other countries, and to apply for project grants in due course.

The Centre’s trustees are still actively seeking funds (see “The Bingham Appeal” on p 27). I’m confident that they will be provided out of admiration for Lord Bingham and the importance he rightly attached to the maintenance and promotion of the rule of law by a British Centre, operating internationally.


Profile: Professor Jeffrey Jowell QC

Professor Jeffrey Jowell QC is the founding Director of the Centre. He has successfully combined a very distinguished academic career with a legal practice at Blackstone Chambers.

Previously the Dean of UCL’s Faculty of Law, he has been awarded a number of honorary degrees and awards, including Honorary Bencher of the Middle Temple, Honorary Fellow of UCL and honorary doctorates from the Universities of Cape Town, Athens, Ritsumeikan and Paris.

He is the UK representative on the Council of Europe’s prestigious Commission for Democracy through Law (“The Venice Commission”), was a member of the Royal Commission on Environmental Pollution and was a non-executive director of the Office of Rail Regulation.


The aims of the Centre

The Bingham Centre for the Rule of Law (“the Centre”), which was set up by the British Institute of International and Comparative Law (“BIICL”), focuses on understanding and developing the rule of law.

The Centre will be a lasting tribute to the ideals and achievements of Lord Bingham by promoting and developing the rule of law through comparative research, discussion and training. It will collaborate with other bodies and individuals world-wide. It will contribute to the achievement of more certainty, accountability and legality in different areas of social and economic activity in the United Kingdom and internationally.


The Bingham Appeal

The Bingham Appeal is raising the funds necessary to establish and expand the Centre. To contribute, or request further information, contact Diane Denny, the Institute’s Development Director. E-mail d.denny@biicl.org; or telephone 020 7664 4871.
 
For further information about the Centre visit www.biicl.org/binghamcentre.


A fitting tribute

The Centre is established in honour of Lord Bingham of Cornhill KG, who was the pre-eminent judge of recent generations and a man
of outstanding human and professional qualities. Lord Bingham was also President  of the BIICL and made an  invaluable contribution to its work over many years. The Centre will take forward his lifelong commitment to the rule of law (see also “Lord Bingham:  an appreciation” on pp 23-24 of this issue).


The rule of law: rhetoric or constitutional right?

Professor Jeffrey Jowell QC made a spirited defence of the rule of law when presenting the Annual Lecture of the Constitutional and Administrative Bar Association in November. 

A full Inner Temple Hall heard Professor Jowell, the Director of the Bingham Centre for the Rule of Law, trace the development of the “fiercely contested concept” of the rule of law (as opposed to rule by law). Its history was followed from its origins, through a series of landmark cases to its recognition in the Constitutional Reform Act 2005 as an existing constitutional principle, to the most recent Supreme Court decisions. In so doing Professor Jowell accepted Lord Bingham’s definition of the rule of law as embodying these principles – that all persons and authorities within the State, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts.

Having traced its history, Professor Jowell distinguished the rule of law from the European Convention on Human Rights (“ECHR”), arguing that the rule of law provided a broader platform which should not be overwhelmed by overreliance on the ECHR.

Finally he issued a rallying call for a defence of the rule of law in the face of what he saw as a possible retreat by the judiciary from the high water mark of the mid-1980’s and 1990’s to a position where the rule of law is classified as a basic or fundamental principle, rather than a constitutional right. Professor Jowell said that powerful judicial voices have argued that in extreme circumstances the rule of law may even trump the sovereignty of Parliament should Parliament fail to uphold the rule of law.

 

 

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