Lord Bingham is, of course, a man who not only studied history at Balliol but for whom history remains a passion. So, not surprisingly, the first part of the book is devoted to explaining how we arrived at the principle of the rule of law as we know it today in this country. While not everyone will agree with his choice of historical milestones (old friends from his judgments, from Magna Carta to the Universal Declaration of Human Rights, via the Civil War and the Parliament Act), Lord Bingham’s account of the origins of the idea of the rule of law serves to place the contemporary debate in a broader context.
The real meat of the book is in the second half. In the space of eight chapters (sometimes a little too obviously derived from individual lectures) Lord Bingham reveals the breadth of what he understands by the rule of law. For those who support what he calls a “thin” definition of the rule of law, one that only looks at how laws are made and applied, the book will make uncomfortable reading. His definition is “thick” – the rule of law is as much about “good” laws and “bad” laws as it is about procedural safeguards or constitutional structures. So we are told that the rule of law requires adequate protection of fundamental human rights. The rule of law is also said to require states to comply with their international law obligations – an idea that is nowadays a leitmotif in counsel’s arguments in public law cases. Lord Bingham’s discussion of international law provides the setting for his analysis of the legality of the war in Iraq. His view (“unlawful”) will come as no surprise to those who know him. Whether or not one agrees with his analysis – and the opposing view gets pretty short shrift – it makes compelling reading and is, predictably, the part of the book that has caught the eye of the press.
A blunt message
The third, and final, part of the book deals with the rule of law in relation to terrorism and parliamentary sovereignty. As a judge, Lord Bingham had to grapple with difficult issues about measures designed to deal with terrorism. Now freed from the shackles of judicial restraint, on terrorism Lord Bingham delivers a message to the Executive and to Parliament that is blunt and, again, not unexpected: “he who would put security before liberty deserves neither” (Benjamin Franklin). But when it comes to the sovereignty of Parliament, just as in his speech in the hunting case, Lord Bingham refuses to be seduced by the new theories which seemed to attract Lord Steyn and Lord Hope: for him, Parliament can, in the end, legislate in a way which infringes the rule of law. If the courts were to try to interfere with Parliament’s powers in this respect, they would be upsetting a principle that has been recognised as a fundamental part of our constitutional set-up for hundreds of years. In his view, the judges lack any democratic mandate to make this change. Time will tell whether the Supreme Court will remain faithful to the approach which Lord Bingham so strongly endorses. But his cautionary words will certainly carry weight: the law reports show that (rightly) judges are rarely comfortable when they find themselves disagreeing with him.
A very rough count suggests that the Law Lords referred to “the rule of law” approximately twice as often between 2000 and 2009 as between, say, 1970 and 1979. As Lord Bingham explains, some distinguished scholars are sceptical of the value of such references. What is really added by saying that some decision or action is “contrary to the rule of law” as opposed to, say, arbitrary or irrational? What Lord Bingham provides, however, is a powerful account, from one of the truly great judicial minds, of how he understands the concept and why he regards it as an ideal that should remain centre stage. For that alone, readers of this journal will naturally want to read his book. Indeed, some counsel have already gone further and cited it as authority in the Supreme Court. But Lord Bingham is undoubtedly aiming at another kind of reader – perhaps that elusive figure, “the general reader”, at whom Pelican books used to be aimed. For Lord Bingham plainly realises that, if the concept of the rule of law is to play a meaningful role in our national life, it cannot exist exclusively within the sphere of academic and judicial debate. It must also be understood and appreciated by the wider public. The Rule of Law is well designed to promote that understanding. Therein, perhaps, lies its particular merit.
Lord Rodger of Earlsferry is a Justice of the Supreme Court