I came across this classic book on ‘The Rule of Law’ written by Tom Bingham, a man described by The Guardian (of the UK) as “the most eminent of our judges”, a man who had held three offices successively as Master of the Rolls, Lord Chief Justice of England and Wales and Senior Law Lord of the United Kingdom. What attracted me to the book was the title: ‘The Rule of Law’—a subject dear to the heart of a journalist writing a law book titled COURTROOM AND LAW FIRM STRATEGIES. Reading it however, I discovered it was written by this legendary judge not with lawyers in mind which made the book even more appealing. As a judge, Lord Bingham ruled that detention of foreign terror suspects without charge breached their human rights. He died of lung cancer at 76 on September 11, 2010, leaving behind this book:
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In 2006, I was asked to give the sixth Sir David Williams Lecture at the University of Cambridge. This is an annual lecture established in honour (not, happily, in memory) of a greatly respected legal scholar, leader and college head in that university. The organisers generously offered me a free choice of subject. Such an offer always poses a problem to unimaginative people like myself. We become accustomed at school and university to being given a subject title for our weekly essay, and it was rather the same in legal practice: clients came with a specific problem which they wanted answered, or appeared before the judge with a specific issue which they wanted (or in some cases did not want) resolved. There was never a free choice of subject matter.
I chose the subject ‘The Rule of Law’. I did so because the expression was constantly on people’s lips, I was not quite sure what it meant, and I was not sure that all those who used the expression knew what they meant either, or meant the same thing. In any event, I thought it would be valuable to be made to think about the subject, the more so since the expression had recently, for the first time, been used in an Act of the British Parliament, described rather portentously as ‘an existing constitutional principle’.
The legal correspondents of the leading newspapers largely ignored the lecture (save on one relatively minor point), understandably regarding it as old hat, and it certainly lacked the kind of outright criticism of the government which whets the appetite of legal correspondents. But Martin Kettle, writing in the Guardian on 25 November 2006, thought the subject of some importance and suggested ‘we need leaders who better understand the rule of law’. (On the same day the newspaper carried a headline asking ‘Is this judge the most revolutionary man in Britain?’, having a couple of years earlier described me as ‘the radical who is leading a new English revolution. This would have surprised my former tutor, the distinguished historian Christopher Hill. But the headline question was left unanswered, and I should warn those who look to this book for a revolutionary action plan that they are doomed to disappointment.) Since then, interest in this subject has, I think, continued to grow, fortified by concerns about the interrelationship between the rule of law, human rights and civil liberties on the one hand and security against terrorist attack on the other. The subject is one which merits consideration at greater length than is possible in a lecture. But in this book I have drawn heavily on what I said in that lecture and in others.
This book, although written by a former judge, is not addressed to lawyers. It does not purport to be a legal textbook. It is addressed to those who have heard references to the rule of law, who are inclined to think that it sounds like a good thing rather than a bad thing, who wonder if it is all about and would like to make up their minds.
CHAPTER ONE: The importance of the Rule of Law
Credit for coining the expression ‘the rule of the law’ is usually given to Professor A. V. Dicey, the Vinerian Professor of English Law at Oxford, who used it in his book An Introduction to the Study of the Law of the Constitution, published in 1885. The book made a great impression and ran to several editions before his death and some after. But the point is fairly that even if he coined the expression he did not invent the idea lying behind it. One author has traced the idea back to Aristotle who in a modern English translation refers to the rule of law, although the passage more literally translated says: ‘It is better for the law to rule than one of the citizens’, and continues: ‘so even the guardians of the laws are obeying the laws’. Another author points out that in 1866 Mr. Justice Blackburn (later appointed as the first Lord of Appeal in Ordinary, or Law Lord) said: ‘It is contrary to the general rule of law, not only in this country, but in every other, to make a person judge in his own cause…. The same author points out that the expression ‘The Supremacy of the Law’ was used as a paragraph heading in 1867. So Dicey did not apply his paint to a blank canvas. But the enormous influence of his book did mean that the ideas generally associated with the rule of law enjoyed a currency they had never enjoyed before.
Dicey gave three meanings to the rule of law. ‘We mean, in the first place,’ he wrote, ‘that no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. Dicey’s thinking was clear. If anyone—you or I—is to be penalized, it must not be for breaking some rule dreamt up by an ingenious minister or official in order to convict us. It must be for a proven breach of the established law of the land. And it must be a breach established before the ordinary court of the land, not a tribunal of members picked to do the government’s bidding, lacking the independence and impartiality which are expected of judges.
Dicey expressed his second meaning in this way: ‘We mean in the second place, when we speak of “the rule of law” as a characteristic of our country, not only that with us no man is above the law, but (which is a different thing) that here, every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. Thus no one is above the law, and all are subject to the same courts. The first is the point made by Dr. Thomas Fuller (1654-1734) in 1733: ‘Be you never so high, the Law is above you. So, if you maltreat a penguin in the London Zoo, you do not escape prosecution because you are Archbishop of Canterbury; if you sell honours for a cash reward, it does not help that you are Prime Minister. But the second point is important too. There is no special law or court which deals with archbishops and prime ministers: the same law, administered in the same courts, applies to them as to everyone else.