How useful is Tom Bingham’s view of the rule of law? Through his lectures and book on the subject the former law lord unseated AV Dicey as the go-to guy of the Rule of Law. But what did he bring to it that makes us prefer his view to that of the formalistic and somewhat stuffy old Victorian predecessor?
Dicey’s formula can be summed up thus:
“a. No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the courts of the land;
b. No man is above the law; whatever his rank or condition is, he is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals;
c. It is because England has a constitution that the personal rights and liberties of individuals are always secure. This security comes from being able to go to the law courts to remedy any breach of these rights and liberties.”
Certainly the idea has gained many accretions since Dicey – possibly even been “reduced to incoherence” according to one commentator: “It would not be difficult to show that the phrase ‘the Rule of Law’ has become meaningless thanks to ideological abuse and general over-use”, (Judith Shklar, Political Thought and Political Thinkers, chap 2).
For the purposes of this piece we are talking in particular of Shklar’s Montesquieu version of the rule of law: “Those institutional restraints that prevent governmental agents from oppressing the rest of society”.
The concept has gathered various provisions, thanks to Bingham and others, any or all of which are devoutly to be wished but which don’t necessarily have the real constitutional weight of a “limited number of protective arrangements … meant to benefit every member of society” (Shklar again).
Lord Bingham, in the 2006 Sir David Williams Lecture, starts here: “All persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts”. But he adds to this a set of sub-rules without which he thinks the rule of law cannot (or does not) exist. None of these in fact constitute constitutional principles, nor have they ever done so.