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.
Take his first sub-rule: “The law must be accessible and so far as possible intelligible, clear and predictable”. Certainly it would be nice if this were the case, but one cannot point to any particular place where this is enshrined as a constitutional principle. The nearest thing we have as a principle we all know about actually states the opposite: “Ignorance of the law is no defence”, assuming ignorance includes lack of understanding as well as lack of knowledge. Imagine a shoplifter, for example, who has read the statutes and the case law, standing in the dock and claiming (perfectly correctly): “The law is not intelligible, clear and predictable. There is no case to answer!” Would the continuation of a prosecution breach any known constitutional rule? Would it breach the rule of law? Not at all.
Bingham’s second sub-rule is this: “Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion.” Discretion is arbitrary unless exercised on the basis of agreed principles. It can be used to favour some or to oppress others. Yet discretion is used all the time, by judges and the executive and even petty officials. Bingham himself notes that the Home Secretary is often urged to exercise discretion in this or that immigration case. But if it were so exercised once, the next person in the same circumstances must, in justice, have the discretion exercised in the same way, otherwise the second person has been oppressed in relation to the first.
Take the Gurkhas. Following campaigns on their behalf, not least in the Daily Mail, the Government came up with a special set of rules for some of the former soldiers of particular, narrowly defined ethnic groups from a specific small country allowing them indefinite leave to remain in Britain. Other individuals will not have this right. Bingham is perfectly right. Even “good” discretion is bad and contrary to the rule of law – yet it is practised all the time in the name of the higher aim of naked political expediency.
The Gurkhas’ case is related to Bingham’s third sub-rule – and also indicates it is a desideratum rather than a reality: “The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.” Bingham actually amends and relaxes the basic rule of law here, allowing the legislature, executive and judiciary, how can one put it, a certain discretion to direct laws against or on behalf of certain individuals and groups – but only if there are objective reasons to do so.
‘We would regard legislation directed to those with red hair (to adapt Warrington LJ’s long-lived example) as incompatible with the rule of law’
He starts by considering where this would not, in his view, be acceptable, looking briefly at the well-worn example of people with red hair. In Short v Poole Corporation  Ch 66, Warrington LJ uses the unfounded prejudice against red hair as an exemplar of irrationality if acted upon by an executive authority:
“It may be also possible to prove that an act of the public body, though performed in good faith and without the taint of corruption, was so clearly founded on alien and irrelevant grounds as to be outside the authority conferred upon the body, and therefore inoperative. It is difficult to suggest any act which would be held ultra vires under this head, though performed bona fide. To look for one example germane to the present case, I suppose that if the defendants were to dismiss a teacher because she had red hair, or for some equally frivolous and foolish reason, the Court would declare the attempted dismissal to be void.” –  Ch. 66 at 91.
Warrington’s point is to say that, outside corruption or bad motive, it would be hard to find a decision of an authority so irrational as to be declared beyond its powers. The case was about an education authority as a matter of policy sacking woman teachers when they got married. That was deemed to be acceptable in a way sacking red-heads would not since hair is an “alien and irrelevant ground” for deciding on employability of teachers (whereas, apparently, marriage status was not).
Times have moved on (more so on the employment of married women than attitudes to ginger-haired people perhaps). Bingham seems to suggest that sacking for red hair would be beyond some notion of “the rule of law” – yet he does not address the real issue about red hair, which is the separate “Ginger-hair test” regarding the sovereignty of Parliament.
This suggests that the British Parliament can pass any law and that judges are bound to recognise it. The law might be a ban on smoking in Parisian streets (the example of Sir Ivor Jennings, Parliament, 1959) or a law to arrest red-haired people and send them to jail or take their property (FA Mann, (1978) 94 LQR 512), or kill blue-eyed babies (Sir Leslie Stephen, The Science of Ethics, 1882) – the examples vary. According to the theory of parliamentary sovereignty, they would all be valid laws and should be recognised by judges in Britain. Thus Lord Campbell in Edinburgh & Dalkeith Railway Company v Wauchope  UKHL J12:
“All that a Court of Justice can do is to look to the Parliamentary roll: if from that it should appear that a bill has passed both Houses and received the Royal assent… due effect will be given to every Act of Parliament, private as well as public, upon what appears to be the proper construction of its existing provisions.”
The French smoking case is intended to show that even though the judges have no authority in Paris they must nevertheless recognise the law. In the others, judges would have the power and obligation to ensure the cells of British prisons were packed with the red-haired or that the streets ran with the blood of blue-eyed infants.
Bingham, in common with commentators generally (and those who came up with these examples), thinks this is rather oppressive, and says: “We would regard legislation directed to those with red hair (to adapt Warrington LJ’s long-lived example) as incompatible with the rule of law.”
But why? The legislation would have been duly passed by two Houses of Parliament, signed by the Monarch and entered on the Parliament roll. It is the law, and judges, if the rule of law means anything, must observe and enforce it.
Bingham disagrees, believing it contrary to the rule of law since it is “based on the peculiar characteristics of such categories” of people, red hair, blues eyes. Additionally legislation directed at individuals is, he asserts, also contrary to the rule of law. He gives the example of the statute 22 Henry 8 cap 9 which convicted Richard Rose, the Bishop of Rochester’s cook, who (allegedly) put poison into the porridge in the bishop’s kitchen.
Yet this piece of legislation, an attainder, was passed by Parliament and the constitutional convention (amounting to an iron law if we are not to be governed by judges rather than Parliament) is that legislation passed by Parliament is to be recognised as law by the courts. Bingham asserts nevertheless his own constitutional convention, (which he considers self-evident), that laws should apply equally to all, except where objective differences justify differentiation. He gives the examples of mentally ill people, prisoners or children, all of whom can have special laws applied to them.
He gives no evidence that this rule actually exists. Indeed he shows it has not applied in the past in the case of the bishop’s cook. The system of bills of attainder involved passing a law against an individual or a group, usually some noble family that had treasonously risen up against the monarch. These bills were certainly oppressive, relying on a political vote in Parliament rather than a trial of the issues before a judge, but there was no constitutional principle against them. Apparently Sir Winston Churchill in 1942 argued for attainder to be used for the execution of Nazis after the war was won to circumvent the courts. Private bills are in a similar category, directed for or against particular individuals, groups or corporations.
Gays in the military
One group Bingham does not mention as unjustifiably having laws directed against them is homosexuals. Indeed, in the famous 1995 “gays in the military” case R v Ministry of Defence, ex p Smith he found it in himself, as Master of the Rolls, to uphold the Ministry of Defence ban on gay people taking up military posts. The appellants had been discharged not for individual failings but because they were members of a group of people, homosexuals, with, presumably, objective differences that “justify differentiation”. Proof of homosexual activity was not needed.
‘A state which savagely repressed or persecuted sections of its people could not in my view be regarded as observing the rule of law’
He justified this position (in effect) by the doctrine of judicial deference (though he disliked the term) – that the courts should defer to the democratically accountable executive and/or legislature in certain areas. The policy, he noted, “was supported by both Houses of Parliament and by those to whom the Ministry properly looked for professional advice”. Famously he said:
“The greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more hesitant the court must necessarily be in holding a decision to be irrational. That is good law and, like most good law, common sense. Where decisions of a policy-laden, esoteric or security-based nature are in issue even greater caution than normal must be shown in applying the test, but the test itself is sufficiently flexible to cover all situations.”
He was upholding the rule of law in its raw form. But he was only upholding his own sub-rule three “the laws of the land should apply equally to all”, insofar as he had added the rider “save to the extent that objective differences justify differentiation”.
So we find the differentiation, the exception, can apply to mad people, children, revolting Barons or poisoning cooks, Victorian railway companies, the gallant Nepalese soldier, gays in the military. The sub-rule is hardly a rule at all, but an invitation to justify any deviation from the rule of law with the likelihood that the courts will defer to the executive in its justification if it can be established that the matter is “policy-laden, esoteric or security-based” or there are objective reasons for the exception.
Bingham points up the weakness of his own arguments on the rule of law in his sub-rule four: “the law must afford adequate protection of fundamental human rights”. He quotes Prof Joseph Raz thus:
“A non-democratic legal system, based on the denial of human rights, on extensive poverty, on racial segregation, sexual inequalities, and racial persecution may, in principle, conform to the requirements of the rule of law better than any of the legal systems of the more enlightened Western democracies … It will be an immeasurably worse legal system, but it will excel in one respect: in its conformity to the rule of law … The law may … institute slavery without violating the rule of law.” – The Rule of Law and its Virtue 1977 (93) LQR 195
Bingham, in Raz’s terms, is actually setting out his ideas of a better legal system rather than defining or explaining the rule of law. He is producing a normative view of law, how it should be rather than what it actually is or how we got there or where we go from here. He says:
“A state which savagely repressed or persecuted sections of its people could not in my view be regarded as observing the rule of law, even if the transport of the persecuted minority to the concentration camp or the compulsory exposure of female children on the mountainside were the subject of detailed laws duly enacted and scrupulously observed.”
Perhaps, but in the real world there is a whole range of imperfect human rights systems and imperfect forms of democracy (including Britain’s) between savage legalised repression and liberal utopia. At what point can we say an acceptable version of the rule of law kicks in? Can you trade away a bit of democracy but improve the poverty figures, have a bit of repression on sexual grounds but not so much racial segregation? Is there a way of calculating the metrics and working out what combinations of imperfect human rights and constitutional principles do constitute the rule of law and which do not? Bingham accepts there is not a universally agreed standard of rights and he regrets, for example, that the United States’ failure to ratify the UN Convention on the Rights of the Child 1989 meant a child of 16 could be executed for murder. But doe that mean the US doesn’t have the rule of law, or do they score higher on other areas and does that make up for it?
‘Legal redress should be an affordable commodity. That it should also be available without excessive delay is so obvious as to make any elaboration unnecessary’
Poverty is an interesting one since neither the US nor Europe enshrines economic rights in their constitutions or the European Convention – except the right to property if you already have property. Should we place not too high a priority on that element of the human rights based rule of law and hope all the other elements make up for it?
Bingham accepts this sub-rule is a little vague. His answer is to say:
“[W]ithin a given state there will ordinarily be a measure of agreement on where the lines are to be drawn, and in the last resort (subject in this country to statute) the courts are there to draw them. The rule of law must, surely, require legal protection of such human rights as, within that society, are seen as fundamental.”
But what about where they are not seen as fundamental in that society, whether the right to life for those of particular ethnic origins or, in the US case, for murderers who are children? Which human rights can we ditch without losing the rule of law?
The fifth sub-rule is particularly pertinent at the moment: access to law, which for many years “was addressed through the civil Legal Aid scheme established in 1948” – and which now, of course, is not quite so much. He suspected, even in 2006, that anti-lawyer tabloid propaganda “may have enabled a valuable guarantee of social justice to wither unlamented”. Bingham says: “The rule of law plainly requires that legal redress should be an affordable commodity. That it should also be available without excessive delay is so obvious as to make any elaboration unnecessary.” And having asserted this obvious fact, he moves on.
There are more sub-rules: government ministers should act “reasonably, in good faith,” (course they should); “adjudicative procedures provided by the state should be fair”; and there must be “compliance by the state with its obligations in international law”.
No one would disagree that all these things “should” be true – except for those who have the power to make them true and the desire that they should not be: the government itself and its usually compliant Parliament (particularly compliant on issues of security).
Bingham is certainly not sanguine about the rule of law as it operates in Britain; far from it. Given the exceptions and failures he points to, it is hard to see that Britain actually meets his rigorous standard at all. None of this has improved since his death.
So Bingham’s view of the rule of law amounts to a wish-list, the things he would like to see. But two things must be said in Bingham’s defence. First, his instincts are right; his sub-rules are just the sort of thing we would like in what we would regard as a properly working legal system. Transparency, access, equality before the law, fairness, all, as noted above, devoutly to be wished.
Secondly he lived through different times. His “judicial deference” (if we are to call it that) was based on a profound belief in the democratic system, that Parliament, and to an extent the Government, did have a superior claim to that of judges who should not seek to second guess ministers, for example, unless they were clearly behaving irrationally (hence the protection of red-heads but not necessarily gays in the military). He also lived through a time of a relatively benign state, not exactly the people’s century – the people’s 50 years at best. It was possible to suggest good ideas to governments that would benefit ordinary people and possible that governments would take them up and enshrine them in legislation. This was the case with the Blair Labour Government, which legislated some remarkably good ideas: the Constitutional Reform Act 2005, which enshrined the separation of powers for the first time ever in statute (separating the Law Lords from the political House of Lords, setting up an independent body to appoint judges) and even, again for the first time, gave a legislative nod to the rule of law (its up there in Part 1, Section 1).
There was the Human Rights Act 1998 and the Freedom of Information Act 2000. These were all great reforming pieces of legislation – and all are currently under attack and liable to have their principles overturned at any moment by the very legislature Bingham put such faith in.
So times have changed and a new view of the rule of law is needed, one that acknowledges that nothing about it is axiomatic or set in any known stone, merely to be revealed by decent coves such as Bingham himself and hailed as indisputable truth by the rest of us.
Times have changed to the extent that we now like gays, whether in the military or in the register office. But we don’t like the working classes and the unemployed and the poor generally. They are not part of our circle, many are foreign, and if they vote at all, they vote the wrong way. That’s why we are curbing their legal rights.
Bingham would not have liked the attack on legal aid. He would suggest perhaps that we are moving towards Raz’s “immeasurably worse legal system” – and we can’t even fall back on the comforting thought that at least we have its (formal) rule of law. Instead we have justice ministers who want a significant level of personal power to appoint senior judges; we have a President of the Supreme Court who considers he can change the law without reference to Parliament; we have a government driving several sizes of coach and horse through any of Bingham’s sub-rules that might have gained some tentative purchase in the legal world.
So in answer to the question how useful is Bingham’s view of the rule of law, one can say: he probably got it wrong – but would that he were still here to argue for it.
Note: Bingham’s lecture, the basis of his book, the Rule of Law, is here (pdf)
His 2009 speech on the Human Rights Act is here
See also a critique of his A v Home Secretary judgment here
Here is a handy long abstract of Raz, ‘The Rule of Law and Its Virtue’ pdf