Some notes on the late Tom Bingham’s “The Rule of Law”

I bought this book some years ago in a bookshop near Westminster station, after an oddly encouraging and uplifting visit to Parliament, to have a tour round and tea with an MP (who will have to remain nameless). We won the tour and tea at a raffle at a village fete in the midlands.

“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 (in general) in the future and publicly administered in the courts”

This, he argues, is the core principle of the rule of law – that is, that everyone is bound by and subject to, the same law, and everyone is entitled to the benefit of that same law. 

The law should be publicly known – that is, it can’t be secret or hidden.  You might need to be a lawyer to know it at all well – but the basic principles and the full text of the law should be freely available to all people at all times. The state and it’s agents can’t just make up crimes, offences or law as they go along. Nor can the law be kept secret: it should be known what is, and what is not, against the law.

The law should be dispensed or administered in courts of law that are public rather than in private. Trials should be held in public and reporters and interested parties should be allowed to witness what is happening. There should be no secret trials – though this principle can be challenged in certain circumstances such as national security, or when dealing with copyright matters, or in divorce courts.

The law applies in general to the future – what this means is, you can’t be prosecuted for something that was not against the law at the time of the alleged offence. The state can’t make something in the past retroactively against the law: you can’t – or oughtn’t –  criminalize the past. To me this is important, because doing just that – criminalizing or demonizing past behaviour –  has become a common practice in our society today.

Tom Bingham quotes someone called Dicey:

  • No person is punishable or can be lawfully made to suffer in body or goods unless there is a breach of the law established in the ordinary courts.

That is, everyone should be free from arbitrary or random treatment of any kind whatsoever, unless they have broken a law which was already known about at the time of the offence. You can’t just be imprisoned, or your property confiscated, because you offended someone powerful. That of course may well happen to you even here in the UK – but because there is generally respect for the rule of law, you would be able to bring the case to court. There are plenty of big important countries where doing that would be a waste of time or worse.

A side-effect of this principle is that you can’t be treated in an arbitrary way by anyone – much less the state or it’s representatives. If someone assaults you in the street, or someone refuses to trade with you because of your ethnicity, or someone breaks your windows or harasses your family – you can take them to court, because all these things are forbidden in law that is known and respected now.  

  • No-one is above the law – the law is above all persons and all authorities.

The same law applies to the Queen, the Prime Minister, captains of industry, the richest and most powerful in the land, as applies to those who sleep rough in the streets. This is another vital principle – that no-one is above the law. It can be quite hard to understand. King Charles I asked his Lord Chancellor to do something, and that man declined to do what the King asked, as it was against the law. The King replied that HE, as King, was above the law. The Lord Chancellor replied, “But I, Sire, am not”.  But if no-one is above the law, who then can make law?

  • The constitution springs from precedent and case law, not vice-versa.

This is subtle; it means to me that the law springs UPWARDS from the people, not DOWNWARD from the state. (This may be a peculiarity of English Common Law not applicable in Europe.) Who then, makes the law? An agreed body of elected people, representing the wider population, have the authority to make the law – a parliament. The authority to make law ultimately springs from the people who voted them in. This body is called the legislature. The law is administered, interpreted and applied by judges and magistrates – the judiciary. They do not enforce or execute the law – this is done by the executive. In the UK though the Monarch in theory has executive power, in practice the Executive is the Prime Minister and the Cabinet – informally known in the media as “the government”.

Habeus Corpus: This Latin expression means “have a body” and a “writ of habeus corpus” means a legal requirement to demonstrate in court whether you are or not holding any given person or persons, as a prisoner. The principle effectively prevents imprisonment without trial, and renders it very difficult for the state to cause people to just “disappear” overnight with no explanation (as in Nazi Germany, Stalin’s Russia and diverse other locations.)

Bingham argues that a writ of habeus corpus can be issued for someone arguably illegally committed to a mental hospital – “sectioned” as we say today. I argue that this is important, for having someone confined as insane or a danger to themselves and others under the Mental Health Act is an obvious way to imprison someone without trial.

Reasonableness

A side-effect of the rule of law is that where the law is concerned, there can be no black and white, nor absolute right and wrong. Two people can be take opposite views and yet both be right.  There can be no sacred cows. Bingham writes:

  • Two reasonable persons can perfectly reasonably come to opposite conclusions on the same set of facts without forfeiting their title to be regarded as reasonable
  • Not every reasonable exercise of judgement is right
  • Not every mistaken exercise of judgement is unreasonable

An “inescapable consequence”, he  goes on, “of living in a state governed by the rule of law” is that judges can and will challenge the (legality of) decisions made by the government and (sometimes) they will be successful in those challenges. He notes “there are countries where all judicial decisions find favour with the powers that be” but none of us would wish to live in such places.

Terrorism

He quotes Cicero: SALUS POPULI SUPREMA EST LEX which is translated into English as, “the security of the people is the supreme law”.  He notes John Selden (1584-1654) who said “there is no thing in the world more abused than this [Cicero’s] sentence.” As Bingham himself notes, it was Benjamin Franklin who said “he who would put security before liberty deserves neither”.

I take Selden’s view and Franklin’s view: Cicero was quite wrong. If you’ve done nothing wrong, you have MUCH to fear. Be afraid: be very afraid.

Bingham writes “we cannot commend our society to others by departing from the fundamental standards which make it worthy of recommendation”.

As with much of these Bingham quotes, it is well to say it out loud several times, keep it on your tongue and savour the taste and sound. He says that by relaxing or removing those hard-won civil liberties, we become no better than the terrorists themselves. We cannot and ought not “fight fire with fire”.

All of this seems particularly apposite at present when in the last nine months, in defence of the NHS, we have tossed aside civil liberties that date back centuries. I could wish that in the next 10-15 years we will see the Coronavirus Act 2020 repealed, but I don’t see it as likely. Far from it: I foresee a time when negative public criticism of the restrictions on our civil liberties – designed as they are with the best of intentions – may be treated as public order offences.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s