No government is perfect. But when the most revered of these guardians suggests that critical decisions by ministers have fallen short of the rule of law on a range of counts, then it follows that Britain needs a better form of government, whose members can succeed where the current ones have failed and who better understand the real meaning of the principles they claim to support.
Extract from Guardian Comment
We need leaders who better understand the rule of law"When our most revered judge suggests critical ministerial decisions have legally fallen short, it is time for a change ..." wrote Martin Kettle in the Guardian about Lord Bingham's Cambridge lecture http://www.guardian.co.uk/comment/story/0,,1956596,00.html on Saturday November 25, 2006
If the law is to be accessible and intelligible, for example, then there must be an end both to judicial prolixity and to what Bingham calls "the legislative hyperactivity which appears to have become a permanent feature of our governance - in 2004, some 3,500 pages of primary legislation; in 2003, nearly 9,000 pages of statutory instruments." This applies particularly in the "torrent of criminal legislation", not all of which is "readily intelligible". To uphold the rule of law, in other words, lawmakers will have to do less of it and be clearer.
If the law is to apply to all, then governments will also have to accept that the rule of law allows no distinction between British nationals and others. As Bingham says, that is why he ruled against the government's anti-terrorism detention powers in the Belmarsh case. The principle that government cannot pick and choose the people to whom a law applies is a pillar of the rule of law.
The rule of law also implies the protection of human rights. As Bingham powerfully puts it: "A state which savagely repressed or persecuted sections of its people could not ... be regarded as observing the rule of law, even if the transport of the persecuted minority to the concentration camp or the exposure of female children on the mountainside were the subject of detailed laws duly enacted and scrupulously observed."
And the rule of law means little unless people have access to it. That means the protection of legal aid - "a valuable guarantee of social justice" - must also be part of the rule of law.
Above all, Bingham argues, there is the "fundamental" requirement on the government not to exceed its legal powers. This inescapably means that judges will on occasion rule against ministers. "There are countries in the world where all judicial decisions find favour with the government," Bingham observes, "but they are not places where one would wish to live." The rule of law is not served when ministers publicly criticise the judges, he says, singling out Tony Blair and David Blunkett for doing so.
What about international law? Here Bingham enters the Iraq war minefield. The rule of law, he believes, has gained ground since Anthony Eden knowingly defied it at Suez. Today a government would not launch an action it knew was unlawful; nor would law officers publicly support action that could not be justified legally (both of which happened in 1956). But the attorney general's advice to ministers about war should be promptly published: "It is not unrealistic in my view to regard the public, those who are to fight and perhaps die, rather than the government, as the client." The more so, Bingham pointedly adds, when the attorney (currently Lord Goldsmith) is "not susceptible to direct questioning in the elected chamber".
In Cambridge, Bingham delivered a lecture as authoritative as any judicial ruling. At its core is the conclusion that the rule of law must inevitably depend upon a Lockean bargain between the individual and the state. This demands a sacrifice by both of some freedom and power. It inescapably casts the judges as what Bingham calls "the guardians of an all but sacred flame which animates and enlightens the society in which we live". No government is perfect. But when the most revered of these guardians suggests that critical decisions by ministers have fallen short of the rule of law on a range of counts, then it follows that Britain needs a better form of government, whose members can succeed where the current ones have failed and who better understand the real meaning of the principles they claim to support.
OTHER WARMWELL ARCHIVES(opens in new window)