The government, still smarting from the prorogation saga last year, is threatening to “reform” the Supreme Court and intimidate judges, to deter them from making supposedly political decisions. It has already announced one review of how the courts work with a loaded remit, and run by a panel with limited relevant experience. This destructive path, followed in the name of patriotism and “taking back control,” reveals a failure to understand the Rule of Law.
What does that phrase, more mouthed than understood, actually mean? No one did more to elucidate it in theory, including in a book of that title, and to put it into practice in shaping the British legal system than the late Lord Bingham, one of the only men in modern times to have occupied all the most senior judicial offices—Master of Rolls, Lord Chief Justice and Senior Law Lord. From his role in forming the UK Supreme Court, to his contribution to integrating the European Convention on Human Rights into English law, there is no comparable English judge.
Ten years since he died, he is greatly missed—by most of us. I am sure that Dominic Cummings and the wrecking tendency within government would not have recognised his intellectual heft. I can also say with reasonable confidence that, had he been alive, he too would have found Boris Johnson’s attempt to prorogue parliament unlawful and would have supported the earlier Gina Miller judgment that only a sovereign parliament, not the executive, can give notice to withdraw from the EU. He would almost certainly have been on the Cummings hit list.
Bingham’s faith in the rule of law as the central pillar of democracy was unshakeable: it is, he argued, perhaps the greatest unifying factor in a world divided by nationality, race, religion and wealth—“the nearest we are likely to approach to a universal secular religion.” This conviction shaped his career, and defined what became his legacy: defence of the vital need for an independent judiciary and the recognition that the rule of law is not a barren concept but one imbued with values, including respect for human rights.
Having had a largely commercial practice at the Bar, Bingham was an unexpected champion of modern human rights. Upon appointment as Master of Rolls in 1992, he declared that the incorporation of the ECHR into domestic law was the change he most wanted. To him it was not a particularly original idea, but it now became the source of great controversy. At the time, critics believed his advocacy for incorporation was inappropriate activism from a serving judge, whom they believed should serve as no more than a neutral arbitrator of technical legal issues. But Bingham rooted his argument in constitutional law. He reminded his critics that the convention, far from being “the ethereal brainchild of some continental professor,” was drafted by David Maxwell Fyffe, a Conservative Attorney General, at the instigation of Winston Churchill. After all, Bingham argued, “we had grown up on Magna Carta.”[su_pullquote]“I can say with reasonable confidence that Bingham would have found the prorogation unlawful”[/su_pullquote]
The eventual passing of the Human Rights Act of 1998 was a legal milestone. In his decisions as a judge, Bingham showed a profound understanding of the Act. By framing the HRA under the Rule of Law, he demonstrated that a great judge should not merely know the law but seek to understand the deeper spirit and tradition of values from which it springs. He believed the HRA flowed directly from Magna Carta and the Bill of Rights 1688-9 and sat comfortably with our common law history. A few years after the HRA came into force, Bingham oversaw the Belmarsh case (2004), which examined the legality of indefinite detention without trial of foreign nationals accused of terrorism-related offences under the post-9/11 2001 Anti-terrorism, Crime and Security Act. The court rejected the government’s argument that national security was a prerogative of the executive, beyond judicial oversight. He pointed out that the HRA “gives the courts a very specific, wholly democratic, mandate” to uphold human rights, and that “the function of independent judges… is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself.” The court declared the 2001 Act incompatible with the ECHR.
In A v Home Secretary (2005), Bingham held that evidence obtained or likely obtained by torture committed abroad by a foreign state’s agents is inadmissible in proceedings before UK courts. Citing the tradition of English law, Bingham reminded the government that the answer “is to be found not in a governmental policy, which may change, but in law,” and that “the English common law has regarded torture and its fruits with abhorrence for over 500 years.” The contextual importance of Bingham’s decisions in the early 2000s anti-terrorism cases demonstrated incredible political and legal foresight. His decisions to declare anti-terrorism policies incompatible with human rights came at a time when governments around the world were expanding the power of the executive and limiting parliamentary and judicial oversight in such matters. Terrorism can be used as justification for horrifying state abuse, as we are seeing now with Chinese persecution of Uighur Muslims, as well as in so-called “illiberal democracies.”
Ultimately, he found that while governments understandably exercise special powers when confronted with serious threats, it is the courts’ job to ensure they do not cross the line that divides lawful from unlawful. His decision was a great testimony to the constitutional tradition of the United Kingdom, proving that while “there are countries in the world where all judicial decisions find favour with the powers that be, they are not countries where one would wish to live.” He strongly believed that for democratic governments, “losing cases on occasion is part of the price to be paid for the rule of law.”
His commitment to the rule of law came as no surprise to those who knew him. He was lauded for unfailing courtesy inside and outside the courtroom and our current senior judges are largely cut from the same cloth. Yet the government is bent on constitutional vandalism. Whose power grows as a result? More Tom Binghams are needed, not fewer.
Correction: this article previously stated incorrectly that Bingham was the only person to have held all three most senior judicial offices in the UK