The Rule of Law

"Be you never so high, the Law is above you," Lord Denning would proclaim enthusiastically, often while interpreting "the Law" in idiosyncratic ways that its makers never intended. It fell to Tom Bingham, as the senior law lord, to lead the British judiciary through the post-Denning legal landscape, grafting the new principles of the Human Rights Act on to the undisciplined branches of common law and on dense thickets of statutes and regulations. His enforced retirement last year at the age of 72 and at the height of his powers has been a loss to the development of the law but may, as this short book presages, be a boon to its understanding.

At one level, The Rule of Law fills a huge gap in student texts - it will serve as an exemplary primer for A-level and university courses on politics and government. There is no other account so clear and authoritative on the contemporary role of the judiciary in our unwritten constitutional settlement, which now has a significance of which A V Dicey would never have dreamt. And for all his diffidence, Bingham has a sure grasp of constitutional history, identifying the Petition of Right (1628) as "the moment when the rule of law may be said to have come of age", and remarking upon the prescience of the Instrument of Government (1653, drafted by Lambert, mind, not Cromwell).

The next achievement of this book is the coolness of its tone. The Dicey-Denning view of our constitutional law, which still influences much legal scholarship, was triumphalist and complacent. Bingham is cautious, balanced, and unable to conceal his anxieties - especially at the unconscionable costs of going to court and the way in which "the length, elaboration and prolixity of some common law judgments" have made the rule of law inaccessible and unpredictable. He agonises in particular over the unfair development of "special advocates" - security-vetted counsel who cannot speak with their "clients", but who must purport to represent them in an increasing range of criminal or "terrorism"-related cases.

There is an excellent chapter on human rights which explains how the introduction of the European Convention has in many respects enhanced the necessary protection of individuals, although Bingham notes the difficulty at this point of claims for personal autonomy - a difficulty that neither European nor British judges have yet managed to solve. And he explains, as if to a small child or to a cabinet minister, why judicial independence means that judges must not discuss their cases over tea with the home secretary: "Obvious though it is, recent experience suggests that this is not a point which all ministers understand."

For all its value as an exposition for students, The Rule of Law takes off in its later chapters with its treatment of Guantanamo Bay and the politically panicked laws that have emerged from the misdescribed "war on terror". In the wake of Peter Goldsmith and Tony Blair fronting up to the Chilcot inquiry, it is a pity that no newspaper has bid for the serialisation rights to this section of the book, in which he demonstrates the illegality of invading Iraq.

This raises the tantalising prospect that next time, the courts might injunct a government from going to war. Iraq was undoubtedly a breach of the rule of international law, although it is fair to say that because international law cannot yet define the crime of aggression and only Britain, alone of the "big five" Security Council powers, is prepared to accept the jurisdiction of the world court, it is overoptimistic to think that international law actually "rules". Until it does, the verdict of the Chilcot inquiry is likely to be of the kind Talleyrand is often said to have passed on Napoleon's invasion of Russia: "It is more than a crime; it is a blunder."

Bingham ultimately accepts, despite the views of some more activist colleagues, that under the present rule of law, parliament can do anything. For all his unease about unfair trials and the government's willingness to co-operate with states that torture, he accepts that the House of Commons is sovereign. This is not the position that Bingham favours, but providing judges with the power to protect the people from their MPs by way of entrenching their rights in a written constitution is a change that should come, he argues, "only if the British people, properly informed, choose to make it". It is to be hoped that his next book will provide this "proper information".

Geoffrey Robertson, QC is the author of “The Justice Game" (Vintage, £9.99) and "Crimes Against Humanity: the Struggle for Global Justice" (Penguin, £17.99)

The Rule of Law
Tom Bingham
Allen Lane, 224pp, £20

This article first appeared in the 08 February 2010 issue of the New Statesman, Nightmare on Cameron Street