Lord Bingham - The Rule of Law
Summary
TLDRIn this insightful discussion, the speaker delves into the concept of the rule of law, emphasizing its significance as a constitutional principle. They outline eight key principles, including clear and accessible laws, equality before the law, and fair trials. The speaker passionately argues for the importance of human rights and international law, asserting their necessity for good governance and global peace. The debate touches on contentious issues like the Human Rights Act and the implications of international law on national sovereignty, providing a nuanced perspective on these complex topics.
Takeaways
- 📜 The rule of law is a fundamental constitutional principle that governs the UK, yet it is often vaguely defined and difficult to pin down.
- 🌍 The rule of law is recognized internationally and is included in dignified instruments such as the Universal Declaration of Human Rights.
- 📖 The Constitutional Reform Act of 2005 acknowledges the rule of law as an existing constitutional principle, but does not define it within the Act itself.
- 🤔 The speaker suggests that the rule of law encompasses eight principles, including clear and accessible laws, equality before the law, and fair trials.
- 📚 The law should be clear, accessible, and intelligible to all, which is often complicated by the vast amount of legislation and amendments.
- 🏛️ The principle of being governed by law rather than discretion is crucial to prevent arbitrary decisions by autocratic figures.
- 👥 Equality before the law is a key aspect, although historical and current inequalities persist, such as the treatment of non-nationals.
- 💼 The exercise of public power should be reasonable, fair, and for the purpose for which they are conferred, not a blank check.
- ⚖️ Dispute resolution should be through established legal avenues rather than private vengeance, although litigation can be expensive and slow.
- 🌎 Human rights and international law are integral to the rule of law, despite some critics arguing they impinge on parliamentary sovereignty.
- 🏦 The state should comply with its duties under international law, which is a critical aspect of global peace, order, and cooperation.
Q & A
What is the rule of law?
-The rule of law is a principle that all individuals and organizations within the state, whether public or private, are bound by and entitled to the benefit of laws that are publicly administered in the courts.
Why is it difficult to find a definition for the rule of law?
-It is difficult to find a definition for the rule of law because it is a complex and multifaceted concept that encompasses various principles, making it challenging to define succinctly.
What does the Constitutional Reform Act of 2005 say about the rule of law?
-The Constitutional Reform Act of 2005 states that nothing in the act shall detract from the existing constitutional principle of the rule of law, recognizing it as a fundamental principle of the UK's constitution.
What are the eight principles suggested by the speaker in relation to the rule of law?
-The eight principles suggested by the speaker are: 1) laws should be clear, accessible, and intelligible; 2) governed by law, not discretion; 3) equality before the law; 4) exercise of public powers should be reasonable, fair, and for the purpose conferred; 5) fairness in the criminal process; 6) availability of justice; 7) human rights; and 8) compliance with international law.
Why is the clarity of laws important?
-The clarity of laws is important because if people are bound by laws, they need to be able to understand and access them without undue difficulty.
How does the speaker view the problem of legislation becoming increasingly complex?
-The speaker views the increasing complexity of legislation as a problem because it makes it difficult for people to know what the law is, especially with constant amendments and the prolixity of judges.
What does the speaker mean by 'governed by law and not discretion'?
-The speaker means that people should not be subject to the arbitrary whims of autocrats, whether ministers, officials, or judges, but should be governed by established laws.
Why is equality before the law considered important?
-Equality before the law is important to ensure that all individuals are treated the same under the law, regardless of their status or background.
What is the significance of the Human Rights Act in the UK?
-The Human Rights Act is significant because it requires public authorities in the UK to act in a manner consistent with the rights set out in the European Convention on Human Rights, making it easier for individuals to assert their rights domestically rather than having to go to Strasbourg.
How does the speaker feel about torture and its relation to the rule of law?
-The speaker is strongly opposed to torture in any form and believes that the exercise of public authority should not result in someone being tortured, as it is completely unacceptable and repulsive.
What is the role of international law according to the speaker?
-According to the speaker, international law is crucial for governing the conduct of nations and maintaining peace and order in the world.
Outlines
📜 The Concept of Rule of Law
The speaker begins by discussing the familiarity of the term 'rule of law' and its frequent mention alongside concepts like freedom and democracy. Despite its common usage by politicians and judges, there is often a lack of clarity about its precise meaning. The Constitutional Reform Act of 2005 acknowledges the rule of law as a constitutional principle without defining it, underscoring its importance as a fundamental governing principle. The speaker proposes a definition that encompasses the idea that all individuals and organizations within the state are subject to and benefit from laws that are promulgated and administered publicly in courts. The speaker also introduces eight principles to further elaborate on the rule of law, starting with the law being clear, accessible, and intelligible.
📚 Clarity and Accessibility of Law
The speaker emphasizes the necessity for laws to be clear, accessible, and intelligible, given that everyone is bound by and entitled to the benefit of them. Despite the apparent straightforwardness of this principle, challenges arise due to the vast amount of legislation and amendments that make it difficult for citizens to understand the law. The speaker cites an example of a man who was subject to a compensation order that had been revoked seven years earlier, highlighting the complexity and obscurity of legal amendments.
🏛️ Law Over Discretion and Equality Before the Law
The speaker argues against governance by discretion, favoring the rule of law to prevent arbitrary decisions by autocrats. Using the story of John the Baptist's execution by Herod as an example, the speaker illustrates the contrast between rule by discretion and the rule of law. The principle of equality before the law is also discussed, noting historical inequalities and the ongoing challenges of ensuring equal treatment, especially for non-nationals.
💼 Exercise of Public Power and Dispute Resolution
The speaker discusses the proper exercise of public power, emphasizing that it should be reasonable, fair, and honest, and used for the purpose for which it was conferred. An example is given where the Terrorism Act was used inappropriately. The speaker also addresses dispute resolution, advocating for legal avenues over private vengeance, while acknowledging the high costs and delays associated with litigation.
🌍 Human Rights and International Law
The speaker argues for the inclusion of human rights within the rule of law, rejecting the notion that clear laws should be observed regardless of their content. The importance of international law is also highlighted, with the speaker asserting that nations should comply with international law as they do with national law. The debate over the authorization of the Iraq War is mentioned as an example of differing interpretations of international law.
🏛️ The Universality of Rule of Law Principles
The speaker contends that the principles of the rule of law are widely accepted globally and could be considered a form of universal secular religion. He suggests that adherence to these principles is essential for good governance and international peace and cooperation. The speaker also addresses potential criticisms regarding the expansion of the rule of law to include human rights and international law, defending the view that these components are integral to the concept.
🚫 The Rejection of Torture
The speaker passionately argues against torture, stating that public authority should not lead to torture. He contrasts the UK's historical stance against torture with practices on the Continent, emphasizing the UK's leadership in abolishing such cruel practices. The speaker also touches on the controversy surrounding the deportation of individuals to countries where they may face torture, defending the European Court of Human Rights' decision to prevent such actions.
Mindmap
Keywords
💡Rule of Law
💡Constitutional Reform Act
💡Clear and Accessible Law
💡Discretion
💡Equality Before the Law
💡Public Powers
💡Dispute Resolution
💡Human Rights
💡International Law
💡Fair Trial
💡Parliamentary Sovereignty
Highlights
The rule of law is a fundamental constitutional principle that has been recognized by statute.
The rule of law implies that all individuals and organizations within the state are bound by and entitled to the benefit of laws.
The law should be clear, accessible, and intelligible for everyone to understand.
The difficulty in knowing the law due to the vast amount of legislation and amendments.
The rule of law demands that we should be governed by law and not by the arbitrary discretion of individuals.
Equality before the law is a principle that has evolved over time and still faces challenges.
The exercise of public powers should be reasonable, fair, honest, and for the purpose they are conferred.
Dispute resolution should be through legal means rather than private vengeance.
The expense and delay in litigation make it difficult for many to access the courts.
Human rights are integral to the rule of law and should not be disregarded.
The state should provide a fair trial in both criminal and civil cases.
The state should comply with its duties in international law as well as national law.
The rule of law is widely accepted among nations and could be considered a universal secular religion.
Observance of the rule of law principles is crucial for good governance and international cooperation.
Parliamentary sovereignty is supported, but Parliament has also passed laws like the Human Rights Act.
The Human Rights Act was implemented to allow rights to be asserted in UK courts rather than Strasbourg.
International law is crucial for governing the conduct of nations and maintaining global peace.
The prohibition of torture is a fundamental aspect of the rule of law and international law.
The UK has a strong historical stance against torture, which is reflected in its laws and international commitments.
Transcripts
good afternoon ladies and gentlemen and
thank you all very much indeed for um
turning up uh the rule of law is an
expression uh that I think most of us uh
have been familiar with as an expression
uh for very very uh many years we've
heard politicians including it among a
list of desirable things uh usually
along with freedom and democracy and
things of that kind we've heard judges
using it uh they tend to say Parliament
couldn't possibly have intended uh to
enact this because that would violate
the rule of law uh and we've heard the
expression used in very uh um dignified
International instruments uh like the
preamble to the universal Declaration of
Human Rights right and the European
Convention of Human Rights and the
Treaty of European Union uh but on none
of these
occasions on the whole has anybody ever
paused having invoked the rule of law to
say what they actually mean by it uh and
then n in
2005 section 111 constitutional Reform
Act of that year by Amendment enacted
nothing in this act shall detract from
the existing constitutional principle of
the rule of law well now uh from that uh
we uh derive that there is an existing
constitutional
principle uh and that the ACT doesn't
detract uh from it uh but anybody who
looks through uh the back of the act or
indeed elsewhere uh to find a definition
doesn't find
one uh and I my own view is very wise
not to try and give one because of the
difficulty um of it but I mean this now
is recognized by Statute as a principle
of our Constitution that is of the most
basic rules that govern uh this uh
country uh and that of course means that
a time is bound to come and has indeed
already come when people in invoke it
and they say we're relying on this
constitutional principle uh and so uh
sort of vague obfuscation as to what it
actually means uh it cannot be pursued
now I've attempted um first of all in a
a sentence uh to sum up in I'm afraid a
rather legalistic way uh what the Crux
of this is uh and I think it is really
this uh that all individuals and
organizations within the state whether
public or private are bound by and
entitled to the benefit of quite
important that laws perspectively
promulgated uh and publicly administered
in the courts uh now that's quite a
mouthful and what uh this little book
really consists of is trying to spill
out in in a little bit more detail and
indeed in a way that um is intended to
be extremely accessible to anybody
whether they're a lawyer or not is what
this actually means and so I've
suggested eight principles the first of
these you may say well goodness me what
could be more obvious than that um is
that the law should so far as possible
be clear accessible uh and
intelligible if we're all bound to obey
the law uh and if we're entitled to the
benefit of it we do need without undue
difficulty uh to be able to find what
the law is
you may say well surely there's no
problem about that well there is a
problem uh with governments churning out
thousands of pages of legislation every
year and those thousands of pages of
legislation being uh
supplemented uh by um uh thousands more
pages of of ministerial orders made
under statute it is extremely difficult
to know what the law is not least
because Provisions are amended and then
the amendment is amended and then the
amendment to the amendment is amended
and there's a case which I account in
the book uh where a man uh was the
subject of a compensation order for
£66,000 and it was only at a very late
stage and by
chance that it emerge that the order
under which uh this order had been made
had been revoked seven years earlier and
nobody could have found it out how ever
pointing uh a finger of accusation at
Parliament isn't good enough because the
judges themselves are given to extreme
prolixity and length and complication
and they do not do in my opinion what
they might do uh to make the law uh as
simple and straightforward as they might
uh and this is true at the highest level
where you get five people all giving
their own take on something that's point
one point two is that by and large uh we
should be governed by law and not
discretion we don't want by and large to
be subject to the arbitrary whim of some
autocrat uh whether he be a minister or
an official or a judge and it occurred
to me this morning uh that you couldn't
really get a much better example than
that uh than the execution of John the
Baptist by Herod why did he do it
because of something terrible that John
the Baptist had done no uh because he
promised his daughter uh that in return
for her wonderful dancing uh he would
give her anything she wanted um and
anything more utterly contradicts the
rule of law than that it would be quite
hard to imagine uh the third thing I um
elaborate a little is equality before
the law and again you'll say well that's
quite obvious uh surely we're all equal
before the law well um slave weren't
equal uh a number of uh religious
Believers were not equal until
relatively uh
recently uh women were not equal um
until uh recently and there is a
tendency not just in this country but
elsewhere uh to treat
non-nationals unequally uh not simply in
an immigration context uh but for other
purposes as well fourth point I make uh
is that the exercise of public Powers
I.E Powers publicly conferred by Statute
uh should be exercised by those on whom
they're conferred reasonably fairly
honestly and importantly for the
purpose for which they are conferred I
mean many of you will recall the example
when the terrorism act the terrorism Act
was invoked uh to um exclude include a
man who told the Home Secretary at the
labor Party Conference that he was
talking
rubbish uh it was the foreign secretary
not not not the home SEC um so we it's a
very important principle we elect
members of parliament we give them
authority to make laws they make laws
the laws bind us but we don't give it
the people who are given Powers by those
laws a blank check we give them power to
do what the statute says they can or
must do sixth Point dispute
resolution uh we live in a society where
private
vengeance is discounted if you are owed
a lot of money by somebody uh you don't
um hire a lot of Heavies to go and
threaten the man uh until he pays you as
used to happen in um Russia after um GL
noon um so
but there is a corollary of this I mean
if in The Last Resort I'm not advocating
resort to litigation litigation does not
on the whole lead to
happiness uh I'm not certainly
discounting arbitration mediation
conciliation and other words of
resolving cases out of court they're
entirely beneficial but in the last
resort uh if we have rights to assert or
or to defend we ought to be able to go
to a Court established by the law of the
land in order to get an answer assuming
uh that it isn't a frivolous or stupid
or utterly uh hopeless uh
contention that you may say again is
completely obvious
but we all I think know uh that the
expense of
litigation uh is such uh as to make it
very very difficult and a formidable
undertaking uh for anybody except the
very rich or the legally aided a
diminishing group uh to go to court uh
for almost any purpose this isn't a new
problem uh in uh the
1650s uh someone said you know the law
is beyond remedy it costs 10 to recover
five well it's a problem that uh some
centuries later is still with us as is
the problem of delay uh it's not as bad
as Italy for example uh but it does take
much too long uh for cases uh to reach
Court uh I should have mentioned human
rights there are those who say human
rights have have nothing to do with it
if the law is absolutely clear the law
should be observed and it doesn't matter
how appalling uh the things are that the
law Pro describes well I um passionately
disagree with that view and no doubt
Charmy disagrees with it even more
passionately um and it may be we will uh
talk about it uh but my own contention
is that while human rights are not
Universal nobody is going to say that
women have equal rights in uh Saudi
Arabia uh to Western European uh
countries but within any given Society
I think there is a high degree of
consensus as to what the most uh
important uh rights
are uh my uh next principle is that the
state should provide a fair
trial again completely obvious and you
may say well of course criminal trial
should be fair Civil Trial should be
fair uh I also address what I call
hybrid or sort of mix trials which are
not criminal uh and are not strictly
civil either but for example it's a case
uh where a prisoner is seeking uh
release on parole and there's a hearing
before the parole board or uh let us say
somebody is the subject of an
application for a control order by the
Home
Secretary now these are
situations in which there have
been uh and are on the statute book
departures uh from what has hitherto
been regarded as almost the most
fundamental ingredient of a fair trial
which is the requirement uh that a
person who's the subject of an adverse
order like being refused parole or being
made the subject of a control order
should know what the case is against
him uh and have a complete opport
to argue it in a forum where the judge
or decision maker uh has received no
material which he has
not now that's been departed from uh
because grounds of National Security uh
provision has been made that there are
situations uh in which the decision
maker can be given material which is not
shown to the defendant if we call him
that not shown to his
lawyers uh but uh shown to a special
Advocate uh who has shown the material
uh but cannot
communicate with the defendant after
he's seen it and so he can't take
instructions and say well um what do I
ask this witness do you know him is he a
reliable man what we dealings with him
so you can't do any of that uh and and
uh the last uh of my eight uh principles
uh is uh that uh the state State Should
comply with its duties in international
law as it should with its duties in
National Law now international law
covers um very significant areas of uh
uh International life the law of the Sea
The Law of the air the law of outer
space law of Antarctica etc etc and
things uh closer to uh home uh the
ministerial code which binds all
ministers in this country uh says that
they should comply uh with International
as well as national law uh and of course
uh international law
governs the use of
force and as s Michael Wood uh without
at that stage betraying any view at all
it was after he'd retired uh he said
about the war of Iraq in Iraq uh it
really raises no significant question of
principle
it either was authorized or it wasn't by
the security Council of the United
Nations so that is the Crux uh of of of
of this debate the the government and
its immediate advisers uh said yes it
was
authorized uh a large body of opinion um
including my own uh says it was uh not
authorized so um in conclusion
at this stage uh we live in a world
which is Riven by differences of race
religion nationality wealth Etc uh
Etc uh and there are hosts of problems
that no set of legal principles uh is
ever going to uh
overcome but the principles that I've
been talking about comprised under the
general heading of the rule of law are
very very widely accepted among the
nations of the world uh I've suggested
and I suggest again that it's the
nearest where likely to come to a
universal secular
religion uh and I've also suggested and
suggested again uh that observance of
these uh principles is the best recipe
that the world has yet devised uh not
only for good government at
home uh but also for peace order and
cooperation among the nations of the
world thank you very very much
indeed well thanks Tom for that very piy
tutorial
I've got my eight points down and intend
to use them um looking at your eight
points um it seems to me that probably
the most
contentious would be um the human rights
component for some for some critics of
your of your theory um and possibly the
international law component I think that
um just just preempting what some um
critics might say they might say that
that's where you're pushing at the
boundaries are you not of of of what we
tradition Ally would would think of as
the rule of law that might more
minimalistically just be well equality
before the law um and and maybe Fair
trials independent judges and so on but
but in both the human rights principle
that you've introduced and the
international law principle you're
looking at the content of the law rather
than just having a process and and
having equality of access to to that
process what do what would you say to
for example those who currently want to
scrap the Human Rights Act or or um
dilute it in some way on the on the
basis that it somehow impacts upon
parliamentary sovereignty which you've
also spoken in favor of I think many
times yes I am um an unashamed um
supporter of the principle of
parliamentary sovereignty which means of
course that Parliament Sav in
matters uh in which it's lent its
authority to somebody else uh is so and
as Professor bogor has said what the
queen enact in Parliament enacts is law
well so it is but so far as the Human
Rights Act is concerned Parliament has
passed an act of parliament uh that says
public authorities in the United Kingdom
including courts shall act in a manner
consistently with the rights set out in
the schedule to the ACT which are the
main rights in the convention
and there's no option it doesn't say it
may apply these things or it can if it
likes to or needn't whatever it it says
it
must now um Parliament could revoke that
uh the effect of revocation would be
extremely uh
limited because we're still Bound by the
convention we signed it in 1951 we
drafted it we were the first country to
sign it and the first country to ratify
it so we've been bound by it since 19 51
and all we did in
1998 was to say instead of having to
wait for years and spent a lot of money
going to Strasburg to try and assert
your rights there without the benefit
for the European judges of any judgment
in this country uh you can assert your
rights here and the courts must give
effect to
them uh the the result of that partly uh
has been um that our record in Strasburg
while not Immaculate has been much
better we had uh had about 150 cases in
which the United Kingdom was held to
have violated the convention and
although I don't know how many there
have been since our courts were applying
the act it it would only be a handful
and to those who say these are spurious
rights and why are they so important uh
I would say and I'm afraid sh's heard
say this before well which of these
rights exactly would you wish to do
without would you not wish to protect
the right to life would you not wish to
prohibit torture and cruel and inhuman
treatment or punishment would you not
want uh to eliminate uh slavery would
you not want to give a potent guarantee
of personal Liberty would you not want
to give people a fair trial and uh so on
there is I suggest nothing here that any
of us would gladly forego although of
course it is true that the further you
get from the very very Central core of
some of these rights the more
disputatious they may become uh turning
to shami's Second point I mean it is
very important to understand that
international law is
law it's not national law uh but it is
the law which the Nations themselves
have made made and nothing could be
clearer than the fact that with two
world wars behind them the nations of
the world 1945 resolved to adopt the
United Nations
Charter which prohibits the use of
force except in
self-defense or with the authority of
the security Council given under chapter
7 after all other means of resolving
problems have been resolved
now there is one gray area as to whether
the use of force is legitimate uh to
prevent an imminent humanitarian
catastrophe that isn't spelled out in
the charter there's school of thought
that supports it uh there are other
nations that don't support it I think
the United Nations those states does not
support uh that but we're not in a
recent context certainly not in an Iraqi
context involved with that
nobody suggested there was an imminent
humanitarian catastrophe in Iraq and
nobody suggested that we were entitled
to invade in
self-defense so it is as I said earlier
a question of
authority uh uh but I I do think the
importance of international law as a
means of uh governing the conduct of
Nations is hugely important
uh and as I think I've said in what was
intended to be a witty aphorism uh the
law of the Jungle is no more acceptable
simply because it's a big
jungle well just to push you just a
little step further Tom you see I I I
suspect well I I noticed all the nods of
approval in this room but to go back to
your rhetorical question on human rights
which of the which of these rights would
you like to discard torture protection
from torture Free Speech Fair trial I'm
thinking of some former home secretaries
on both sides of the aisle actually that
I've had the pleasure of discussing
these matters with and what they would
probably say if pushed in response to
your question which of these rights
would you like to discuss they would say
none for for our
citizens and people like us the problem
let's face it the the woly mammoth in
this great room is what we really want
to do is to deport foreign Nationals to
places of torture and that's the link
with the international law argument as
well it's about how big the jungle is
and or how big the the society in which
you say we have a legal system is and
who gets
protected well as shami points out
absolutely correctly as you would expect
um
the decision of the European court of
justice given uh before the human rights
act so it's not in any way a product of
that is a decision which lawyers know as
chahal against the United Kingdom chahal
was a seek
terrorist we wanted to support Deport
him to
India uh he said that if he was deported
to India he was a grave risk of
torture and uh severe Mal treatment and
that was accepted as a real risk in his
case and the European Court of Human
Rights said you may not Deport anyone to
a country where they
are serious risk of being tortured now
that is a decision that has been hugely
unpopular with the government they went
to sturg again in another case to try
and upset it and the European Court of
Human Rights stuck to its guns and refus
to budge now you can take two views you
could say well um send him to India and
let him get on with it or you could say
as they
have torture is something so
repulsive uh and so completely
unacceptable uh that one simply cannot
uh countenance and exercise of Public
Authority which may result in somebody
being torture now there's room for two
views I support the European court on it
but it is uh I think think without doubt
the most unpopular decision that the
European Court of human rights has given
from the point of view of the
governmental authorities in this country
but surely if it's and surely if it's
okay to deport someone to a place of
torture you can't then jump up and down
about rendition it's really we're really
dancing on the head of the pin are we
not if we say that we can Deport someone
to a place of torture but but if we do
it sort of rather deliberately and
specifically and get some very vital
intelligence back that's an
Abomination I I think um that we in this
country have every reason to be
extremely proud of our record in
relation to torture uh as those of us
who read the sort of history books I did
as a child will remember it used to be
in medieval times the practice uh to
make somebody hold a boiling molten lead
in their hand and if it went septic then
they were guilty they were duly
slaughtered and if it didn't go septic
they probably lost the use of their hand
but they were regarded as innocent uh
and in 1215 that was declared to be a
cruel and unacceptable procedure uh by
the leran council that year and there
was a choice for the Nations of Europe
to make as to what they were going to do
uh we said we would stick to our jury we
would allow people to give evidence um
and we would uh entrust uh guilt or
innocence to the decision of a jury and
one witness uh for the the prosecution
was enough the countries of Continental
Europe adopted a different uh rule uh
which was uh that um you should either
have two witnesses to the crime or a
confession well now there lots of crimes
you don't get two
witnesses uh and so they needed a
confession and how better to get a
confession than to torture somebody
until they confessed uh and this was an
accepted practice in the countries of
Contin Europe until an amazingly late
date and there was 18th century
textbooks of very elegant young men owed
wi and hes and Silk Stockings putting
people to the rack and and thumb screw
and this uh sort of thing uh so we led
the way in uh setting our face Against
torture now almost every country in the
world is a party to the torture
convention which is very swinging and
very uncompromising in its turn
uh so um as I say
I'm a total opponent of torture in any
shape or form and I don't think we
should lend it uh any countenance
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