A rule of law unto itself

Lord Bingham recently gave an elegant and scholarly speech on the rule of law (hat tip to Martin Kettle). I wouldn’t normally pick a legal argument with a senior law lord, but the lecture was on a broad matter of principle, and arguably more political than legal. Bingham addressed the subject of the rule of law because the principle has recently been enshrined in statute:

“The Constitutional Reform Act 2005 provides… that the Act does not adversely affect ‘the existing constitutional principle of the rule of law’ or ‘the Lord Chancellor's existing constitutional role in relation to that principle’. This provision… is further reflected in the oath to be taken by Lord Chancellors… to respect the rule of law and defend the independence of the judiciary. But the Act does not define the existing constitutional principle of the rule of law, or the Lord Chancellor's existing constitutional role in relation to it.”

So we have a statutory commitment to a principle that is undefined. Tricky. Perhaps, though, this is just idle rhetoric of no concern – the phrase ‘rule of law’ is often used as vague shorthand for whatever the speaker values within a political system. But Bingham thinks not: “the statutory affirmation of the rule of law as an existing constitutional principle” means that “judges… are not free to dismiss the rule of law as meaningless verbiage, the jurisprudential equivalent of motherhood and apple pie, even if they were inclined to do so. They would be bound to construe a statute so that it did not infringe an existing constitutional principle, if it were reasonably possible to do so.”

So he thinks it worth attempting to define the rule of law: “all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts.” There would doubtless have to be certain exemptions and qualifications – “But it seems to me that any derogation calls for close consideration and clear justification.”

Hear, hear. Bingham fleshes this out a little by giving eight sub-rules that he thinks the principle entails:

“[1] the law must be accessible and so far as possible intelligible, clear and predictable … [2] questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion … [3] the laws of the land should apply equally to all, save to the extent that objective differences justify differentiation … [4] the law must afford adequate protection of fundamental human rights … [5] means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve … [6] ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers … [7] adjudicative procedures provided by the state should be fair … [8] compliance by the state with its obligations in international law”.

I’d tend to agree that these are good rules (with a fair few caveats, especially on the last one). But I’m not sure these eight suffice for the rule of law as initially defined, nor that all eight are aspects of the rule of law as such. To his credit, Bingham acknowledges in particular that there is controversy over point (4): protection of fundamental rights.

To be sure, we can all agree that this is a very good thing. But imagine a situation in which laws are harsh, punishments are brutal, freedoms are denied – and yet the state system that maintains these conditions could well function most effectively and in full accordance with its own (unjust) laws. Rule of law, but terrible human rights abuses?

Bingham appreciates the hypothesis, but rejects the conclusion:

“A state which savagely repressed or persecuted sections of its people could not in my view be regarded as observing the rule of law, even if the transport of the persecuted minority to the concentration camp or the compulsory exposure of female children on the mountainside were the subject of detailed laws duly enacted and scrupulously observed. So to hold would, I think, be to strip the existing constitutional principle [of the rule of law]… of much of its virtue”.

I think this is quite wrong. The flaw in his reasoning is to believe that if such systemic repression were compatible with the rule of law, then the rule of law would be a poor principle indeed (and, as it is a fine principle, it must therefore entail protecting fundamental rights). This mistakenly assumes that the rule of law is the only principle needed for a just society. It is not.

There is a real, huge difference between a state in which a repressive legal system operates smoothly (and cruelly), and one in which such a system can often be thwarted by bribery or its own maladministration. Likewise between a liberal democracy with open and just laws that are impartially enforced with rigorous checks and balances, and one in which the high principles of the statute book are often secretly mistranslated into nepotistic judgments by the courts. Both of these comparisons represent strong vs weak rule of law; and the difference between the first pair and the second is at a political level distinct from this principle. To think that the rule of law is everything good is to put all your ideological eggs in one basket.

Or take Iraq: while its government and constitution today are vastly superior in terms of respect for human rights than four years ago, its ability to enforce its will is far inferior. The laws may be better but the rule is tragically lacking.

(And this highlights another aspect of the rule of law that Bingham doesn’t mention: the relevant authorities must actually have the practical ability to enforce laws. This is, admittedly, not a legal aspect and so he might be excused for not discussing it, but surely the phrase ‘the rule of law’ is very strongly suggestive of the fact that the debate has been expanded from the law itself to encompass factors surrounding it that enable it to have force.)

Is this hair-splitting? I do, after all, agree that human rights are essential, whether or not we strictly class them as part of some other principle; indeed, we have other legislation such as the Human Rights Act to protect them, so perhaps it doesn’t really matter whether we interpret them as part of ‘the rule of law’ under this Constitutional Reform Act as well.

But the fact that there is such a point of (apparently technical) legitimate contention serves to illustrate a deeper problem with Bingham’s argument.

Explaining his sub-rule (1), he argues that clear and predictable law precludes “excessive innovation and adventurism by the judges. It is one thing to alter the law's direction of travel by a few degrees, quite another to set it off in a different direction. The one is probably foreseeable and predictable, something a prudent person would allow for, the other not.” And regarding (2), against individual discretion: “The broader and more loosely-textured a discretion is, whether conferred on an official or a judge, the greater the scope for subjectivity and hence for arbitrariness, which is the antithesis of the rule of law. …a discretion should ordinarily be narrowly defined and its exercise capable of reasoned justification.”

I find these points to be utterly right – and utterly integral to the rule of law. Judges and other officials cannot alter or disregard laws as they wish – unless the law itself defines room for judicial manoeuvre under certain circumstances where it can be justified. There must be scope for interpretation, but not to the extent that the nature of a constitutional principle becomes a matter of a judge’s subjective opinion. The rule of law places structural reliability over individual discretion and adventurism.

And this is where the paradox unfolds. If Bingham is right here (and I’m certain that any concept of the rule of law implying otherwise would be a travesty), then our judges cannot go around pronouncing their own views of terms that appear in Acts of Parliament in order that these views should acquire legal force. Fine in a lecture, perhaps, but not in a ruling.

If the meaning of a term cannot be determined at all by reference to the statute book, then clauses that invoke it cannot be applied without the judiciary’s violating this principle, and creating a legal requirement where before there was only clumsy hand-waving. Any plausible judicial fleshing-out of ‘the rule of law’ in this context would thus be an activity that proscribed itself – and in manifesting subjective adventurism in this way, it could set a precedent for future judges, who may not be so decent in their opinions as Bingham.

This undefined phrase that has found its way into law is but a sadly misplaced soundbite; any attempt to give it real teeth would be deeply troublesome. Best to leave it – noble but vapid – to gather dust as part of Tony Blair’s legacy.