Lord Bingham - The Rule of Law

good afternoon ladies and gentlemen and thank you all very much indeed for turning up the rule of law is an expression that I think most of us have been familiar with as an expression for very very many years we've heard politicians including it among a list of desirable things usually along with freedom and democracy and things of that kind we've heard judges using it and they tend to say Parliament couldn't possibly have intended to enact this because that would violate the rule of law and we've heard the expression used in very dignified international instruments like the preamble to the Universal Declaration of Human Rights and the European Convention of Human Rights and the treaty of European Union there are no these occasions on the whole has anybody ever paused having invoked the rule of law to say what they actually mean by it and then 9 2005 section 1 1 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 from that we derive that there is an existing constitutional principle and that the Act doesn't detract from it but anybody who looks through the back of the Act or indeed elsewhere to find a definition doesn't find one and I my own view is with very wise not to try and give one because of the difficulty 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 this country and that of course means that the time is bound to come and has indeed already come when people in court invoke it and they say we're relying on this constitutional principle and so sort of vague obfuscation as to what it actually means account B pursuit now I've attempted first of all in a sentence to sum up and I'm afraid a rather legalistic way what the crux of this is and I think it is really this 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 prospectively promulgated and publicly administered in the courts now that's quite a mouthful and what this little book really consists of is trying to spell out in a little bit more detail and indeed in a way that is intended to be extremely accessible to anybody whether they're a lawyer or more is what this actually means and so I've suggested eight principles now the first of these you may say well goodness me what could be more obvious than that is that the law should so far as possible be clear accessible and intelligible if we're all bond would obey the law and if we're entitled the benefit of it we do need without undue difficulty to be able to find what the law is anyway so surely there's no problem about that well there is a problem with governments churning out thousands of pages of legislation every year and those thousands of pages of legislation being supplemented by thousands more pages 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 as amended and there's a case which I account in the book where a man was the subject of a compensation order of sixty six thousand pounds and it was only at a very late stage and by chance they did emerge that the order under which this order had been made had been revoked seven years earlier and nobody could have found it out however pointing a finger of accusation Parliament isn't good enough because the judges themselves are given two extreme prolixity and length and complication and they do not do in my opinion what they might do to make the law as simple and straightforward as they might 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 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 whether he be a minister or an official or a judge and it occurred to me this morning that you couldn't really get a much better example than that than the execution of John the Baptist by Herod why did he do it because of something terrible the John the Baptist had done no because he promised his daughter that in return for her wonderful dancing he would give her anything she wanted and anything more utterly contrary to the rule of the autumn that it would be quite hard to imagine the third thing I elaborated her little is equality before the law and again you'll say well that's quite obvious surely we're all equal before the law well slaves weren't equal a number of religious believers were not equal until relatively recently women were not equal until recently and there is a tendency not just in this country but it'll square to treat non-nationals unequally not simply in an immigration context about for other purposes as well fourth point I make is that the exercise of public powers ie powers publicly conferred by statute 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 to exclude a man who told the Home Secretary at the Labor Party conference that he was talking rubbish everybody there was the Foreign Secretary or not not not the home team said we it's a very important principle we elect members of parliament we give them all thority 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 almost do Sixpoint dispute resolution we live in a society where private vengeance is discounted if you are owed a lot of money by somebody you don't hire a lot of heavy is to go and threaten the man until he pays you is used to happen in Russia after Klaus Norton so but there is a corollary of this if in the last resort I'm not advocating resort to litigation litigation does not on the whole lead to happiness I'm not certainly discounting arbitration mediation conciliation in other words of resolving cases out of court they're entirely beneficial but in the last resort if we have rights to assert 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 that it isn't a frivolous or stupid or utterly hopeless contention that you may say again is completely obvious but we all I think know that the expensive litigation is such as to make it very very difficult and a formidable undertaking for anybody except the very rich or the legally aided a diminishing group to go to court for almost any purpose this isn't a new problem in the 1650s someone said you know the law is beyond remedy it costs 10 pounds to recover 5 well it's a problem that some centuries later is still with us as is the problem of delay it's not as bad as Italy for example but it does take much too long for cases to reach court I should have mentioned human rights there are those who say human rights have nothing to do with it if the law was absolutely clear the law should be observed and it doesn't matter how appalling the things are that the law prescribes well I passionately disagree with that view and they die charlie disagrees with this even more passionately and it may be we will talk about it but my own contention is that while human rights are not universal nobody is going to say women have equal rights in Saudi Arabia to Western European countries but within any given society I think there is a high degree of consensus as to what the most important rights are my next principle is that the state should provide a fair trial again completely obvious and you may say well of course a criminal trial should be fair civil trial should refer I also address what I call hybrid or so the mixed trials which are not criminal and are not strictly civil either but for example it's a case where a prisoner is seeking release on parole and there's a hearing pool before the parole board or 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 and are on the statute book departures from what has hitherto been regarded as almost the most fundamental ingredient of a fair trial which is the requirement 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 and have a complete opportunity to argue it in a forum where the judge or decision-maker has received no material which he has known now that's been departed from because the grounds of national security provision has been made that there are situations in which the decision-maker can be given material which is not shown to the defendant if we call in that not shown to his lawyers but showing to a special advocate who is shown the material but cannot communicate with the defendant after he seal it and so he can't take instructions and say well what do I ask this witness do you know him is he a reliable man what we were dealings with so he can't do any of that and the last of my eight principles is that the state should comply with its duties in international law as it should with its duties in national law now international law covers significant areas of international life the law of the sea the lord of the air the laurel art of spate nor of Antarctica etc etc and things closer to home the ministerial code which binds all ministers in this country says that they should comply with international as well as national law and of course the international rule governs the use of force and as Sir Michael would without at that stage betraying any view at all was after he'd retired he said about the Wars of rock in Iraq 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 of this debate the the government and its immediate advisors said Jessup was authorized large body of opinion including my own says it was not authorized so in conclusion at this stage we live in a world which is riven by differences of race religion nationality wealth etc etc and there are hosts of problems that no set of legal principles is ever going to overcome but the principles that I've been talking about comprised under the general heading of the rule of law are very widely accepted among the nations the world I've suggested and I suggest again that it's the nearest were likely to come to a universal secular religion and I've also suggested and suggested again that observance of these principles is the best recipe that the world has yet devised not only for good government at home but also for peace order and cooperation among the nations of the world thank you very very much indeed well thanks to Tom for that very pithy tutorial I've got my eight points now I'm intend to use them looking at your eight points it seems to me that probably the most contentious would be the human rights component for something for some critics of your of your theory and possibly the international law component I think that I'm just just pre-empting what some critics might say they might say that that's where you're pushing at the boundaries are you not of what we traditionally would would think of as the rule of law that might more minimalistic ly just be well equality before the law and may be 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 having equality of access to that process but what would you say to for example those who currently want to scrap the Human Rights Act or or dilute it in some way on the basis that it's somehow impacts upon parliamentary sovereignty which you've also spoken in favor of I think many times yes but I am an an unashamed supporter of the principle of parliamentary sovereignty which means of course that Parliament save in matters in which it's lent its authority to somebody else is sovereign and as Professor Bogdan or 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 God 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 of 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 says it must now Parliament could revoke that the effect of revocation would be extremely 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 barn bite since 1950 while and all we did in 1998 was to say instead of having to wait for years and spend a lot of money going to Strasbourg to try and assert your rights there without the benefit for the European judges of any judgment in this country you can assert your rights here and the courts must give effect them the result of that partly has been that our record in Strasbourg while not immaculate has been much better we had had about 150 cases in which the United Kingdom was held to have violated the Convention and although I don't know how many have been since our courts were applying the Act it would only be a handful and to those who say these are spurious rights and why are they so important I would say an unfair charmese heard me say this before but which of these rights exactly would you wish to do without well do not wish to protect the right to life we do not wish to prohibit torture and cruel and inhuman treatment or punishment would you not want to eliminate slavery would you not want to give a potent guarantee of personal liberty would you not want to give people a fair trial and so on there 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 call of some of these rights the more disputatious they may become returning to Charlie's second point I mean it is very important to understand that international law is law it's not national law but it is the law which the nations themselves have made and nothing could be clearer than the fact that with two world walls 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 all 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 grey area as to whether the use of force is legitimate to prevent an imminent humanitarian catastrophe that isn't spelled out in the Charter other school of thought that supports it there are other nations that don't support it I think the United Nations other states does not support that but we're not in a recent context certainly not in a new rocky context involved for 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 but I I do think the importance of international law as a means of governing the conduct of Nations is hugely important and as I think I've said in what was intended to be a witty aphorism 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 suspect well I I noticed all the odds of approval in this room that to go back to your rhetorical question on human rights which of the which of these rights would you like to discuss torture protection from torture free speech feta I'm thinking of some former home secretaries on both sides of the aisle actually the I've had the pleasure of discussing these masters 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 that's basically the the wooly 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 Shami who points out absolutely correctly as you did affect the decision of the European Court of Justice given before the Human Rights Act so it's not in any way a product that is a decision which lawyers now as chahal against the United Kingdom Johar was seek terrorists we wanted to support deport him to India he said that if he was deported to India he was at grave risk of torture and severe now 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 a serious risk of being tortured now that is a decision that has been hugely on pop with the government they went to Strasbourg again in another case to try and upset it and the European Court of Human Rights stuck to its guns and refused to budge now you even take two views you could say well send him to India and let him get on with it or you could say as they have torture is something so repulsive and so completely unacceptable that one simply cannot countenance and exercise a public authority which may result in somebody being tortured now this one for two views I support the European Court on it but it is I 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 a I'm sure 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 we know 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 think that we in this country have every reason to be extremely proud of our record in relation to torture as those of us who read the sort of history books I did as a child but remember it used to be in medieval times the practice to make somebody hold of boiling a molten lead in the hand and if it went septic then they were built it they were duly sorted and if it didn't go septic they probably lost the use of their hand but they were regarded as innocent and in 1215 that was declared to be a cruel an unacceptable procedure by the Lateran Council that year and there was a choice for the nations of Europe to make as to what they were going to do we said we would stick to our jury we would allow people to give evidence and we would entrust guilt or innocence to the decision of a jury and one witness for the prosecution was enough the countries of continental Europe adopted a different rule which was that you should either have two witnesses to the crime or a confession now the lots of crimes you don't get two witnesses and so they needed a confession and how better to get a confession and to torture somebody until they confessed and this was an accepted practice in the countries of continental Europe until an amazingly late date there was eighteenth-century textbooks of a very elegant young men and powdered wig and hose and silk stockings putting people to the rack and thumbscrew and this sort of thing so we led the way in 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 terms so as I say I'm a total opponent of torture and any shape or form and I don't think we should lend it any countenance

Channel: RSA

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Keywords: rsa, the rsa, royal society of arts, Lord Bingham, law, legal, society, justice, law lord, master of the rolls, Shami, chakrabarti, ethics, ethical, Tom, Bingham

Id: XlMCCGD2TeM

Length: 28min 15sec (1695 seconds)

Published: Wed Mar 10 2010