IA Lord Bingham’s rule of law

By: Mawra Raja

In the United Kingdom, in all seriousness, Lord Bingham, a high-ranked British judge gives a detailed account of rule of law. It mixes two versions well for a cohesive constitution of the themes underlying this exciting and demanding concept. It nicely takes from Joseph Raz the idea of making laws keeping in view their clarity, predictability, publicity and prospectivity for the citizens. At the same time taking inspiration from Ronald Dworkin it smartly adds the provision of fundamental human rights to it.

To start with, these conditions for good lawmaking are rather met when Green Papers take in public opinions, Bills go through line by line analysis by the Parliamentary Houses in Committee Stage, ministers make statements of compatibility with human rights and the final law is easily accessible on legislation.gov.uk. However, the tall order is to nib the government from playing tactics to deflect accountability. The Bingham formula falls short on suggesting a way around nasty politics and mala fide intentions. The incumbent Boris led Conservative government with its no-bargain approach on Judicial Review and Courts Bill 2021 is its writ large.

Although its official statements make it look like a way to achieve its Manifesto pledge, the reality, on the contrary is that it is nothing more than a camouflaged abuse of the judicial process. In this regard Mark Elliot, a professor of public law at the Cambridge University is quite right to call it a euphemistic technique for circumventing judicial accountability. There are no second thoughts that in ruling out review of First-tier and Upper tribunal decisions in asylum cases it has cut off access to the High Court. The government’s rationale that 3% success ratio is the prime consideration for denial is appalling in that fair trial is a substantive right that forfeits policy considerations. Making things worse it has proposed prospective application of quashing orders. This looks like a well-intended initiative in the first place but on closer analysis it turns out to be an affront to rule of law because it facilitates the application of ministerial orders after their nullity by the court.

To be clear Bingham incorporates adequate protection of human rights into his long list of rule of law but the way it affords protection is rather unclear to ordinary citizens. It typically means protection against Ouster clauses through judicial interpretation only after their inclusion in law. Its robust application can be seen in the Anisminic v Foreign Compensation Commission. In this case the statute had precluded review of decisions of the Foreign Compensation Commission. While supremacy of Parliament meant that courts were obliged to deny review. However, they also felt the need to protect citizens’ right to access courts. To achieve this tough balance they drew a smart distinction between lawful and unlawful decisions. And reasoned that the statute could never have intended to rule out review of unlawful decisions, that is decisions reached through wrong application of law. In this manner, it paved a way for the review of FCC’s decisions.

To top it off, his checklist includes respect of international treaties in the requirements of rule of law. On the domestic level, in the context of European Union, this means compliance with the decisions of European Court of Justice as laid out in Costa V ENEL. Practically speaking, its parliament has never shied away from making home laws against European Union laws. Its foremost examples are Weight and Measures Act 1985 and Merchant Shipping Act 1988. Likewise, in the context of European Convention on Human Rights it was bound to protect the liberty of citizens as envisaged in Article 5 of the Convention. But it blatantly breaches it by empowering ministers as it did under Terrorism Act 2005 to make derogatory and non-derogatory arrests of terrorist suspects.

The upshot is that for British citizens rule of law is never enough guard against parliament’s ability to make laws contrary to Bingham’s conditions for good law-making. At best its values are a tool to build up pressure on ones in authority. While in situations where outreach is spotted the judiciary comes to the rescue with its judicial review flagship. But the judicial check and balance can always be snubbed through outer clauses or access nipping statutes. In such situations, the judicial interpretive art is the only way out which is not a part of Bingham’s conception of rule of law.