This article is taken from the March 2025 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issues for just £10.
“Does Brexit mean nothing to you? Did she die in vain?” Well, did she? Recent events have made the question moot. By casting off the shackles of European law and the European Court of Justice, Brexit was supposed to restore our independence as a nation and the sovereignty of our ancient Parliament.
Within the last few weeks, however, profound doubt has been cast on the reality of both. An advisory opinion of one alien court, the International Court of Justice, apparently requires us not only to surrender the strategically vital Chagos Islands and their American-run base but also to bribe Mauritius with billions of pounds to accept them.
Whilst a ruling by another, the International Criminal Court, means that we have meekly agreed to arrest Benjamin Netanyahu, the leader of a friendly state, if he is unwise enough to trust to our hospitality.
Nor are even the most sensitive issues of domestic policy exempt from this galloping foreign interference. Justice demands an exemplary sentence on Axel Rudakubana for his monstrous crimes. But we can’t, the government claims, impose a whole-life term because the United Nations Convention on the Child forbids it — by a few days — on the ground of his age.
Finally, and most extraordinary of all, the Attorney-General, the most senior law officer of the Crown, not only defends these decisions but rejoices in them. “Bring it on,” Lord Hermer KC, crop-headed and belligerent, growls at any dissent.
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What has happened? Was Brexit and the very idea of sovereignty and self-determination a will-o’-the-wisp, an act of collective self-delusion? Or have we stepped through the looking-glass where words — and above all, laws — change their meaning?
The latter is the case. Traditionally, “the rule of law” was a grand but nebulous concept which meant little more in practice than due process. Latterly, however, it has been transmogrified into a sort of primum mobile. It now sits — or so its devotees like Lord Hermer believe — above Parliament and democracy itself, directing them and presuming to set their proper bounds.
The result is a legal revolution, though a revolution by stealth. It’s astonishingly recent, being less than 20 years old. Strangest of all, it rests largely on the say-so of one man: Tom Bingham, successively Master of the Rolls, Lord Chief Justice and Senior Law Lord, and peer of the realm and Knight of the Garter.
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Despite the cascade of offices and honours, “Tom” was modest in demeanour and dress and scrupulous in avoiding the politically partisan utterances of some of his lesser judicial brethren (though he and his wife did read the Guardian at home).
The unkind might say that the resulting semi-anonymity was a useful cloak for a profoundly activist judge. Others saw an almost saintly combination of self-abnegation and moral authority. Firmly in the latter camp was the Guardian journalist Martin Kettle, who hailed “Tom” as the “Greatest Living Englishman” and was rewarded by a complaisant Bingham by being admitted as Boswell to his Johnson.
Like Boswell, Kettle laid it on with a trowel. But, also like Boswell, he got to the essence of the man and his work. In particular, it is Kettle who first uses the term “revolution” to characterise the effect of Bingham’s activities.
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“England is living through revolutionary times,” Kettle declared in his Guardian column of 21 December 2004. This was because the relationship between law and government was undergoing radical change. Two processes were at work. The first was “the development of a highly dynamic doctrine and practice of judicial review of [governmental] administrative action”, which had begun in the late 1960s.
The second and more recent was the incorporation of the European Convention on Human Rights into English law in 1998. This turned the Law Lords “into a de facto constitutional court”, able to rule whether parliamentary statute or ministerial action fell within the scope of the convention.
“It has fallen to Lord Bingham as the Senior Law Lord,” Kettle went on, “to manage and lead this process,” whose aim was restoring “the proper place of law in government”. “Better law and better government go together,” Kettle confidently declared in His Master’s Voice. “We will all be winners if [Lord Bingham’s revolution] succeeds.”
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At this point Bingham’s victory hung in the balance, but events ran his way. Kettle’s piece had been written on the day the Constitutional Reform Act cleared the Lords. The Act, which became law in 2005, set the ancient office of Lord Chancellor on a new and reduced footing. But it was careful to reaffirm that the change did 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”.
The point was driven home by the oath of office specified in the act, by which the incoming Lord Chancellor was to swear to “respect the rule of law (and) defend the independence of the judiciary”.
What the act did not do, however, was define “the rule of law”. Bingham spotted his opportunity and, in his Williams Lecture delivered in Cambridge in November 2006, boldly offered his own definition. Outdoing himself, Boswell Kettle declared the “lecture to be as authoritative as any judicial ruling”. Flattered, Johnson Bingham turned the lecture into a short book and, more or less overnight, the “rule of law” metamorphosed from a cliché into an overarching jurisprudential principle which both explained and entrenched Bingham’s “legal revolution” in the relationship between law and government.
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Bingham summarised his view of the rule of law in a single sentence: “That 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.” From this he deduced eight “sub-rules”, which he discussed seriatim.
Bingham’s master-rule, he claimed, expressed “the fundamental truth” propounded by two great authorities: John Locke, who declared in 1690 that “Where-ever law ends, tyranny begins”; and Tom Paine, who in the heat of the American Revolution in 1776 went further and proclaimed that “as in absolute governments the King is law, so in free countries the law ought to be King: and there ought to be no other”.
Bingham appears to regard the two statements as equivalent. In fact, they are saying two very different things. Locke’s is procedural and insists that due process should apply to the highest magistrate as well as the lowest. Paine, on the other hand, sees law as sufficient in itself and questions the need for executive authority at all.
Which is why, 20 years later in his “Letter to George Washington”, Paine would denounce the American Constitution, which incorporated the powerful executive Paine wanted at all costs to avoid, as “a copy, not quite so base as the original, of the form of the British government”; and excoriated the first President himself as a pseudo-king “with as many addresses in your chest as James II”.
It’s worth getting this point right because it helps make sense of Bingham’s somewhat haphazard shopping-list of the eight “sub-rules of law” he deduces from his principal formulation. Bingham treats these “sub-rules” at random and without logical interconnection. In fact, they divide into two groups which correspond, rather neatly, to the distinction I’ve drawn between Locke and Paine: the larger group of five deal with the law itself and its procedures; the smaller group of three with the relationship of legal to executive/political power and the question of which in the last resort should subordinate itself to the other.
Let’s begin with the first group, since they are the bedrock of law. The law, Bingham declares, should be: accessible and intelligible; minimise legal discretion; eschew prohibitive costs and inordinate delays; follow the principles of natural justice and require the agencies of the state to follow them as well; and ensure public officials neither exceed their powers nor use them unreasonably.
Here, it’s worth pausing a moment. It’s now almost 20 years since Bingham’s promulgation of his eight sub-rules of law and their immediate elevation into legal gospel. In those two decades has there been any reduction in the torrent of legislation? Or improvement in its clarity? Any reduction in the uncertainties of the law, in its staggering delays or soaring costs? Any embracing by the multiple agencies of state of candour or openness or even simple honesty? The answer is no, no, no and no.
Even more remarkable is the resounding silence of the usual suspects on these multiple systemic failures. Only last October, for instance, the Attorney-General, Lord Hermer, gave the eponymous Bingham lecture in which he pledged his and the Starmer government’s absolute commitment to the rule of law at home and especially abroad. But of the mounting mess in his own legal backyard there was not a single word. The conclusion is inescapable: more than half of Bingham’s sub-rules of law are mere sleepers, to which only lip-service is paid and often not even that. Because applying them seriously would challenge lawyers’ own self-interest.
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On the other hand, their self-interest (to say nothing of their vanity and status) is much advanced by Bingham’s three remaining sub-rules: that the law applies equally to all, protects human rights and obeys international law. These sub-rules, naturally, are what Hermer’s lecture focuses on; they are also what have fattened his wallet and flattered his ego.
The principle of equality before the law is a noble one. It’s the conclusion Bingham draws from it that is so problematic. He argues that the fact that everybody is equal before the law means that the same law applies equally to everybody: in other words that the British citizen and the newly arrived illegal immigrant are entitled in effect to the same legal rights. I do not understand his reasoning. Nor, of course, does the great fellow common-law jurisdiction of America where illegal immigrants are rightly, even now, undergoing summary arrest and deportation.
And what makes Bingham’s egalitarian absolutism in this instance all the more puzzling is that he adopts the opposite, highly inegalitarian stance when it comes to human rights. Or rather he did in a subsequent lecture given in Australia. The passage is so frank and unvarnished that it merits quotation in full:
It must nonetheless be accepted that any Bill or Charter of Rights is, in one sense, undemocratic in that it is counter-majoritarian. Its purpose is to give a measure of protection to minorities who lack the strength and the representation to obtain protection through the political process: prisoners, mental patients, gypsies, homosexuals, asylum-seekers, despised racial or religious minorities and the like.
Here Bingham, who had been a History undergraduate at Oxford, forgets or perverts his history. The drawing up of the European Convention on Human Rights owed little or nothing to a concern for minorities; still less did the American Bill of Rights, despite Bingham’s explicit assertion to the contrary.
And look again at Bingham’s list of the groups that the law must protect because politics won’t. It was written almost 20 years ago but (if you replace “homosexual” with “trans”), it is tomorrow’s headline as yet another scandal erupts in Keir’s Two-Tier Britain because the law and its minions in the blob have preferred a minority above the majority: trans men above real women; repeat offenders and shoplifters above the law-abiding and the property-owning; the criminally insane (Rudakubana) above public safety; illegal immigrants, the foreign and the foreigner above the native and the national interest; the enemy (the IRA, Hamas and the Taliban) above the friend.
In short Bingham’s “revolution” has failed, as revolutions almost always do. Aiming to restore “the proper place of law in government”, it has succeeded only in damaging both law and government, perhaps irreparably because Bingham followed in the footsteps of Paine in believing that law should displace, even replace, politics. He sets out the case explicitly in his peroration.
This proposes a law-centred version of the social contract in which the individual and the state alike submit to the rule of law. Unsurprisingly, Bingham found this notion “reassuring to all of us who … devote our professional lives to the service of the law”. “For it means we are not,” he concluded, “mere custodians of a body of arid prescriptive rules, but are … the guardians of an all but sacred flame, which animates and enlightens the society in which we live.” What this windy rhetoric seems to mean is that judges are our new Platonic guardians, elevated above the hurly-burly of life, yet uniquely (and mystically) equipped to resolve its conflicts.
But is this really true? Consider again the case of the homosexual, of whom I am one. Here it was precisely the despised “political process” — the Wolfenden Report, several acts of parliament, and decades of lobbying and campaigning — that brought about the full legal equality and public acceptance we enjoy today. Compare and contrast with the abject failure of judicial activism to provide a similarly enduring settlement of abortion in the USA or asylum and assorted race-based, “community” rights in the UK.
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To answer Bingham’s rhetoric with my own: it is politics and the constitution, not law, which guards the “sacred flame” of a free society. Judges are good for judging and lawyers for lawyering, nothing more. If they want to rule us via the “rule of law”, they should stand for election. They might of course win, like Starmer or, indirectly, Hermer. In which case (as we are abundantly discovering) God help us!
