VivaSync

Everybody believes (or claims to believe) in the rule of law, but how many people could tell you what it means? Although Tom Bingham, recently retired from the post of senior law lord and now free to speak his mind, has spent his life in its service, even he does not find defining it that easy. But his short book is a remarkable essay on the subject, stooping from panoptic heights of generality to brief but meticulously detailed case studies drawn principally from cases in which he himself has been involved (he engagingly likens these to Elisabeth ­Schwarzkopf's choice of eight of her own recordings on Desert Island Discs).

The difficulties of definition are obvious if you stop at the initial proposition that the rule of law is simply public administration and adjudication governed by duly enacted laws – though even this seems to have eluded Richard Nixon, who told David Frost, "If the President does it, that means it is not illegal." The Nazis' Nuremberg Laws and South Africa's apartheid laws both passed the formal constitutionality test. So you have to add at least two other elements.

One is a democratic mandate. Apartheid laws passed by a legislature from which all but whites were excluded, elected on a racially restricted franchise, failed this test dismally. But how about the Nazis, whose demagogy had secured them a parliamentary majority, albeit they promptly set about abusing it? The answer has to be a second element embedded in the rule of law: an irreducible minimum of effective protection of fundamental rights, including equality under laws administered by impartial and independent courts.

It is these elements, rather than the bare foundational principle of a government of laws and not of men, which are contentious, and it is with these that Bingham sets about grappling.

First, what gives a parliament its legitimacy? In most developed countries, Bingham points out, it is a written constitution, with the result that the courts of these countries can tell the legislature that it has acted beyond its powers. This may give law the upper hand, but there is nothing to guarantee that the constitution itself protects fundamental individual rights – unless the courts are prepared to read them in, which is what the supreme courts of many such countries have done.

You can acclaim this as an enhancement of the rule of law, or denounce it as judicial supremacism, depending (if you are honest) on whether you agree or disagree with the substance of what the courts have done, for example in establishing abortion rights in the US or in prioritising free speech over a level electoral playing field in Australia.

In the UK, Parliament's supremacy is an artefact of the historic compromise reached in the 17th century. Bingham, a historian by training, contests the view of some of his judicial colleagues that parliamentary supremacy is itself a product of the common law, capable of being modified or withdrawn by the courts if Parliament behaves unconstitutionally. The issue is not unreal, for government has more than once in recent years tried to get Parliament to pass measures which strike at such fundamental rights as access to the courts or freedom from arbitrary detention. (It has incidentally succeeded, by a little-noticed subsection of the 1971 Immigration Act, in reversing habeas corpus by putting the onus on the individual rather than the state where a deprivation of liberty concerns immigration status.)

But what clinches the argument, in Bingham's view, is that there is no consensus, historical or contemporary, which gives the judgment of an unelected judiciary priority over that of an elected parliament, however oppressive it may be. The answer, he concludes, has to be a codified constitution which limits what even Parliament may do – if, he cautiously adds, that is what the British people want.

If there are to be such limits on what Parliament can do, what should they be? To some extent Parliament itself has already answered this by giving the law of the EU superiority over its own laws (membership of the EU requires this), and by requiring the courts to judge the compatibility of both administration and legislation with the European Convention on Human Rights (though without any power to strike down Parliament's statutes). The latter has come under sustained media attack since the day in 2000 that the Human Rights Act came into force, to the extent that ministers have been running for cover and the opposition has undertaken to repeal it. But what would replace it?

Whatever the detail, Bingham has a clear response: critics, he says, must ultimately answer two questions (questions which voters might well want to ask their candidates). First, which of the ECHR rights that he describes in his text would they discard? Second, would they rather live in a country in which these rights were not protected by law?

The point of greatest pressure is, of course, terrorism. Have the rules of the game changed since 9/11, as Tony Blair asserted? And if they have, do they now permit invasion at will of hostile states, torture of captives and indefinite detention without trial? Bingham's answer, a resounding no, is perhaps the most compelling part of his book because it is here that he calls up and demolishes in scholarly detail the UK's reasons for joining Bush's illegal attack on Iraq, and describes what the courts of this country have done (he does not mention that it has been chiefly under his leadership) to maintain the rule of law in the face of ministerial and legislative ­assaults on it.

Old-fashioned policing has probably been more effective than anything else in heading off domestic terrorism in the UK. By contrast, and in concert with many other scholars and lawyers, Bingham's argument is that to fight fire with fire is to do terrorism's work for it by sacrificing the very rule of law, with its underlying regard for human rights, which makes our society worth defending.

Stephen Sedley is a Lord Justice of Appeal. A collection of his essays on law, Ashes and Sparks, will be published by CUP later this year.

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