The Rule of Law

Thomas Bingham (Lord Bingham of Cornhill) died this month. His obituary in the Guardian, published on 11th. September, included the following remarks:

"He was also to the fore in promoting a strong, independent judiciary. At a time of growing executive power and a diminishing influence for parliament, and in particular following the terror attacks of 9/11 in New York and 7 and 21 July 2005 in London, the Labour government adopted an increasingly authoritarian approach. This included the power to detain certain foreign nationals indefinitely without charge, and the right to use evidence that may have been obtained by torture in certain legal proceedings. The government also argued for a strong role for the executive, with which the judiciary should not interfere.

In two seminal decisions, in 2004 and 2005 in the two cases of A & Others v Secretary of State for the Home Department, Tom wrote leading judgments rejecting the government's arguments. In so doing, he advanced the rights of all individuals, while recognising the reality of the threat presented by certain forms of terrorism. He rejected – with characteristic firmness, clarity and authority – the government's approach to the judiciary. "The function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself," he wrote in 2004. While the attorney general, on behalf of the government, was entitled to insist on the proper limits of judicial authority, he was "wrong to stigmatise judicial decision-making as in some way undemocratic"."