The Rule of Law

Lord Bingham has put together a superb book on the rule of law, brimming with insight and learning. It’s a short work – octavo, 174 pages – and perfectly accessible to the intelligent general reader at which it is aimed.

I say “put together” because there is little in it that he has not said before. At the heart of his book is the lecture Bingham delivered in Cambridge in 2006 in honour of Sir David Williams. What must have been a rather demanding hour’s listen has now been spread across an entire book, expanded and illustrated with extracts from other lectures in a way that is much easier to follow.

Bingham is clearly rather grumpy about the fact that news editors did not fall into a swoon of eager anticipation in 2006 on hearing that a judge was off to Cambridge to deliver an academic analysis of a fundamental legal principle. As he writes in his preface,

the legal correspondents of the leading newspapers largely ignored the lecture (save on one relatively minor point), understandably regarding it as old hat, and it certainly lacked the kind of outright criticism of the government which whets the appetite of legal correspondents.

I think that rather grudging parenthesis must refer to my own coverage: I reported Bingham’s view that “the Attorney General, Lord Goldsmith, should have published his full legal advice on the legality of the Iraq war before troops went into battle, for the benefit of ‘those who are to fight and perhaps die’.”

But I accept that I was taken in by the oldest trick in the book – the skill of making an intrinsically difficult task look so effortlessly easy that you think you could have done it yourself. The rule of law is a concept that we think we all understand. But, as Bingham explains, the draftsman of the Constitutional Reform Act 2005 left the phrase undefined not because it was so easy to summarise but because it was so difficult.

Another speech on which Bingham draws heavily for his book is his Grotius Lecture, delivered on November 17, 2008, in which he said that Goldsmith’s advice to ministers on Britain’s invasion of Iraq was “flawed in two fundamental respects”, adding that he believed there had been “a serious violation of international law and of the rule of law”.

The speech was covered fully – while Bingham was still on his feet – in the blog I then wrote for The Daily Telegraph. Indeed, Bingham added a passage to his lecture – printed on pp 124/5 on the book – to record (though not adopt) the position taken by Goldsmith and supported at the time by Jack Straw. That came after I had followed normal journalistic practice by asking Goldsmith for a response to Bingham’s draft.

Although this speech would certainly have excited news desks and broadcasters, neither Bingham nor British Institute of International and Comparative Law publicised the lecture in advance and it therefore received minimal coverage.

Fortunately for Penguin, this subject is still very topical. I say fortunately, because Bingham delivered his manuscript more than a year ago – although it seems to have been updated, perhaps in page proof, as recently as last June.

Why do publishers take so long to bring out books? Is it because they don’t trust authors to deliver a usable text on time? Or because the bookshops need to place their orders months in advance? Neither of these excuses seem very plausible to me. But that’s publishing for you.

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