The Rule of Law PDF

 PENGUIN BOOKS THE RULE OF LAW Tom Bingham, ‘the most eminent of our judges’ (Guardian), held office successively as Master of the Rolls, Lord Chief Justice of England and Wales and Senior Law Lord of the United Kingdom, the only person ever to hold all three offices....

 PENGUIN BOOKS THE RULE OF LAW Tom Bingham, ‘the most eminent of our judges’ (Guardian), held office successively as Master of the Rolls, Lord Chief Justice of England and Wales and Senior Law Lord of the United Kingdom, the only person ever to hold all three offices. He became a life peer, as Baron Bingham of Cornhill in the County of Powys, on becoming Lord Chief Justice in 1996. In 2005 he was appointed a Knight of the Garter, the first professional judge to be so honoured. He retired in 2008, and in the same year was elected by the Institut de France as the first winner of the Prize for Law awarded by the Alexander S. Onassis Public Benefit Foundation. Tom Bingham died in September 2010, six months after the first publication of this book. The Bingham Centre for the Rule of Law was established in 2010, with Lord Bingham’s support, as part of the British Institute of International and Comparative Law, and strives to support the development and strengthening of the rule of law as set out in this book. The Rule of Law was chosen as a ‘book of the year’ by Chris Patten (in the Observer), Gideon Rachman (in the Financial Times) and Geoffrey Robertson (in the New Statesman).  TOM BINGHAM The Rule of Law PENGUIN BOOKS PENGUIN BOOKS  Published by the Penguin Group Penguin Books Ltd, 80 Strand, London WC2R 0RL, England Penguin Group (USA) Inc., 375 Hudson Street, New York, New York 10014, USA Penguin Group (Canada), 90 Eglinton Avenue East, Suite 700, Toronto, Ontario, Canada M4P 2Y3 (a division of Pearson Penguin Canada Inc.) Penguin Ireland, 25 St Stephen’s Green, Dublin 2, Ireland (a division of Penguin Books Ltd) Penguin Group (Australia), 250 Camberwell Road, Camberwell, Victoria 3124, Australia (a division of Pearson Australia Group Pty Ltd) Penguin Books India Pvt Ltd, 11 Community Centre, Panchsheel Park, New Delhi – 110 017, India Penguin Group (NZ), 67 Apollo Drive, Rosedale, Auckland 0632, New Zealand (a division of Pearson New Zealand Ltd) Penguin Books (South Africa) (Pty) Ltd, 24 Sturdee Avenue, Rosebank, Johannesburg 2196, South Africa Penguin Books Ltd, Registered Offices: 80 Strand, London WC2R 0RL, England www.penguin.com First published by Allen Lane 2010 Published in Penguin Books 2011 Copyright © Tom Bingham, 2010  All rights reserved The moral right of the author has been asserted Except in the United States of America, this book is sold subject to the condition that it shall not, by way of trade or otherwise, be lent, re-sold, hired out, or otherwise circulated without the publisher’s prior consent in any form of binding or cover other than that in which it is published and without a similar condition including this condition being imposed on the subsequent purchaser ISBN: 978-0-14-196201-6  Contents Preface PART I 1 The Importance of the Rule of Law 2 Some History PART II 3 The Accessibility of the Law 4 Law not Discretion 5 Equality Before the Law 6 The Exercise of Power 7 Human Rights 8 Dispute Resolution 9 A Fair Trial 10 The Rule of Law in the International Legal Order PART III 11 Terrorism and the Rule of Law 12 The Rule of Law and the Sovereignty of Parliament Epilogue Notes For Elizabeth  Preface In 2006 I was asked to give the sixth Sir David Williams Lecture at the University of Cambridge. This is an annual lecture established in honour (not, happily, in memory) of a greatly respected legal scholar, leader and college head in that university. The organizers generously offered me a free choice of subject. Such an offer always poses a problem to unimaginative people like myself. We become accustomed at school and university to being given a subject title for our weekly essay, and it was rather the same in legal practice: clients came with a specific problem which they wanted answered, or appeared before the judge with a specific issue which they wanted (or in some cases did not want) resolved. There was never a free choice of subject matter. I chose as my subject ‘The Rule of Law’. I did so because the expression was constantly on people’s lips, I was not quite sure what it meant, and I was not sure that all those who used the expression knew what they meant either, or meant the same thing. In any event, I thought it would be valuable to be made to think about the subject, the more so since the expression had recently, for the first time, been used in an Act of the British Parliament, described rather portentously as ‘an existing constitutional principle’. 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. But Martin Kettle, writing in the Guardian on 25 November 2006, thought the subject of some importance and suggested ‘we need leaders who better understand the rule of law’. (On the same day the newspaper carried a headline asking ‘Is this judge the most revolutionary man in Britain?’, having a couple of years earlier described me as ‘the radical who is leading a new English revolution’. This would have surprised my former tutor, the distinguished historian Christopher Hill. But the headline question was left unanswered, and I should warn those who look to this book for a revolutionary action plan that they are doomed to disappointment.) Since then, interest in this subject has, I think, continued to grow, fortified by concerns about the interrelationship between the rule of law, human rights and civil liberties on the one hand and security against terrorist attack on the other. The subject is one which merits consideration at greater length than is possible in a lecture. But in this book I have drawn heavily on what I said in that lecture and in others. This book, although written by a former judge, is not addressed to lawyers. It does not purport to be a legal textbook. It is addressed to those who have heard references to the rule of law, who are inclined to think that it sounds like a good thing rather than a bad thing, who wonder if it may not be rather important, but who are not quite sure what it is all about and would like to make up their minds. I begin in Chapter 1 of Part I with a brief, general introduction to what the rule of law means to us in Britain and other liberal democracies today, and to why it is important. Chapter 2 identifies some historical milestones on the way to our current conception of the rule of law. In my choice of milestones I am highly selective and shamelessly Anglocentric. Others more learned than I would choose different historical events, and cast their net more widely. But I stand by my selection, eccentric though some of my choices may appear to be, because the British have a history in this field of which they have every reason to be immensely proud, and I do not think it is as well known as it should be. Those with limited time, short attention spans or quick bus rides to work may wish to skip Chapter 2 and go straight to Chapter 3, but I hope they will not, since I think it illuminates the present to understand how we got there (and anyway the history is rather interesting). Part II, comprising Chapters 3–10, is the heart of the book, and in these chapters I seek to break down my very general definition of the rule of law into its constituent parts. Part III covers two general topics. In Chapter 11, I consider the impact of terrorism on the rule of law: are the rules of the game changing, as Tony Blair suggested on 5 August 2005? In Chapter 12 I discuss the interaction of parliamentary supremacy and the rule of law: a knotty problem, since parliamentary supremacy and the rule of law are usually said to be the two fundamental principles underlying our constitution in the UK, but they may not be entirely harmonious bedfellows. I am immensely indebted to all those who as academics or judges have contributed to discussion of this subject, and to counsel appearing in numerous cases who have sought to expound, rely on and uphold the rule of law. But my most particular thanks are due to Richard Moules, Matthew Slater and Nicholas Gibson, who, as my successive judicial assistants between 2005 and 2008, have done almost all the digging for material, and to Diana Procter, who has saved me down the years from many errors. None of them, of course, is responsible for my opinions, with which they may well disagree. I owe a special debt to Kate Simmonds, who, in her scenic eyrie above the River Wye, typed and retyped the manuscript of this book. I am lastly very grateful to Caroline Dawnay of United Agents for her help and encouragement, and to Stuart Proffitt of Penguin Books, who conceived the idea of the book and made many helpful suggestions. I must, finally, plead for mercy on two counts. First, to avoid the cumbrous ‘he or she’ and ‘his or hers’, and the ungrammatical ‘they’ when used in the singular, I have mostly stuck to saying ‘he’ or ‘his’. I hope that this will be understood in an unchauvinistic, gender-neutral, way. Secondly, I am conscious of referring, disproportionately, in endnote references, to cases in which I have been involved. These are the cases most familiar to me. Perhaps – I do not know – this was the reason Elisabeth Schwartzkopf gave when, appearing on Desert Island Discs, she chose to console herself during her solitary exile with an exclusive choice of her own recordings.  PART I 1 The Importance of the Rule of Law Credit for coining the expression ‘the rule of law’ is usually given to Professor A. V. Dicey, the Vinerian Professor of English Law at Oxford, who used it in his book An Introduction to the Study of the Law of the Constitution, published in 1885. The book made a great impression and ran to several editions before his death and some after. But the point is fairly made that even if he coined the expression he did not invent the idea lying behind it. One author1 has traced the idea back to Aristotle, who in a modern English translation2 refers to the rule of law, although the passage more literally translated says: ‘It is better for the law to rule than one of the citizens’, and continues: ‘so even the guardians of the laws are obeying the laws’. Another author3 points out that in 1866 Mr Justice Blackburn (later appointed as the first Lord of Appeal in Ordinary, or Law Lord) said: ‘It is contrary to the general rule of law, not only in this country, but in every other, to make a person judge in his own cause …’4. The same author5 points out that the expression ‘The Supremacy of the Law’ was used as a paragraph heading in 1867. So Dicey did not apply his paint to a blank canvas. But the enormous influence of his book did mean that the ideas generally associated with the rule of law enjoyed a currency they had never enjoyed before. Dicey gave three meanings to the rule of law. ‘We mean, in the first place,’ he wrote, ‘that no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.’6 Dicey’s thinking was clear. If anyone – you or I – is to be penalized it must not be for breaking some rule dreamt up by an ingenious minister or official in order to convict us. It must be for a proven breach of the established law of the land. And it must be a breach established before the ordinary courts of the land, not a tribunal of members picked to do the government’s bidding, lacking the independence and impartiality which are expected of judges. Dicey expressed his second meaning in this way: ‘We mean in the second place, when we speak of “the rule of law” as a characteristic of our country, not only that with us no man is above the law, but (which is a different thing) that here, every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.’7 Thus no one is above the law, and all are subject to the same law administered in the same courts. The first is the point made by Dr Thomas Fuller (1654–1734) in 1733: ‘Be you never so high, the Law is above you.’8 So, if you maltreat a penguin in the London Zoo, you do not escape prosecution because you are Archbishop of Canterbury; if you sell honours for a cash reward, it does not help that you are Prime Minister. But the second point is important too. There is no special law or court which deals with archbishops and prime ministers: the same law, administered in the same courts, applies to them as to everyone else. Dicey put his third point as follows: There remains yet a third and a different sense in which ‘the rule of law’ or the predominance of the legal spirit may be described as a special attribute of English institutions. We may say that the constitution is pervaded by the rule of law on the ground that the general principles of the constitution (as for example the right to personal liberty, or the right of public meeting) are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the courts; whereas under many foreign constitutions the security (such as it is) given to the rights of individuals results, or appears to result, from the general principles of the constitution.9 Dicey’s dismissive reference to foreign constitutions would now find few adherents. But he was a man of his time, and was concerned to celebrate, like Tennyson, A land of settled government, A land of just and old renown, Where Freedom slowly broadens down From precedent to precedent. (‘You ask me, why …’) Thus he had no belief in grand declarations of principle (and would, I think, have had very mixed views on the Human Rights Act 199810), preferring to rely on the slow, incremental process of common law decision-making, judge by judge, case by case. Dicey’s ideas continued to influence the thinking of judges for a long time,11 and perhaps still do, but as time went on they encountered strong academic criticism. His foreign comparisons were shown to be misleading, and he grossly understated the problems which, when he wrote, faced a British citizen seeking redress from the government.12 As the debate broadened, differing concepts of the rule of law were put forward until a time came when respected commentators were doubtful whether the expression was meaningful at all. Thus Professor Raz has commented on the tendency to use the rule of law as a shorthand description of the positive aspects of any given political system.13 Professor Finnis has described the rule of law as ‘[t]he name commonly given to the state of affairs in which a legal system is legally in good shape’.14 Professor Judith Shklar has suggested that the expression may have become meaningless thanks to ideological abuse and general over- use: ‘It may well have become just another one of those self- congratulatory rhetorical devices that grace the public utterances of Anglo-American politicians. No intellectual effort need therefore be wasted on this bit of ruling class chatter.’15 Thomas Carothers, in 2003, observed that ‘There is also uncertainty about what the essence of the rule of law actually is’.16 Professor Jeremy Waldron, commenting on the decision of the US Supreme Court in Bush v Gore17 – the case which decided who had won the presidential election in 2000, and in which the rule of law had been invoked by both sides – recognized a widespread impression that utterance of those magic words meant little more than ‘Hooray for our side’.18 Professor Brian Tamanaha has described the rule of law as ‘an exceedingly elusive notion’ giving rise to a ‘rampant divergence of understandings’ and analogous to the notion of the Good in the sense that ‘everyone is for it, but have contrasting convictions about what it is’.19 In the light of opinions such as these, it is tempting to throw up one’s hands and accept that the rule of law is too uncertain and subjective an expression to be meaningful. But there are three objections to this course. The first is that in cases without number judges have referred to the rule of law when giving their judgments.20 Thus in one case, concerned with an effective increase made by the Home Secretary in the term to be served by a young convicted murderer, Lord Steyn, sitting in the House of Lords, said: ‘Unless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the rule of law. And the rule of law enforces minimum standards of fairness, both substantive and procedural.’21 In a very different kind of case concerned with appeals against decisions made on issues of town and country planning, Lord Hoffmann, also sitting in the House of Lords, said: ‘There is however another relevant principle which must exist in a democratic society. That is the rule of law.’22 Statements of this authority, and many others like them, cannot be dismissed as meaningless verbiage.  The second objection is that references to the rule of law are now embedded in international instruments of high standing. Thus the preamble to the Universal Declaration of Human Rights 1948 – the great post-war statement of principle associated with the name of Mrs Eleanor Roosevelt – described it as ‘essential, if man is not to be compelled to have recourse, as a last result, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law’. The European Convention of Human Rights 1950, of which the UK was the first signatory, referred to the governments of European countries as having ‘a common heritage of political traditions, ideals, freedom and the rule of law …’. Article 6 of the Consolidated Version of the Treaty on European Union, to which the UK is also a party, provides: ‘The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.’ Thus there is a strong international consensus that the rule of law is a meaningful concept, and a rather important one at that. The 1996 Constitution of South Africa, declaring in clause 1 the values on which the Republic is founded, lists the ‘Supremacy of the Constitution and the rule of law’. Although ‘the rule of law’ is, obviously, an English expression, familiar in the UK and in countries such as Ireland, the United States, Canada, Australia and New Zealand, whose law has been influenced by that of Britain, it is also meaningful in countries whose law is influenced by the jurisprudence of Germany, France, Italy, the Netherlands and Spain. In Germany, for instance, reference is made to the Rechtstaat, in France to the État de droit, which, literally translated, mean ‘the law-governed state’. The third objection is that reference is now made to the rule of law in a British statute. The Constitutional Reform Act 2005 provides, in section 1, that the Act does not adversely affect ‘(a) the existing constitutional principle of the rule of law; or (b) the Lord Chancellor’s existing constitutional role in relation to that principle’. Under section 17(1) of the Act the Lord Chancellor must, on taking office, swear to respect the rule of law and defend the independence of the judges. So 17(1) of the Act the Lord Chancellor must, on taking office, swear to respect the rule of law and defend the independence of the judges. So there we have it: the courts cannot reject as meaningless provisions deliberately (and at a late stage of the legislative process) included in an Act of Parliament, even if they were to sympathize with some of the more iconoclastic views quoted above, as few (I think) would. The practice of those who draft legislation is usually to define exactly what they mean by the terms they use, so as to avoid any possibility of misunderstanding or judicial misinterpretation. Sometimes they carry this to what may seem absurd lengths. My favourite example is found in the Banking Act 1979 Appeals Procedure (England and Wales) Regulations 1979, which provide that: ‘Any reference in these regulations to a regulation is a reference to a regulation contained in these regulations.’ No room for doubt there. So one might have expected the Constitutional Reform Act to contain a definition of so obviously important a concept as the rule of law. But there is none. Did the draftsmen omit a definition because they thought that Dicey’s definition was generally accepted, without cavil, and called for no further elaboration? Almost certainly not: parliamentary draftsmen are very expert and knowledgeable lawyers, whose teachers would have expressed scepticism about some features of Dicey’s analysis. More probably, I think, they recognized the extreme difficulty of devising a pithy definition suitable for inclusion in a statute. Better by far, they might reasonably have thought, to omit a definition and leave it to the judges to rule on what the term means if and when the question arises for decision. In this way a definition could be forged not in the abstract but with reference to particular cases and it would be possible for the concept to evolve over time in response to new views and situations. Once the existing constitutional principle of the rule of law had been expressly written into a statute, it was only a matter of time before it was relied on by a litigating party. This duly occurred, perhaps sooner than anyone expected, in a case challenging a decision of the Director of the Serious Fraud Office to stop an investigation into allegedly corrupt payments said to have been made by BAE Systems Ltd. to officials in Saudi Arabia. His decision was held by one court to be contrary to the rule of law, although the House of Lords ruled that it was not, and therefore did not have to rule on what the rule of law meant in that context.23 But the question is bound to arise again, and the task of devising at least a partial definition cannot be avoided indefinitely. So I think we must take the plunge. The core of the existing principle is, I suggest, that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts. This statement, as will appear in Chapters 3–10, is not comprehensive, and even the most ardent constitutionalist would not suggest that it could be universally applied without exception or qualification. There are, for example, some proceedings in which justice can only be done if they are not conducted in public, as where a manufacturer sues to prevent a trade competitor unlawfully using a secret and technical manufacturing process. But generally speaking any departure from the rule I have stated calls for close consideration and clear justification. My formulation owes much to Dicey, but I think it also captures the fundamental truth propounded by the great English philosopher John Locke in 1690 that ‘Wherever law ends, tyranny begins’.24 The same point was made by Tom Paine in 1776 when he said ‘that in America THE LAW IS KING. For 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.’25 None of this requires any of us to swoon in adulation of the law, let alone lawyers. Many people on occasion share the view of Mr Bumble in Oliver Twist that ‘If the law supposes that … the law is a ass – a idiot.’ Many more share the ambition expressed by one of the rebels in Shakespeare’s Henry VI, Part II, ‘The first thing we do, let’s kill all the lawyers.’ Few would choose to set foot in a court at any time in their lives if they could avoid it, perhaps echoing an Italian author’s description of courtrooms as ‘gray hospitals of human corruption’.26 As for the judges, the public entertain a range of views, not all consistent (one minute they are senile and out of touch, the next the very people to conduct a detailed and searching inquiry; one minute port-gorged dinosaurs imposing savage sentences on hapless miscreants, the next wishy-washy liberals unwilling to punish anyone properly for anything), although often unfavourable. But belief in the rule of law does not import unqualified admiration of the law, or the legal profession, or the courts, or the judges. We can hang on to most of our prejudices. It does, however, call on us to accept that we would very much rather live in a country which complies, or at least seeks to comply, with the principle I have stated than in one which does not. The hallmarks of a regime which flouts the rule of law are, alas, all too familiar: the midnight knock on the door, the sudden disappearance, the show trial, the subjection of prisoners to genetic experiment, the confession extracted by torture, the gulag and the concentration camp, the gas chamber, the practice of genocide or ethnic cleansing, the waging of aggressive war. The list is endless. Better to put up with some choleric judges and greedy lawyers.  2 Some History In this chapter I discuss, in an impressionistic, episodic and highly selective way, what seem to me to be important historical milestones on the way to the rule of law as we know it today. (1) Magna Carta 1215 My point of embarkation is Magna Carta. Everyone has heard of this, the Great Charter. Some have set eyes on one or more of the three surviving originals in the British Library or Salisbury or Lincoln. It is very hard to decipher. It is in Latin. And even in translation much of it is very obscure and difficult to understand. But even in translation the terms of chapters 39 and 40 have the power to make the blood race: 39. No free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land. 40. To no one will we sell, to no one deny or delay right or justice. These are words which should be inscribed on the stationery of the Ministry of Justice and the Home Office, in place of the rather vapid slogans which their letters now carry. Magna Carta was annulled by the Pope within a few months, on the ground that it had been exacted from King John by duress, and it has given rise to much bad history. It was not at that stage a statute, since there was nothing recognizable as a parliament. It did not embody the principles of jury trial, which was still in its infancy, or habeas corpus, which in its modern form had yet to be invented.1 The language of chapter 39 has been criticized as ‘vague and unsatisfactory’,2 and it has been said that chapter 40 ‘has had much read into it that would have astonished its framers’.3 It would, moreover, be a travesty of history to regard the barons who confronted King John at Runnymede as altruistic liberals seeking to make the world a better place. But, for all that, the sealing of Magna Carta was an event that changed the constitutional landscape in this country and, over time, the world. There were four main reasons for this. First, and in contrast with other European charters of the period, including the Golden Bull of Hungary of 1222, it was a grant to all free men throughout the realm.4 Of course, not all men (or women) at the time were free. But to an exceptional degree it assumed a legal parity among all free men, thus contributing to a sense of community which may, perhaps, help to explain Britain’s happy freedom from bloody revolution since its civil war 350 years ago. Secondly, and contrary to the impression given by some elementary history books, the charter was not an instant response to the oppression and exactions of a tyrannous king. It is true that during the reign of King John the country did experience what later came to be called ‘the smack of firm government’. It is also true that his domestic difficulties were exacerbated by his dispute with the Church and his military failures. But the roots of Magna Carta went much deeper. It drew heavily on earlier models, not least King Henry I’s charter of liberties and the coronation oaths of previous kings. The charter of Henry I, issued on his accession to the throne in 1100 as a sort of non-election manifesto, promised relief from the evil custom and oppressive taxation of the previous reign, but also forbade the imposition of excessive penalties and required that penalties should fit the crime, reflecting the nature of the offence. The coronation oath included a promise to exercise justice and mercy in all judgments, an oath still (with minor modifications) prescribed by section 3 of the Coronation Oath Act 1688 and sworn by Queen Elizabeth II in 1953. Leading authorities are agreed. Dr McKechnie has written: 1953. Leading authorities are agreed. Dr McKechnie has written: Looking both to the contents and the formalities of execution of John’s Great Charter, the safer opinion would seem to be that, like the English Constitution, it is of mixed origin, deriving elements from ancestors of more races than one; but that the traditional line of descent from the oaths and writs of Anglo-Saxon kings, through the Charter of Henry I, is one that cannot be neglected.5 To the same effect, Sir James Holt, the greatest modern authority on the charter, has written: ‘Magna Carta was not a sudden intrusion into English society and politics. On the contrary, it grew out of them … Laymen had been assuming, discussing and applying the principles of Magna Carta long before 1215. They could grasp it well enough.’6 This is important. Magna Carta was not a peace accord botched up to meet a sudden crisis and, as history repeatedly shows, liable to unravel. It had a quality of inherent strength because it expressed the will of the people, or at any rate the articulate representatives of the people. Thirdly, the Charter was important because it represented and expressed a clear rejection of unbridled, unaccountable royal power, an assertion that even the supreme power in the state must be subject to certain overriding rules. Only by transporting ourselves imaginatively to the early thirteenth century can we appreciate how big a step this was. Today in the UK we speak of the supreme legislative authority as the Queen in Parliament, of the executive as Her Majesty’s Ministers and of the judiciary as Her Majesty’s Judges, and this is legally correct. But we know that the Queen has no choice but to assent to legislation duly laid before her, and that she has no power personally to hire or fire her ministers or her judges. In 1215 it was different. These powers, legislative, executive and judicial, really were concentrated in the King, the Lord’s Anointed. But he became subject to the constraint of the law. That is why Magna Carta was such a significant watershed. There, clearly recognizable, was the rule of law in embryo. But, fourthly, the significance of Magna Carta lay not only in what it actually said but, perhaps to an even greater extent, in what later generations claimed and believed it had said. Sometimes the myth is more important than the actuality. It has been said that ‘Getting its history wrong is part of being a nation.’7 So it was with Magna Carta. The myth proved a rallying point for centuries to come – and still does, for example when a government proposes some restriction of jury trial. And its influence is not purely local. An American author, writing in 1991, calculated that more than 900 federal and state courts in the United States had cited Magna Carta. In the half-century between 1940 and 1990, the Supreme Court had done so in more than sixty cases.8 (2) Habeas corpus: the challenge to unlawful detention My second milestone is the old writ of habeas corpus or, to give the writ its full name (betraying its venerable origin), habeas corpus ad subjiciendum. The issue of a writ to secure the presence in court of a defendant or criminal suspect was familiar by the early thirteenth century, a welcome sign that even at that stage judges preferred to make orders when the party to be charged was before them.9 But it was not then used to protect the liberty of the subject or investigate the lawfulness of a person’s detention. That came later, when the writ was issued with another writ seeking an order of certiorari (now called a quashing order), and its development owed much to a competitive struggle for business between the courts administering the common law, the Court of Chancery administering its equity jurisdiction and the Court of High Commission, a royal prerogative court acting directly on behalf of the Crown.10 The substantive remedy of habeas corpus was not, as already observed, a product of Magna Carta, but over time, however unhistorically, it came to be seen as such. Thus we can accept the truth of Sir William Holdsworth’s judgment concerning the protection of liberty in the UK: ‘Without the inspiration of a general principle with all the prestige of Magna Carta behind it, this development could never have taken place; and equally, without the translation of that principle into practice, by the invention of specific writs to deal with cases of infringement, it could never have taken practical shape.’11 The procedure was (and is) essentially simple. An unfortunate person (let us call him A.B.) finds himself languishing in Her Majesty’s Prison at (let us say) Carlisle. He believes that he is, for whatever reason, detained unlawfully. So he procures the issue of a writ addressed to the Governor of Carlisle Prison which, in its modern form (the Latin version having been discarded), commands him to have the body of A.B. before a judge or divisional court at the Royal Courts of Justice in the Strand ‘together with the day and cause of his being taken and detained, that the Court may examine and determine whether such cause is legal’. Thus the essence of the old writ (literally, ‘that you have the body’) is preserved, and the Governor must appear in court, confirm that A.B. is in his custody, state when A.B. was so detained and, crucially, show good legal cause for detaining him, usually a valid order of a court. If he shows good legal cause, A.B. will continue to languish where he is. If he does not, the judge will order A.B. to be released. I have taken the example of a prisoner detained, as he thinks unlawfully, in prison. But the procedure is equally applicable to, for example, a patient compulsorily committed, unlawfully as he thinks, to a mental hospital, the writ in this instance being directed to the superintendent or hospital trust. In Bushell’s Case, decided in 1670, Chief Justice Vaughan was able to assert as simple fact: ‘The writ of habeas corpus is now the most usual remedy by which a man is restored again to his liberty, if he have been against law deprived of it.’12 The simplicity of the writ is its strength and its virtue. It has been widely recognized as the most effective remedy against executive lawlessness that the world has ever seen, a remedy introduced and developed by the judges and adopted elsewhere, notably in the United States. Thus a person may not be detained against his will on the say-so of a dictator or minister or official, unless such direction has the authority of law. He cannot be detained on the unlawful order of a judge either, although such an order is ordinarily challenged by appeal. (3) The abolition of torture Elementary textbooks on the history of medieval England, if of a certain vintage, used to contain pictures and descriptions of trial by ordeal: the suspect was required to hold a piece of molten iron, or was immersed in water, and if he survived without septicaemia or drowning God was held to have intervened to demonstrate his innocence. In an age of belief the practice had a certain logic, and a similar belief has its adherents even now in time of war. But the Lateran Council of 1215 condemned the practice as cruel. So both in England and Wales and in continental Europe other arrangements had to be made. Different procedures were chosen. The procedure adopted in England and Wales was the precursor of jury trial as we know it today. The defendant was put before a jury and evidence was called against him. One witness, if believed, was enough. The defendant could not himself testify, but could call witnesses if he had any. The jury decided whether he was guilty or not. The procedure followed in continental Europe was very different. The Roman-canon models adopted there required that, to convict the defendant, there must be two witnesses, one corroborating the other, or else a confession. The practical problem was that two witnesses were frequently unavailable and the defendant chose not to confess. So, to overcome the latter difficulty, the authorities resorted to torture to force the defendant to confess, not as an exceptional or isolated occurrence but as a routine regularly followed. The significance of this history for present purposes is that from a very early date, not later than the fifteenth century, the common law of England (the law made and administered by the judges, case by case, in the ordinary courts) adamantly set its face against the use of torture and the admission of evidence procured by torture.13 Its rejection of this abhorrent practice was indeed hailed as a distinguishing feature of the common law, and was the subject of proud claims by a series of the greatest English legal writers, including Fortescue, Coke and Blackstone, who contrasted it with the practice adopted in Europe. The English rejection of torture was also the subject of admiring comment by authorities such as Voltaire. In rejecting the use of torture, whether applied to potential defendants or potential witnesses, the common law courts were moved by three considerations: the cruelty of the practice as applied to those unconvicted of any crime; the inherent unreliability of the evidence in confessions so procured, since a person subjected to unbearable pain will say anything which will cause the pain to stop; and a belief that the practice degraded all who had anything to do with it, including the courts if they received or relied on the fruits of such treatment. Despite this rejection of torture by the common law courts, the practice of torture continued in England in the sixteenth and early seventeenth centuries. But this took place pursuant to warrants issued by the royal Council on behalf of the Crown, very largely in relation to alleged offences against the state (such as that committed by Guy Fawkes), in exercise of the royal prerogative and in what were called the royal prerogative courts, most notoriously the Court of Star Chamber. The exercise of this power became one of the important issues in the struggle between the Crown and the parliamentary common lawyers, since to the latter torture was, in the words of one authority, ‘totally repugnant to the fundamental principles of English law’ and ‘repugnant to reason, justice, and humanity’.14 While the history is uncertain, and the myth may again be more important than the actuality, the common law opponents of torture received a fillip from what was believed to have happened. A naval officer named John Felton fatally stabbed George Villiers, the Duke of Buckingham and Lord High Admiral of England, in August 1628. The Duke had been a favourite of King James I and was an intimate friend of King Charles I, who, it is said, consulted the judges whether Felton could be put to the rack to reveal his accomplices. The story is that the judges, having met, answered that Felton ‘ought not by the law to be tortured by the rack, for no such punishment is known or allowed by our law’.15 Whatever the truth of this story, it is certain that one of the very first acts of the Long Parliament in 1640 was to abolish the Court of Star Chamber, in which evidence obtained by torture was received, and since then no torture warrant has been issued in England. By one of the first enactments of the Westminster Parliament following the Act of Union in 1707, Scotland followed suit. But in continental Europe the practice continued for many years: drawings survive of handsome young men in wigs and fine stockings inflicting horrific torments on their bound victims. In France, torture was abolished in 1789; in different parts of Italy, between 1786 (Tuscany) and 1859 (Naples); in Prussia, torture was effectively abolished in 1740, but not formally until 1805; in Baden it continued until 1831; in the Netherlands it was abolished between 1787 and 1798; in Sweden it was forbidden in 1734 but occasionally inflicted later; Denmark abolished the practice in 1771; Russia abolished torture in 1801, but it was used on occasion until 1847. In the United States, torture was proscribed, from 1791 onwards, by the constitutional prohibition of cruel or unusual punishment (see below). What has this got to do with the rule of law? A good deal, I suggest. It was early recognition that there are some practices so abhorrent as not to be tolerable, even when the safety of the state is said to be at risk, even where the price of restraint is that a guilty man may walk free. There are some things which even the supreme power in the state should not be allowed to do, ever. (4) The Petition of Right 1628 not be allowed to do, ever. (4) The Petition of Right 1628 My next milestone, the Petition of Right 1628, is a lineal descendant of Magna Carta and habeas corpus and is perhaps as important a contributor to the rule of law as either. Its genesis has been the subject in recent years of acute scholarly controversy,16 and much of the detailed history is debatable. But the broad picture is reasonably clear. Moved by hostility to the Duke of Buckingham, the House of Commons in 1625 and 1626 denied Charles I the means to conduct military operations abroad which Buckingham was to command. The King was unwilling to give up his military ambitions and resorted to the expedient of a forced loan to finance it. A number of those subject to this imposition declined to pay, and some were imprisoned, among them those who became famous as ‘the Five Knights’: Sir Thomas Darnel, Sir John Corbet, Sir Walter Erle, Sir John Heveningham and Sir Edmund Hampden. Each of them sought a writ of habeas corpus to secure his release. Sir Thomas Darnel was rebuffed at an early stage and gave up the fight. The other four fought on, each represented by eminent counsel, who included John Selden. Their hope was that non-payment of the loan would be given as the reason for their imprisonment, whereupon the lawfulness of the loan could be challenged and investigated in court. But the Crown frustrated this hope by stating that the initial commitment and continued detention of the knights was ‘per speciale mandatum domini regis’, by his majesty’s special commandment. Four King’s Bench judges, headed by the Chief Justice, before whom the matter came had no knowledge, judicially, of why the knights were in prison, and made a simple order (with no final judgment) remanding the knights back to prison. This proceeding was not as novel, or perhaps as shocking, as the subsequent furore might lead one to infer. The judges’ order was, it seems, a provisional (not a final) refusal of bail and followed a familiar form. Those detained were released once the collection of the loan was complete, shortly after the hearing, and this may always have been the intention. Detention at the instance of the executive without charge or trial was not without precedent at the time. But the Commons, when they assembled in 1628, had no appetite for points like these. It was, as Conrad Russell has written, ‘a one-issue Parliament’. It had ‘the conscious and deliberate aim of vindicating English liberties’.17 The outcome of the Five Knights’ Case was one of the issues which fired this determination. Allied with it were the expropriation of personal property, by means of a forced loan, without parliamentary sanction; the billeting of soldiers; and resort to martial law. The parliamentary leadership – a formidable body including Sir Edward Coke, Sir John Eliot, John Pym, John Selden, Edward Littleton, Sir Nathaniel Rich, Sir Robert Phelips, Sir Dudley Digges, Sir John Glanville and others – saw the action of the Crown in these areas as a threat to that ideal of liberty which they claimed as a birthright. And the disquiet to which the decision in the Five Knights’ Case gave rise is not hard to understand: for even if it was no more than a provisional decision on bail, the question inevitably arose whether the power of the King to detain without charge or trial was subject to any legal constraint, and if so what. As is normal in such situations, both sides claimed to be defending the status quo. The leaders of the Commons invoked Magna Carta and later precedents, disavowing reliance on any novel principle. The King for his part declared his loyalty to old laws and customs, while resisting any surrender of his existing prerogative. But in truth the Commons were seeking to establish, more clearly and comprehensively than ever before, the supremacy of the law. On 26 April 1628, Sir Thomas Wentworth, a moderate influence in the Commons, expressed the hope that ‘it shall never be stirred here whether the King be above the law or the law be above the King’.18 But that was the very issue the majority wanted to resolve, in favour of the law. They had not only political reasons for seeking that outcome but also, with many common lawyers prominent among them, professional reasons. For if one of the ingredients of these debates was distrust of the King, another was doubt about the capacity of the common law to protect the subject. ‘If this be law,’ asked Sir Robert Phelips on 22 March 1628, ‘what do we talk of our liberties?’19 The leadership chose to restore trust in the law, and that precluded any workable settlement with the King.20 Thus it was that the Petition of Right came to be accepted by a reluctant Lords and eventually, on 7 June 1628, an even more reluctant King, who shortly thereafter sought to qualify his unqualified assent. Remarkably, although only in form a petition, this instrument was treated and printed as a statute.21 Having invoked Magna Carta and the reference to due process in the revised version of Magna Carta enacted in 1354, clause V provided: Nevertheless against the tenor the said statutes and other the good laws and statutes of your realm to that end provided, divers of your subjects have of late been imprisoned without any cause shown; and when for their deliverance they were brought before your justices by your Majesty’s writ of habeas corpus there to undergo and receive as the Court should order, and their Keepers commanded to certify the causes of their detainer, no cause was certified, but that they were detained by your Majesty’s special command signified by the lords of your Privy Council, and yet were returned back to several prisons without being charged with any thing to which they might make answer according to the law.22 And the conclusion came in clause VIII: They do therefore humbly pray your most excellent majesty that no man hereafter be compelled to make or yield any gift, loan, benevolence, tax or such like charge without common consent by act of parliament, and that none be called to make answer or take such oath or to give attendance or be confined or otherwise molested or disquieted concerning the same or for refusal thereof. And that no freeman in any such manner as is before mentioned be imprisoned or detained. And that your Majesty would be pleased to remove the said soldiers and mariners, and that your people may not be so burdened in time to come. And that the aforesaid commissions for proceeding by martial law may be revoked and annulled. And that hereafter no commissions of like nature may issue forth to any person or persons whatsoever to be executed as aforesaid, lest by colour of them any of your Majesty’s subjects be destroyed or put to death contrary to the laws and franchises of the land. If there is one moment when the rule of law may be said to have come of If there is one moment when the rule of law may be said to have come of age, the acceptance of the Petition of Right, for me, is it. (5) Sir Matthew Hale’s resolutions My fifth milestone is not a great historical event, indeed not a historical event at all. It is the sort of resolution which many people make from time to time, even when it is not New Year: to get up earlier, work harder, take more exercise, drink less, or whatever. Dr Johnson was much given to resolutions of this kind. Sometimes we write these resolutions down, and sometimes they relate to how we do our jobs, as if we are trying to hold ourselves up to the mark by creating a semi- permanent record. A surviving example of this practice is Sir Matthew Hale’s list of ‘Things Necessary to be Continually had in Remembrance’. Hale was Chief Justice of the King’s Bench from 1671 to 1676 and his list dates from the 1660s, being rules composed by him to guide his own conduct as a judge. Some of his precepts have more resonance to modern ears than others, but I set out the list in full as Hale wrote it: 1. That in the administration of justice, I am entrusted for God, the King and Country; and therefore 2. That it be done (1) Uprightly (2) Deliberately (3) Resolutely. 3. That I rest not upon my own understanding or strength, but implore and rest upon the direction and strength of God. 4. That in the execution of justice, I carefully lay aside my own passions, and not give way to them however provoked. 5. That I be wholly intent upon the business I am about, remitting all other cares and thoughts as unseasonable and interruptions. 6. That I suffer not myself to be prepossessed with any judgment at all, till the whole business and both parties be heard. 7. That I never engage myself in the beginning of any cause, but reserve myself unprejudiced till the whole be heard. 8. That in business capital, though my nature prompts me to pity, yet to consider that there is also pity due to the country. 9. That I be not too rigid in matters purely conscientious, where all the harm is diversity of judgment. 10. That I be not biassed with compassion to the poor, or favour to the rich in point of  justice. 11. That popular or court applause or distaste, have no influence into any thing I do in point of distribution of justice. 12. Not to be solicitous what men will say or think, so long as I keep myself exactly according to the rule of justice. 13. If in criminals it be a measuring cast, to incline to mercy and acquittal. 14. In criminals that consist merely in words when no more harm ensues, moderation is no injustice. 15. In criminals of blood, if the fact be evident, severity in justice. 16. To abhor all private solicitations of whatever kind soever and by whomsoever in matters depending. 17. To charge my servants (1) Not to interpose in any business whatsoever (2) Not to take more than their known fee (3) Not to give undue preference to causes (4) Not to recommend counsel. 18. To be short and sparing at meals that I may be fitter for business. This list, made around 350 years ago, is significant because it lays down guidelines which would still today be regarded as sound rules for the conduct of judicial office. Hale recognized, as we would, that judges are servants of the public whose important work calls for their serious, single-minded, professional attention. He knew that he should try to exclude his personal feelings, avoid taking up any partisan position and suspend judgment until all the evidence and both parties had been heard. He acknowledged that in matters of life and death (‘business capital’) the interests of the criminal must be weighed against those of the public and the victim, and violent crimes might require severe penalties, but where the balance was even he inclined towards acquittal and mercy. His resolution was to do what was just, irrespective of public opinion. He would favour neither rich nor poor. He would receive no private representation concerning a pending case, and would keep the conduct of cases in his own personal hands. These are standards to which modern judges still aspire. The judges are not, of course, the only guardians of the rule of law, perhaps not even the most important. Parliamentary and public opinion, informed by the media, should be alert to detect and scrutinize any infringement. But the judges’ role in maintaining the rule of law is crucial, and Hale gave a valuable and relatively early indication of how they should perform their duties. duties. (6) The Habeas Corpus Amendment Act 1679 The Habeas Corpus Amendment Act 1679 would be a little-known footnote to history were it not for events taking place at Guantanamo Bay in Cuba between 2001 and 2009. Following the restoration of the monarchy after the civil war and the Cromwellian Commonwealth, King Charles II’s chief minister was the Earl of Clarendon. He, in the exercise of his executive powers, made a practice of dispatching prisoners to outlying parts of what is now the United Kingdom for the very reason that in those places the writ of habeas corpus did not run, because it was at the time a remedy local to England and Wales. Thus the prisoners were unable to challenge the lawfulness of their detention, as Clarendon intended that they should be. This was held to savour of unaccountable royal authority, and when Clarendon fell from power he was impeached. One of the charges against him was that he had sent persons to ‘remote islands, garrisons, and other places, thereby to prevent them from the benefit of the law’.23 Clarendon fled, and later died in exile. But opposition to this means of depriving prisoners of the protection of habeas corpus did not disappear with him. Legislative measures to rectify this obvious abuse were adopted by the House of Commons on five occasions in the 1670s but on each occasion foundered in the Lords until, in 1679, a further comprehensive Habeas Corpus Amendment Act achieved a majority in that House also. The majority in the Lords was 57 to 55, and if Bishop Burnet (a contemporary historian) is to be believed, even that majority was only achieved because Lord Grey, acting as teller for the ayes, succeeded, without his opposite number noticing, in counting a very fat Lord as 10.24 This attractive story may of course be apocryphal, but Sir William Holdsworth – by no means a frivolous author – describes the passage of the Bill as taking place ‘under circumstances which lend some colour to Burnet’s tale that the majority was arrived at by a miscount’.25 The motive of the United States Government in detaining terrorist suspects at Guantanamo Bay was exactly the same as Clarendon’s: to deny them the remedy of habeas corpus provided in domestic law which, it was thought, could not be invoked by detainees held at an American military base in Cuba. Much litigation, and much suffering, would have been avoided had the rule of law been observed at Guantanamo from the start as it was required to be in the UK in 1679. Whether British officials contributed to the process by which some terrorist suspects ended up in Guantanamo is a question which has been asked but not yet answered. (7) The Bill of Rights 1689 and the Act of Settlement 1701 The revolution of 1688–9, by which James II was expelled and replaced by William III (the Prince of Orange, imported from the Netherlands) and his wife Mary II (James’s daughter), has earned the description ‘glorious’ because it was peaceful. No blood was shed. But for those tracing the development of the rule of law it was also glorious. Magna Carta and the Petition of Right delivered blunt messages that even kings are subject to the law. But King John had repudiated Magna Carta as soon as his immediate crisis was over, and Charles I had responded to the Petition of Right by ruling as an autocrat, without recourse to Parliament, for eleven years. In 1688–9 the message was less blunt, but the more effective for being so: William of Orange was offered the throne, but only if he was willing to accept the terms on which it was offered. There was a constitutional compact, not of the kind which political philosophers hypothesize but one negotiated between the prospective monarch and the political leaders of the day. It is known to history as the Bill of Rights 1689. The flight of James II left the country without a parliament and without a king with authority to summon one. But what passed for the House of Commons appointed a committee of thirty-five members to draw up the terms on which, if he accepted them, William would become king. The committee worked with astonishing speed, drafting a declaration which was negotiated in detail with representatives of William and Mary before they finally accepted it, in the Banqueting House in Whitehall, on Wednesday, 13 February 1689.26 Only then was the deal struck. It thereupon became possible for a parliament to be called, and the Bill of Rights, as agreed by William and Mary with minor amendments, was enacted into law. It received the royal assent on 16 December 1689.27 There is a tendency to think that conventions, charters and bills of rights are a modern development, and the Bill of Rights 1689 was only in part directed to the protection of individual rights. Its main focus was on the rules to which the Crown should be subject. Those rules were of immense and enduring importance. No monarch could again rely on divine authority to override the law.28 The authority and independence of Parliament were proclaimed;29 the integrity of its proceedings was protected30 and there could be no standing army in time of peace without its sanction.31 The power to suspend laws without the consent of Parliament was condemned as illegal.32 So was the power of dispensing with laws or the execution of laws ‘as it hath been assumed and exercised of late’,33 a provision which later legislation was intended to clarify,34 but never did.35 Personal liberty and security were protected by prohibiting the requirement of excessive fines,36 the imposition of excessive bail,37 and the infliction of ‘cruel and unusual punishments’.38 Jury trial was protected.39 Modern readers will here discern the lineaments of the state in which they live. But one thing was lacking. There is little advantage in the promulgation of laws, however benign, unless there are judges who are able and willing to enforce them. Otherwise, the powers that be can disregard the laws with impunity. But if the judges are to enforce the law against the highest authority in the state they must be protected against intimidation and victimization. The committee which drafted the Bill of Rights was alert to this point, and included in their first draft a provision safeguarding the tenure of the judges and protection of their salaries.40 This, however, was dropped when it was decided (in the face of resistance by William of Orange) that the Bill should confirm old rights and not create new ones.41 So it was necessary to defer this question until another day. That day came in 1701 when, in the Act of Settlement, Parliament legislated to provide for the Protestant succession to Queen Anne. The opportunity was then taken to enact the same provision as had been dropped in 1689,42 which passed through both Houses without a division.43 Coupled with a very much older rule which rendered the higher judiciary immune from civil suit or criminal prosecution for acts done in a judicial capacity,44 the foundation of judicial independence was laid. For another sixty years the rule survived that judges need not be reappointed on the accession of a new monarch, and some were not.45 Dr Johnson regretted the revocation of this rule. He pointed out that ‘A Judge may become corrupt … A Judge may become froward from age. A Judge may grow unfit for office in many ways. It was desirable that there should be a possibility of being delivered from him by a new King …’.46 At a time when judges could continue to serve indefinitely, Johnson’s concern was understandable. But on this point, exceptionally, history has disagreed with him. A truly independent judiciary is one of the strongest safeguards against executive lawlessness; it thus becomes a victim of authoritarian governments, as the history of countries such as Zimbabwe and Pakistan graphically illustrates. The lesson that even the supreme authority in the state is subject to the law was painfully learned. It cost one king his head and another his throne. But the Britain which emerged from the Glorious Revolution was one where the rule of law, imperfectly and incompletely, held sway. (8) The Constitution of the United States of America one where the rule of law, imperfectly and incompletely, held sway. (8) The Constitution of the United States of America The Constitution of the United States was a crucial staging-post in the history of the rule of law. It was not the first attempt to draft a document laying down the respective powers and duties of the different institutions of government. Oliver Cromwell, with characteristic prescience, had anticipated it (in the event, unsuccessfully) in his 1653 Instrument of Government. But the US Constitution was ground-breaking in its enlightened attempt to create a strong and effective central government while at the same time preserving the autonomy of the individual states and (in the first ten amendments) preserving the fundamental rights of the individual against what one contemporary commentator called ‘the form of elective despotism’.47 (Whether Lord Hailsham had this phrase in mind, consciously or unconsciously, when, in his 1976 Dimbleby Lecture, he made his much misquoted reference to ‘elective dictatorship’ can only, I think, be a matter of conjecture.48) The Constitution was also ground-breaking in being the product not of dictation by a ruling clique but of wide-ranging, very high quality debate and genuine democratic endorsement. Most revolutionary of all, however, was the Constitution’s enthronement of the law. The preceding history helps to explain why this was done. The leaders of the American Revolution contained a number of prominent lawyers, well versed in the English common law and familiar with what, by this time, Magna Carta was believed to stand for. So, in resisting what they saw as the unlawful pretensions of the British Crown, it was natural for the colonists (like their English counterparts in the middle of the seventeenth century) to rely on the precedent of Magna Carta, treating it as a higher law which the Crown (it was argued) could not defy. It was a short step to providing, when adopting their own Constitution, that it should itself have the status of a higher law, unalterable without a strong popular mandate. Article VI of the Constitution accordingly provided: This Constitution, and the Laws of the United States which shall be made in pursuance thereof;  Article VI of the Constitution accordingly provided: This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. Thus the Congress (Article I), the President (Article II) and the federal judiciary (Article III) were to have such powers as were conferred by or under the Constitution, and none other. This contrasted, and continues to contrast, with the legislative omnipotence theoretically enjoyed by the Crown in Parliament in the UK (as more fully explained in Chapter 12 below). This point was fully appreciated, at any rate on the western side of the Atlantic, at the time. It was made by ‘A Freeman’ to the Freeholders and Freemen of Rhode Island on 20 March 1788. Of the British Parliament, the author correctly said: ‘They are the supreme Legislative, their powers are absolute, and extend to an abolition of Magna Carta itself.’49 The Congress was different: ‘Their powers are not supreme, nor absolute, it being defined by the Constitution: and all powers therein not granted, are retained by State Legislatures.’50 So, for the first time, I think, the law as expressed in the Constitution was to be supreme, binding not only the executive and the judges, but also the Legislature itself. Tom Paine was therefore right to say (see Chapter 1 above) ‘that in America THE LAW IS KING’. This was indeed an advance for the rule of law, giving the law of the Constitution, as interpreted by the Supreme Court of the United States, an authority it had never before enjoyed anywhere. (9) The French Declaration of the Rights of Man and the Citizen 1789 The French Declaration of the Rights of Man and the Citizen 1789 reflected the influence of Rousseau and other philosophers of the eighteenth-century Enlightenment. It was first drafted and put forward by the Marquis de Lafayette, who had returned from America inspired by the principles enshrined in the American Declaration of Independence. It declared that men were born and remained free and equal in rights; that the aim of all political association was to preserve the natural and imprescriptible rights of man; that sovereignty rested in the nation; that liberty consisted in freedom to do anything which was not injurious to others; that the law could only prohibit such actions as were harmful; that law was an expression of the general will; that no one should be accused or arrested or imprisoned except in cases and according to forms laid down by law; that the law should provide for only such punishments as were strictly and obviously necessary, and should not permit retrospective penalization; that as persons were held to be innocent until proved guilty, all unnecessary harshness in their initial treatment should be avoided; that no one should be harassed on account of his opinions and religious beliefs, provided they did not disturb public order; that the free communication of ideas was one of the most precious rights; that protection of the rights of man and the citizen required that there be military forces; that a common contribution to the expenses of the state was necessary; that there should be a right to vote on taxation; that society had the right to require public officials to account for their administrative acts; that a society in which the observance of the law was not assured, nor the separation of powers defined, had no constitution at all; and, finally, that since property was an inviolable and sacred right, no one was to be deprived of it save where public necessity demanded it, and then he should be compensated. Some of these provisions sound quite familiar to modern ears. (10) The American Bill of Rights The first ten amendments to the US Constitution, which took effect on 15 December 1791, have been known as the American Bill of Rights. It covers a lot of ground, some of it echoing the British Bill of Rights but some of it departing, deliberately, from the British model or going beyond it. Article I, framed to restrict the exercise of legislative power, provides that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.’ Article II lays down that ‘A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.’ Article III is directed to the billeting of soldiers in time of peace and war, no doubt a live issue in the aftermath of the American Revolution. Article IV is of more general significance: ‘The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’ Thus, as in England, no general, unspecific, searches were to be authorized. Article V reflected British practice at that time, since modified in some respects: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life and limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without due compensation. The expression ‘due process’, all but sacrosanct in American jurisprudence, derives from later translations of chapter 39 of Magna Carta (see (1) above). Article VI, again, both reflects and goes beyond British practice at the time: In all criminal prosecutions, the accused shall enjoy the right to a speedy trial by an impartial jury of the State and district wherein the crime shall have been committed, … , and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. The third of these rights, known to American lawyers as ‘the confrontation clause’, was an explicit rejection of the notoriously unfair procedure adopted at the trial of Sir Walter Raleigh for treason, when the Attorney General (Sir Edward Coke) adamantly refused to call the chief witness on whose evidence the prosecution relied, evidence which the witness had later retracted. Article VII preserves the right to trial by jury in any civil case where the sum in dispute exceeds twenty dollars. Article VIII, borrowed from the British Bill of Rights (see (7) above), provides: ‘Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.’ Article IX provides for the retention of existing rights not enumerated in the Constitution, and Article X for the reservation to the States of powers not delegated to the Federal government by the Constitution. The American Bill of Rights was the subject of a protracted struggle,51 but the rights guaranteed in 1791 are rights which American citizens continue to enjoy. (11) The law of war I turn to a development of a rather different character, one not occurring at a single time or place and thus rather inaptly described as a milestone. It has taken effect over centuries, although with increasing momentum over the last century or so. I refer to the attempt to establish legally recognized standards of state conduct, even in relation to the use of force (the ius ad bellum, now governed by the United Nations Charter) and the conduct of war or armed conflict (the ius in bello). Rules to restrain the brutality inherent in war were familiar in classical times52 and during the Middle Ages.53 Both Richard II in 1385 and Henry V during the Agincourt campaign in 1415 issued ordinances to govern the conduct of their soldiers vis-à-vis the enemy.54 Under the influence of writers such as Gentili (1552–1608)55 and Grotius (1583–1645)56 a body of customary international law began to grow up, fed by sources such as the 150 Articles of War signed by Gustavus Adolphus II of Sweden in 1621 and deriving its authority from the practice of the nations, regarded by them as a matter of obligation. On occasion such rules were the subject of bilateral treaty, as in the 1785 treaty between the United States and Prussia which, although a treaty of Amity and Commerce, contained provisions to be applied if war between them were to occur. Thus Article 23 defined the immunity of merchants, women, children, scholars, cultivators and others. Article 24 provided for proper treatment of prisoners of war, and began: ‘And to prevent the destruction of prisoners of war by sending them into distant and inclement countries, or by crowding them into close and noxious places, the two contracting parties solemnly pledge themselves to each other and to the world that they will not adopt any such practice.’57 During the American Civil War, Abraham Lincoln commissioned from Francis Lieber, and issued to the Northern army, a notably enlightened Code of War for the Government of the Armies of the United States in the Field. (Lieber was a professor of history at Columbia: born in Berlin in 1800, he had served under Blücher as a teenager in 1815 and fought in the Greek War of Independence before emigrating to the United States in 1827.) Over the last century and a half decisions of international courts and tribunals and the opinions of the learned have been influential in setting the standards of permissible conduct in war, but the scene has been dominated by a plethora of international conventions addressing different aspects of this multi-faceted subject. The history of these conventions yields a rich and diverse gallery of heroes, from whom any selection is to some extent invidious. But certain figures stand out. Among them is that of Jean-Henri Dunant, whose book A Memory of Solferino,58 published in 1862, describing the horrific aftermath of that battle, which he had witnessed, inspired the first, 1864, Geneva Convention on Treatment of the Wounded59 and the foundation of the International Committee of the Red Cross.60 Also worthy of mention is Tsar Alexander II, who convened the conference which promulgated the 1868 St Petersburg Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight, which were liable to cause cruel injuries but not kill, a declaration to which nineteen states assented.61 The initiative of Alexander II was taken further by his grandson, Nicholas II, who convened the First Hague Peace Conference in 1899, which led to three conventions and three declarations. One of the declarations, to which Great Britain acceded despite initial objections, related to a type of bullet first manufactured at the British Indian arsenal of Dum-Dum, near Calcutta.62 The Second Hague Peace Conference of 1907, convened at the instance first of President Theodore Roosevelt and then of Tsar Nicholas II also, was even more productive, giving rise to thirteen conventions and one declaration, most of them directed to the conduct of war on land and sea.63 Among many conventions made after the Second World War under the auspices of the United Nations, special mention may be made of the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide, the eventual outcome of a request made to the Secretary- General by the delegations of Cuba, India and Panama.64 In this much- abbreviated roll of honour I would also include Gustave Moynier, one of the founders of the International Committee of the Red Cross, who in 1872 urged the establishment of an international criminal court to adjudicate on violations of the 1864 Geneva Convention on Treatment of the Wounded. His wish was fulfilled on ratification of the 1998 Rome Statute of the International Criminal Court, although regrettably the United States, a strong supporter of the proposal in its earlier stages and a strong supporter of international criminal tribunals established for the former Yugoslavia and Rwanda in 1993 and 1994,65 in the end refused to become a party, unwilling that its servicemen should be subject to the jurisdiction of a foreign court. It is easy to disparage all these rules as ineffective and difficult to enforce. Many people have done so. But to the extent that the rules have led to anyone – combatants, wounded, prisoners of war, women, children, civilians, non-combatants – being spared the full horror of unrestrained warfare, they must be accounted a victory for the rule of law. (12) The Universal Declaration of Human Rights My final milestone is the Universal Declaration of Human Rights, adopted by the General Assembly of the newly formed United Nations in Paris on 10 December 1948 with 48 votes in favour, eight abstentions66 and no votes against. Contrary to the original wishes of the British and of René Cassin,67 the influential French delegate and negotiator, the declaration was not (and is not) binding. But, drawing on Magna Carta, the Bill of Rights 1689, the French Declaration of the Rights of Man and the Citizen of 1789 and the American Bill of Rights, it has provided the common standard for human rights upon which formal treaty commitments have subsequently been founded, and has inspired the International Covenant on Civil and Political Rights 1966, the International Covenant on Economic, Social and Cultural Rights 1966, the International Covenant on the Elimination of All Forms of Racial Discrimination 1966 and regional treaties such as the European Convention on Human Rights 1950, the American Convention on Human Rights 1969, the African Charter on Human and Peoples’ Rights 1981 and the Arab Convention on Human Rights 1994.68 The framers of the Universal Declaration sought, or received, advice from many sources, which included the Huxleys (Julian and Aldous), H. G. Wells, Teilhard de Chardin and Benedetto Croce.69 The paternity of the Declaration has been the subject of some controversy, and the contribution of René Cassin, though great, has perhaps been exaggerated.70 In the judgment of John Humphrey, the distinguished Canadian international lawyer who prepared the first draft, the Declaration ‘had no father’ because ‘literally hundreds of people … contributed to its drafting’.71 But the Declaration was, as Pope John XXIII was to say in his 1963 encyclical Pacem in Terris, ‘an act of the highest importance’ and the role of leadership was exercised by four people in particular: Eleanor Roosevelt, René Cassin, Charles Malik of Lebanon and P. C. Chang of China. If, as I think, the rule of law now demands protection of fundamental human rights, these four, more than any others, deserve credit for the almost worldwide acceptance of that principle and for the steps taken in many countries thereafter to make the principle enforceable and effective.72  PART II 3 The Accessibility of the Law In Chapter 1, I identified what I described as the core of the existing principle of the rule of law: that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts. I then acknowledged that this principle, so stated, was not comprehensive and not universally applicable. In this and the following chapters I seek to explore the ingredients of the rule of law a little more thoroughly. I do so by advancing eight suggested principles. There is no magic about these. Others would come up with different principles, or would express these principles differently. But it is, I think, necessary to go behind the very general principle I have stated to try and identify what the rule of law really means to us, here and now. (I) The law must be accessible and so far as possible intelligible, clear and predictable Why must it? Why must it? I think there are really three reasons. First, and most obviously, if you and I are liable to be prosecuted, fined and perhaps imprisoned for doing or failing to do something, we ought to be able, without undue difficulty, to find out what it is we must or must not do on pain of criminal penalty. This is not because bank robbers habitually consult their solicitors before robbing a branch of the NatWest, but because many crimes are a great deal less obvious than robbery, and most of us are keen to keep on the right side of the law if we can. One important function of the criminal law is to discourage criminal behaviour, and we cannot be discouraged if we do not know, and cannot reasonably easily discover, what it is we should not do. The second reason is rather similar, but not tied to the criminal law. If we are to claim the rights which the civil (that is, non-criminal) law gives us, or to perform the obligations which it imposes on us, it is important to know what our rights or obligations are. Otherwise we cannot claim the rights or perform the obligations. It is not much use being entitled to, for example, a winter fuel allowance if you cannot reasonably easily discover your entitlement, and how you set about claiming it. Equally, you can only perform a duty to recycle different kinds of rubbish in different bags if you know what you are meant to do. The third reason is rather less obvious, but extremely compelling. It is that the successful conduct of trade, investment and business generally is promoted by a body of accessible legal rules governing commercial rights and obligations. No one would choose to do business, perhaps involving large sums of money, in a country where the parties’ rights and obligations were vague or undecided. This was a point recognized by Lord Mansfield, generally regarded as the father of English commercial law, around 250 years ago when he said: ‘The daily negotiations and property of merchants ought not to depend upon subtleties and niceties; but upon rules easily learned and easily retained, because they are the dictates of common sense, drawn from the truth of the case.’1 In the same vein he said: ‘In all mercantile transactions the great object should be certainty: and therefore, it is of more consequence that a rule should be certain, than whether the rule is established one way or the other. Because speculators [meaning investors and businessmen] then know what ground to go upon.’2 But this is not an old-fashioned and outdated notion. Alan Greenspan, the former chairman of the Federal Reserve Bank of the United States, when recently asked, informally, what he considered the single most important contributor to economic growth, gave as his considered answer: ‘The rule of law.’ Even more recently, The Economist published an article which said: ‘The rule of law is usually thought of as a political or legal matter … But in the past ten years the rule of law has become important in economics too … The rule of law is held to be not only good in itself, because it embodies and encourages a just society, but also as a cause of other good things, notably growth.’3 The article went on to acknowledge some dispute among economists about the strength of the connection between the rule of law and economic growth, drawing attention to China as an exception, but did not suggest there was no connection. Given the importance of this principle, we cannot be surprised to find it clearly stated by courts all over the world. In the House of Lords in 1975 Lord Diplock said: ‘The acceptance of the rule of law as a constitutional principle requires that a citizen, before committing himself to any course of action, should be able to know in advance what are the legal principles which flow from it.’4 He made much the same point a few years later: ‘Elementary justice or, to use the concept often cited by the European Court [the Court of Justice of the European Communities], the need for legal certainty demands that the rules by which the citizen is to be bound should be ascertainable by him (or, more realistically, by a competent lawyer advising him) by reference to identifiable sources that are publicly available.’5 The European Court of Human Rights at Strasbourg has spoken to similar effect: [T]he law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case … a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.6 So too the Chief Justice of Australia, listing the practical conclusions held by Australian courts to be required by the principle of the rule of law: ‘the content of the law should be accessible to the public’.7 So the question arises: how well is this rule observed today? The answer, of course, varies from country to country. In the countries of continental Europe, for example in Germany, France, Italy and the Netherlands, much of the law is found in compact, carefully drafted codes. In many common law countries (such as Australia) considerable effort has been devoted to trying to make legislation clear, succinct and intelligible. In Britain, the answer varies according to the source of the particular law under discussion. There are three main sources which call for consideration. They are, first, laws made by Parliament in duly enacted Acts of Parliament, to which must be added statutory instruments made by ministers or others in the exercise of authority conferred by Act of Parliament. Secondly, there is judge-made law, the decisions made by English or Welsh, Scots or Northern Irish judges laying down rules to govern their decisions in particular cases. The law so made, the common law, can be overridden by statute, but it has a long history, it has not lost its virility with age and in certain fields of law it is the dominant source. The third source is the law of the European Union, of which I say more below. It has effect here and overrides both statute and common law in the ever-growing areas to which it applies and is now an important source of law. Statute law On 11 July 2007 Sir Menzies Campbell, then the Liberal Democrat leader, pointed out in the House of Commons that during the past ten years there had been 382 Acts of Parliament, including ten Health Acts, twelve Education Acts and twenty-nine Criminal Justice Acts, and more than 3,000 new criminal offences had been created.8 Professor Anthony King has drawn attention to a report published in 1992 which calculated that between 1979 and 1992 Parliament passed 143 Acts having a direct bearing on local government in England and Wales and that, of that total, no fewer than 53 effected some radical alteration to the existing system of local government.9 In the year 2006 nearly 5,000 pages of primary legislation (Acts of Parliament) were enacted with in addition some 11,500 pages of subordinate legislation made by ministers. As Sir Menzies observed, ‘The mantra might have been “Education, education, education” but the reality has been “Legislation, legislation, legislation”.’ It seems that legislative hyperactivity has become a permanent feature of our governance. Is this other than a good thing? Those called upon to advise on recent legislative changes or apply them can, one might suppose, find out what they are by assiduous use of the internet, and the changes no doubt represent a parliamentary judgment of what will best serve the needs of the country. There is some force in both these points, but they do not dispel the concerns aroused, from a rule of law perspective, by the torrent of legislation which we have witnessed, particularly in the criminal field, in recent years. The Criminal Justice Act 2003 may be taken as a prime example. A highly experienced and knowledgeable criminal judge has described the provisions of the Act in one case as ‘labyrinthine’ and ‘astonishingly complex’10 and in another as ‘deeply confusing’, adding: ‘We find little comfort or assistance in the historic canons of construction for determining the will of Parliament which were fashioned in a more leisurely age and at a time when elegance and clarity of thought and language were to be found in legislation as a matter of course rather than exception.’11 Thus legislation of this kind poses real problems of assimilation and comprehension, even to senior and seasoned professionals. Part of the problem may lie in what a parliamentary committee criticized as ‘the tendency of all governments to rush too much weighty legislation through Parliament in too short a time’.12 Part of the problem may also lie in the traditional practice of British parliamentary draftsmen, which depends very heavily on cross- reference between provisions in a number of different Acts and statutory instruments, making it necessary for the reader to pursue what may be a long paper-chase through a series of legislative provisions. There is a price for all this. Changes in criminal law or procedure lead to a proliferation of appeals, and the Criminal Cases Review Commission, established to refer suspected miscarriages of justice back to the Court of Appeal, has described the complexity of recent sentencing provisions as a continuing source of references.13 The biggest loser is, of course, the ordinary person who wants to try and find out, probably with professional help, what the law is. A recent case illustrates the problems to which this legislative confusion gives rise.14 A defendant was accused of a tobacco smuggling offence and pleaded guilty in 2007. A community sentence was imposed, and application was made for a confiscation order. His liability to a confiscation order depended on his having evaded payment of duty which he was personally liable to pay. To show that he was liable, the prosecution relied on some 1992 regulations. The trial judge was satisfied that he was liable, and ordered him to pay £66,120 or serve twenty months in prison if he did not. He appealed. The appeal came before three senior judges in the Court of Appeal, who heard argument and announced that they would give their judgment later in writing. They concluded that the defendant was liable to pay the duty under the 1992 regulations, and circulated a draft judgment upholding the confiscation order. On the eve of formally delivering judgment, however, they learned that the 1992 regulations no longer applied to tobacco products, as a result of different regulations made in 2001. Neither the trial judge, nor the prosecutor, nor defending counsel, nor the judges in the Court of Appeal knew of these later regulations, and they were not at fault. As Lord Justice Toulson said, giving judgment allowing the appeal: there is no comprehensive statute law database with hyperlinks which would enable an intelligent person, by using a search engine, to find out all the legislation on a particular topic. This means that the courts are in many cases unable to discover what the law is, or was at the date with which the court is concerned, and are entirely dependent on the parties for being able to inform them what were the relevant statutory provisions which the court has to apply. This lamentable state of affairs has been raised by responsible bodies on many occasions …15 Reporting and commenting on this case in the Guardian, Marcel Berlins suggested that the age-old maxim might have to be revised: ignorance of the law is no excuse, unless there is no way of finding out what the law is.16 This was plainly written in jest. But in 1988 and again in 1995 the Italian Constitutional Court ruled that ignorance of the law may constitute an excuse for the citizen when the formulation of the law is such as to lead to obscure and contradictory results.17 It must be questioned whether the current volume and style of legislation are well suited to serve the rule of law even if it is accepted, as it must be, that the subject matter of much legislation is inevitably very complex. Judge-made law The judges are quite ready to criticize the obscurity and complexity of legislation. But those who live in glass houses are ill-advised to throw stones. The length, elaboration and prolixity of some common law judgments (not just here but in other countries such as the United States, Canada, Australia and New Zealand) can in themselves have the effect of making the law to some extent inaccessible. Most cases decided by judges in court raise issues of fact but no issue of what the law is. Typical is the case where two motorists collide on a of what the law is. Typical is the case where two motorists collide on a stretch of straight road and each accuses the other of driving on the wrong side of the road. The judge must do his or her best to decide where the truth lies, and is scarcely allowed to say ‘Don’t know’, although the outcome may be that both drivers are held equally to blame. In such a case the facts are all-important, and may be hard to decide. The judge must give a judgment outlining the decision reached. But it is unlikely that any question of law will have to be decided. Often, however, a trial judge sitting alone at first instance will have to decide a question of law, and this is almost always so where a case comes before a Divisional Court (usually of two judges), a Court of Appeal (usually of three judges), or the House of Lords (usually a committee of five judges, but occasionally seven and exceptionally nine). All of these judges may give separate judgments, not saying exactly the same thing (or there would be no point in saying it) and sometimes disagreeing with each other. It is here that the problems of length, prolixity and elaboration – leading to inaccessibility – can arise. The problem can be illustrated by reference to a question which the House of Lords has recently addressed on three separate occasions in the space of three years.18 The question was whether, when a local authority seeks possession of premises which a person has occupied as his home, but which under our law applicable to tenancies and caravan sites he has no right to continue to occupy (because his tenancy has expired or he has been given notice to quit), he can seek to resist eviction by relying on the right to respect for his home protected by Article 8 of the European Convention on Human Rights, given effect here by the Human Rights Act 1998, as discussed in Chapter 7 below. The detached observer might suppose that the answer to the question would be ‘yes’ or ‘no’ or ‘sometimes’, and, if ‘sometimes’, would expect guidance to be given on when Article 8 could be relied on and when it could not. In the event, answering this question has provoked marked differences of opinion between the Court of Appeal and the House of Lords, and between the members of the House of Lords themselves. In the House alone, the question has been addressed in fifteen separate reasoned judgments running to more than 500 paragraphs and more than 180 pages of printed law report. Even after this immense outpouring of effort it may be doubted whether the relevant law is entirely clear, or for that matter finally settled. When the last of these three cases was before the Court of Appeal, that court, having struggled to give loyal effect to what the majority in the House of Lords had up to then decided (and, as the House was later to hold, reached the wrong answer), made a plea for a single judgment setting out the ruling of the majority. This would allow those who disagreed to say so and give their reasons for doing so, but (it was thought) give clearer and more intelligible guidance to lower courts on the law to be applied. This is part of a wider debate on the form in which judgments can best be given, on which practice varies widely. In continental Europe the tradition is that the court speaks with a single authoritative voice, no dissent is permitted, and (notably in France) judgments are expressed very briefly, with minimal reasoning. Even in our own country the practice varies. Thus in the Court of Appeal (Criminal Division) there must be a single judgment, except where the presiding judge states that in his opinion the question is one of law on which it is convenient that separate judgments should be pronounced by members of the court,19 a course which is never in practice adopted. So if one member of the court disagrees with the others, he or she must swallow any misgivings. This was for many years the practice in the Judicial Committee of the Privy Council, hearing appeals from the Empire and later the Commonwealth, the Isle of Man and the Channel Islands, although members who disagreed could record their dissent in a register which was never seen by anyone. Perhaps this salved their consciences. By contrast, in the civil appellate courts and in the House of Lords when hearing criminal appeals, the tradition has always been that any judge who wished to deliver a separate opinion could do so, and any judge who disagreed with his colleagues could say so. Despite this, the practice of the Court of Appeal has increasingly been to give a single judgment of the court in civil cases (it has been estimated20 that almost one in three judgments nowadays is so given), and in recent years the House of Lords has on some occasions given a single considered opinion of the appellate committee.21 Those who favour multiple judgments and freedom to dissent do so