THE RULE OF LAW (AND THE IRAQ WAR, AGAIN, AGAIN .....)

If you haven't read the Rule of Law by the English judge Thomas Bingham, then I highly recommend that you do.

Lord Bingham of Cornhill, to give him his full name, was the first person ever to hold the three offices of Master of the Rolls (head of the civil division of the Court of Appeal), Lord Chief Justice (head of the criminal division of the Court of Appeal) and Senior Law Lord (head of the court of final appeal). In the last job, he was the first to be appointed as such from the start, instead of - as the title suggests - being promoted on seniority. He ran the Appellate Committee of the House of Lords, its formal title, for most of the noughties, until he retired in 2008.

In a short book, Lord Bingham teases out the practical meaning of what is often a platitudinous phrase beloved of politicians. He then goes on to consider its effect in two practical situations; the possible conflict with the uniquely British concept of the Sovereignty of Parliament, and the difficulties of maintaining the rule of law in the face of international terrorism and in the absence of a world government or court system. He had to deal with both of these issues when in the House of Lords, and his measured judgments in key cases dealing with the legality of the Parliament Act, the use of control orders, and the admissibility of evidence obtained under torture, repay careful reading. He also saw, much earlier than most, the effect that the Human Rights Act would have on the development of English law.

Along the way, he leaves the reader in no doubt whatsoever that he believes that the Iraq War was illegal. This is relevant, since at the time of the invasion, he was the United Kingdom's most senior judge. The decision to go to war was taken by the House of Commons; and so, under the concept of the Sovereignty of Parliament, cannot be challenged in the domestic courts. Nevetheless, the decision was made on the recommendation of the Cabinet, following formal legal advice submitted by the Attorney General (the Government's in-house lawyer). We now know that Lord Goldsmith changed his mind on the issue, and went against the views of other Government lawyers, notably those in the Foreign Office. Lord Bingham has now made it clear in public, that if his court had been asked to rule on the point, then he at least would have said no.

The Iraq Inquiry, having taken a time-out during the election campaign, is now back in business. One of its peculiarities, given the seriousness of the issues involved, is that none of its five members is a lawyer. One can't help feeling that if Lord Bingham had been appointed to the inquiry team, then Lord Goldsmith - and even Tony Blair - would have had a much more uncomfortable ride in giving evidence than they did. If the committee members haven't yet read the Rule of Law, then the secretariat should quickly make it required reading.

Walter Blotscher