Book review: Tom Bingham’s The Rule of Law

Tom Bingham’s The Rule of Law is a lively and enjoyable short book on a much misunderstood but relied-upon subject.

My quick guide to the Rule of Law was inspired by Hayek’s The Constitution of Liberty. Perhaps in being contemporary, Bingham reflects the growth of state power since Hayek’s book was published in 1960: he seems somewhat more flexible.

Nevertheless, on pages 41 and 42, Bingham relates the story of the man who pleaded guilty to offences relating to tobacco smuggling under 1992 regulations.  After trial and appeal, he was found liable to a confiscation order but, on the eve of formally delivering the verdict, the appeal judges learned that the regulations on which the prosecution had relied no longer applied thanks to later regulations:

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.

Apparently a Guardian journalist revised an old maxim, saying, “ignorance of the law is no excuse, unless there is no way of finding out what the law is”.

This seems to me a pitiful state of affairs in an ostensibly free country, but one which no one is likely to campaign about until he or she finds themselves unjustly charged, tried or convicted. It’s surely the task of legislators to rectify legislation but, as I reported before, contemporary legislation, especially secondary legislation, often passes essentially without scrutiny. We’re all diverted to matters of more obvious headline concern to our constituents, such as the NHS failing to answer to the people who pay for it.

Bingham’s book is excellent, mainly because it makes accessible to the interested layman the reality that the law and the state have grown like topsy in our country. Very substantial reform is required of both the law and Parliament but not in the direction the Government proposes this week: yet more elected politicians are likely to produce yet more headline-grabbing legislation. Some other path is surely better and a good place to begin thinking about it is probably Bingham’s book. I thoroughly recommend it.

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