Tom Bingham and the Transformation of the Law (original) (raw)
Abstract
AI
This collection of essays pays tribute to Lord Tom Bingham's extensive contributions to law and legal philosophy. The essays explore various themes including the rule of law, the independence of the judiciary, human rights, and the evolution of the UK constitution. Contributions range from analyses of Bingham's influence on domestic and international law to reflections on his legacy in promoting the principles of justice and equality.
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AND THE QUESTION OFJUDICIAL REVIEW IN INTER-WAR AND POSTWAR ENGLAND' I Introduction: The 'problem of reconciling' John Willis's 1933 classic, The Parliamentary Powers of the English Government Departments, is essential reading to any historian interested in the debates over legislative delegation and administrative justice in inter-war England.' The book's immediate purpose was to respond to the assertions made by Lord Hewart, the Lord Chief Justice of England, in his notorious polemic, The New Despotism, published in 1929.2 Hewart argued, very much in a Diceyan vein, that the emergent administrative state was a perversion of the most venerable principles of the English constitution, notably parliamentary sovereignty and the 'Rule of Law' as enforced by the ordinary common law courts. Hewart asserted that, particularly during and after World War I, Parliament was using its undisputed sovereignty to make wholesale shifts of legislative authority outside the parliamentary realm and then, through a variety of statutory mechanisms, to deprive the ordinary courts of their rightful jurisdiction over the lawful exercise of that authority. The effect was to undermine the rule of law that had been a cornerstone of the English constitution since the seventeenth century. In Parliamentary Powers, Willis counters that the administrative state in England has a historical pedigree and underlying normative justification of its own, one very different from the Diceyan constitutionalism of Hewart. Administrative structures did not suddenly emerge during World War I or after; rather, they were the product of '[a] long period of imperceptible growth' in the nineteenth century, which was followed in the early twentieth century by 'a quickening to meet the needs of the new Social State' and then by 'a sudden flowering during the War, and after the War the full fruition.... ' 3 The method that Parliament 'invariably * Associate Professor of Law, University of Connecticut School of Law. t I want to thank all the participants of the Willis Conference at the University of Toronto Faculty of Law for two days of excellent discussion about the modern administrative stateits past, present, and future. It was a worthy tribute toJohn Willis.
The rule of law ‘remains contested across time and geography’ , so much so that it is, in some circles, held nothing more than ‘a bit of ruling class chatter’ or a ‘hurrah word’ . Nevertheless, in the British courts, it remains an invaluable legal tool with which to rectify the improprieties of the other constitutional foundation: the doctrine of parliamentary sovereignty. Despite the contested nature of the rule of law, it is obvious that the courts recognise a multifaceted version of the principle. There is further plausibility in asserting that they succeed in upholding this principle. However, on closer inspection and as this paper shall argue, the more compelling arguments are those which hold that, when success occurs, it is ultimately of little value; the courts are ultimately in service of Parliament and not the rule of law.
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