Among many authorities quoted by Bingham on the malign stupidity of
infringing civil liberties in the name of the “war on terror”, the 1987
remarks of Supreme Court Justice William Brennan strike home with
particular force: “After each perceived security crisis ended, the
United States has remorsefully realised that the abrogation of civil
liberties was unnecessary. But it has proven unable to prevent itself
from repeating the error when the next crisis comes along.”
Those who fail to remember the past are condemned to repeat it… and so we have demonstrated the truth of this observation in the post-9/11 age. (I was trying to make this point last week.)
Sumption makes a similar point;
Within a year of the [European] Convention coming into force, the destruction of
the World Trade Center, followed later by controversial wars in
Afghanistan and Iraq, inaugurated a period of highly authoritarian
legislation, abrogating rights which had been taken for granted for
centuries. As is the way with powers conferred on officials and
policemen, they tended to be exercised 150 per cent.
To those of us with concerns about leaping from the frying pan of government dictatorship and into the fire of the rule of krytocracy, he has this observation to balance that, too;
Tom Bingham is best known for his vindication of human rights and the
rule of law against the excesses of legislative and governmental action.
Yet, the interesting thing about this very English judicial figure is
that he has never been an instinctive opponent of executive power. His
views about the relations between the state and the citizen were
conceived in the long tradition of judicial pragmatism. One of the
consistent themes of his judgments is the legitimacy of the state’s
traditional role in protecting the interests of its citizens, provided
that its acts are rational and proportionate. Like the other outstanding
judicial figure of the passing generation, Lord Hoffmann, he has shown a
great deal more understanding than some of the more activist judges of
the proper place of the judiciary, the legitimate domain of political
decision-making, and the constitutional role of ministers in a democracy
who are answerable (unlike judges) to Parliament and ultimately the
We ought to remember this as we push our Government to restore our historic liberties and freedoms – the last thing we would want, if successful in restoring proper limits to governmental power, is domination by unaccountable judges instead.
Feel free to post links to further reviews in the comments along with your own thoughts on the book and the questions it raises.
By Alex Deane