The government has a tricky balance to strike on the rule of law
4 min read
Are we ruled by lawyers or politicians? This government’s absolute commitment to the ‘Rule of Law’ means that some are asking this question.
It would be less problematic if the Rule of Law were defined ‘thinly’ by reference to its universally accepted core principles, ie. that the law should be certain and accessible, applied equally and governed by laws administered by an independent judiciary.
However, the attorney general has argued for a ‘thick’ definition encompassing not just universally accepted core elements as above, but also human rights, democracy and international law.
This is not some dry, esoteric debate among lawyers. It will have a major impact on government decision-making for issues that affect us all, human rights having been interpreted by the courts in ways that permeate every aspect of our lives. As we have learned from recent press reports, it may even affect what ministers can say in parliament about court judgments they disagree with.
These different interpretations of the Rule of Law were debated on 26 November 2024 in the House of Lords (columns 619-679). The shadow attorney general, advocating a ‘thin’ conception of the Rule of Law, gave as an example a society which restricts by law freedom of movement or speech. He argued that such a society adhered just as closely to the Rule of Law as a society that did not impose such restrictions. The attorney general, by contrast, drew on an analogy with apartheid in South Africa where laws passed by parliament were clear and adjudicated upon by an independent judiciary. But it was not a country that operated according to the Rule of Law. It was rule by law which breached human rights, democracy and international law.
The reader can choose between the two views, but a couple of observations to make.
First, adopting the ‘thick’ approach to the Rule of Law sets an ambitious yardstick against which the government will be measured. In declaring that a broad view of the Rule of Law will serve as the ‘lodestar’ in how they approach legislation and policy, they will be held to account politically for any failures to deliver it. As Sir Humphrey might have said, it is a ‘courageous’ move, because there is a multitude of policy areas where it will be tested, for example: the backlog of cases in family, civil and criminal law, especially rape trials, and the shortage of judges; the drop in legal aid for social welfare disputes involving things like housing, debt, benefits, and employment law; the increase in the powers of ministers to make secondary legislation, including Henry VIII powers; and the lack of prison places.
Secondly, some argue that the government’s approach to the Rule of Law means that the government is being legally too risk-averse on issues like the Chagos Islands, the banning of arms sales to Israel, the Benjamin Netanyahu arrest warrant and compensation to Gerry Adams. It is rule by lawyers and not elected politicians. The answer to this is that a ‘thick’ interpretation of the Rule of Law does not, or at least should not, inevitably lead to rule by lawyers. There is usually room for more than one interpretation of public law risks. It is therefore possible to drive up legal standards while still allowing a legal risk to be taken where the law may be uncertain. As the attorney general said in his 2024 Bingham Lecture, it is not about having to choose between parliamentary democracy or fundamental rights.
There is undoubtedly a balance to be struck here, and the government will, rightly, be constantly challenged on whether they have got the balance right. Whatever the answer, the government should be applauded for the intention. It is vital for the public at large and our international counterparts to be aware of the government’s all-embracing commitment to the Rule of Law since it is the principle upon which Britain’s democracy is based and our international reputation is judged. The perception that it has been allowed to slide has not helped domestically or beyond. Wherever the line lies in individual cases, the message itself is of paramount importance.
Lord Carter of Haslemere is a consultant in the public law team of Kingsley Napley LLP and a former General Counsel at 10 Downing Street.
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