Th e View from Chancery Lane

Michael Frape Law Society Council Member for Cambridgeshire & Peterborough

Are we witnessing the beginning of the end of the Rule of Law?

Most lawyers are understandably too busy to stop and think about such lofty matters as the rule of law, let alone whether it is under threat. I would suggest however that whether this is the case is an urgent and important question for all lawyers to consider not just the so-called ‘do-gooders’ and ‘lefty lawyers’ sometimes pilloried by elements in the UK Government.

The rule of law is a broad concept which includes many principles, but it can be summarised as meaning that the law is applied equally and fairly to all citizens and that no one is above the law especially those in government and that arbitrary abuses of power are prevented. The separation of powers between the legislature, the executive and the judiciary is highly important in ensuring that the executive can be held to account either by the legislature or the judiciary.

There are many reasons why the rule of law is incredibly important, but there are in my view two fundamental reasons for that being the case. First, it is recognised as being a key ingredient in the UK’s economic success. Businesses want to do business in a country where: the rules are applied equally and fairly; the judicial system is of high quality and robustly independent; and there is a strong and independent legal profession able to advise clients on their legal position. Secondly, living in a state where the arbitrary misuse of power was permitted or laws were applied unequally and unfairly would be an abomination.

It can of course be argued that ours is the oldest democracy in the world, the court system is exemplary, the judges are independent, the law is applied equally and fairly to all including those who govern us and arbitrary misuse of power is unheard of.

All this is broadly but not completely true. It is also very definitely the case that it is dangerous to assume that the rule of law will remain sacrosanct forever. Nothing remains the same forever and that iron law applies as much to the rule of law as it does to anything else. Unless the rule of law is the subject of eternal and robust vigilance by the legal profession (amongst others), there is a significant risk of it being eroded away. And I believe that there is clear evidence that the rule of law has been under threat for several years and that the situation may worsen.

The Government’s response to that finding was to seek to change the rules against paid advocacy. Those rules have been in place since 1695 and are a cornerstone of parliamentary democracy.

In November 2016, The Daily Mail identified the Lord Chief Justice and two High Court Judges as being “Enemies of the People” (an expression often used by Stalin) when they correctly ruled that Brexit couldn’t be triggered without a vote in Parliament. Justice Secretary Liz Truss failed to defend the judiciary despite that being a key requirement of her role. In September 2019, the Supreme Court ruled unanimously that the UK Government had unlawfully prorogued Parliament. Was the Queen misled when she agreed to exercise her prerogative power to prorogue Parliament? In September 2020, the Northern Ireland Secretary, Brandon Lewis, admitted that the UK government would break the Northern Ireland Withdrawal Agreement in a “specific and a very limited way”. This led to the resignation of the Permanent Secretary to the Government Legal Department. In the same month, the Home Office published a video which attacked ‘activist lawyers’ for representing asylum seekers. The Chair of the Bar Council pointed out that lawyers should not be attacked for doing their jobs. And in November 2020, the Home Secretary Priti Patel failed to resign despite having been found guilty of bullying and therefore breaching the Ministerial Code. That caused the resignation of the government’s Independent Adviser on Standards.

There are of course other examples I could cite, including ‘Partygate’, which (at the time of writing) has caused 20 Fixed Penalty Notices to be issued against Downing Street staff for breach of Covid regulations. In my view however the worst example of there being a threat to the rule of law was the Owen Patterson scandal. The Commissioner for Independent Standards held that Owen Paterson MP (as he then was) had committed “an egregious case of paid advocacy”. The Government’s response to that finding was to seek to change the rules against paid advocacy. Those rules have been in place since 1695 and are a cornerstone of parliamentary democracy.

It has been noted by commentators that changing an inconvenient law you have broken is the act of a postSoviet kleptocracy not a parliamentary democracy. Unsurprisingly, the UK government was forced into an ignominious climb-down, but they had nevertheless attempted to subvert the rule of law by seeking to change the law retrospectively to protect one of their own.

I am sad to say there are reasonable grounds to believe that the rule of law is under threat.