Mrs Thatcher, we need you now ......
Some of you may wonder why lawyers are so concerned with The Rule of Law. The simple answer is that it is the bedrock of our democracy. Endanger it and you endanger democracy itself.
The present crisis over The Rule of Law has arisen with the Government's publication of The Internal Market Bill. This Bill will lead to a breach of the Withdrawal Agreement with The EU, which is a legally binding international treaty. Former Conservative Prime Minister, Sir John Major, has warned, 'If we lose our reputation for honouring the promises we make, we will have lost something beyond price that may never be regained'.
The key section of The Bill is clause 45, and the beginning of section 1: 'The following have effect notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent...'
Those opposing the Bill is not some cabal of (in The Home Secretary's phrase) 'activist lawyers', but simply lawyers. One of whom was the backbench Tory former Minister, Sir Bob Neill, who also happens to be a Bencher of The Middle Temple. It was Sir Bob who raised the question that received the staggering reply from The Secretary of State that the Government was intending to break international law, but only a little bit !
Mrs Thatcher knew all about the constitution, whatever you may feel about her politics:-
1. 'You cannot have freedom without the Rule of Law. If you don't have it, what you tend to get is corruption, and that is death to freedom, it's death to truth, it's death to honour, it's death to democracy'. Completely correct, and in her inimitable way hard hitting in simple language.
2. 'Britain does not break treaties. It would be bad for Britain, bad for our relations with the rest of the world and bad for any future treaty on trade we may need to make.' I wonder if anyone has drawn the Prime Minister's attention to this statement, made by Mrs Thatcher in 1975 to The Conservative Group for Europe as they campaigned in the EU referendum, as indeed she did, to remain.
This Bill is only the last in a line of comments and actions by the present Government and its Ministers which undermine the Rule of Law. In fact the current Lord Chancellor has set up a Commission to challenge the Rule of Law. The intention is to bar judges from so-called political decisions. Such an approach and view has not been articulated in Britain since the execution of Charles I in 1649. In the 1630s, Charles I sought to rule without Parliament believing in the doctrine of The Divine Right of Kings. Potter in his book, 'Law, Liberty and The Constitution'; writes, 'God made kings. Kings made the law. What they made they could interpret, and what they made they could change. The law did not instil justice into monarchs - they were the source of justice, and had an acutely divine inspired sense of justice'.
Parliament fought a civil war to oust such views, but eventually found themselves back at square one with an hereditary king in all but name, Oliver Cromwell. We again turned away from authoritarianism and Charles II returned, eschewing, at least publicly, the views of his father. On his death in 1683 he was succeeded by his brother James II, who sought to turn the clock back to the 1630s and absolutist rule. By 1688 James was forced into exile, and William III became king and with him came The Bill of Rights. The King was now not supreme. We, or at least Parliament, had won. From 1688 onwards our largely unwritten constitution has changed to meet new circumstances but until now the Rule of Law and the presence of an independent Judiciary has never been called into question.
Since the two World Wars of the last century, the power of The Prime Minister has grown. It began in wartime with first Lloyd George and then Churchill. In the latter part of the 20th century it took hold in the peacetime administrations of Thatcher and Blair. Many viewed this as a part of the normal evolution of our constitutional practices. But, the actions of the present Government go far beyond this, and as Mrs Thatcher said so long ago it puts democracy itself at risk.
The good news is that The House of Commons does not agree, anything like unanimously, with the direction of the Government's travel. Opposition MPs oppose, as you might expect, but Tory MPs also oppose (how many we shall discover). Former Tory Ministers, particularly David Gauke, a former Lord Chancellor, have been vocal in their opposition. And then, of course, there is the mercurial House of Lords to be dealt with if the Bill is to make it on to the Statute Book.
So, finally, The Rule of Law itself. What does the phrase actually mean? The Secretary General of The United Nations' definition is this: 'The rule of law is a principal of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards'. Potter, cited above, writes, '.. the law is vital, in both senses of the word. Essential to English society is the rule of law. It rums through the national story as veins through a body. It has proved both robust and adaptable.'
We are today again faced with that old 17th century question of
REX LEX v LEX REX. (The King is Law v The Law is King). On the answer to that decision rests our liberty, now as then.