12th October 2021
Yesterday many celebrities of legal Twitter were engaged in a detailed discussion about whether the government of the United Kingdom was really threatening ‘the rule of law’.
(Celebrity in legal Twitter is akin to what Jasper Carrott once said of the disc jokey Ed Doolan: world-famous in Birmingham.)
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The discussion was prompted by this thought-provoking tweet and thread from @SpinningHugo:
https://twitter.com/SpinningHugo/status/1447447283570774017
The proposition is as follows: (a) nobody disputes that the United Kingdom breaking international law is a bad thing; (b) but the reason it is a bad thing is not because it offends the ‘rule of law’.
The proposition contains a clever and subtle distinction, and the tweeter (who I do not know personally) puts it forward with characteristic charm and the confidence that is an endearing quality of their Twitter account.
But I fear it is not entirely correct.
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What is correct is that the phrase ‘the rule of law’ can be deployed almost unthinkingly.
And the notion of a thing offending ‘the rule of law’ can also be too easily adopted.
Not every unlawful action by a government is an assault on the ‘the rule of law’.
A government can commit a tort or some other civil wrong; a public authority may act outside of its powers; and agents of the state can commit criminal offences.
That in each instance the courts are capable of holding the relevant entity or individual to account is an example of the rule of law working, rather than it being subverted.
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What is also correct is that ‘international law’ is not like other sorts of law.
For example, much of it exists without any practical means of enforcement or even adjudication.
At law school, I heard an eminent professor describe international law as ‘a fiction’.
There is a saying that domestic law is a matter of law, foreign law is a matter of fact, and international law is a matter of fantasy.
And there is another saying that if a rule is not capable of enforcement then it is not really a ‘law’.
If these sayings have any purchase, then an assertion that there has been breach of international law may perhaps have a political or normative meaning, but it does not necessarily have much legal meaning.
And so a breach of international law by a nation state is not by itself enough to say that the very principle of ‘the rule of law’ – which is attached to all law, domestic and international – is being attacked.
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And, for completeness, ‘the rule of law’ is not always necessarily a good thing.
Many evil things – from slavery to torture – can be placed on a legal basis, and compliance with such laws is not a good thing.
To the extent that we should care about the principle ‘the rule of law’ then other principles are at least as important, such as equality, due process, accountability, democracy, legitimacy, the separation of powers, universal human rights, and so on.
The rule of law, and nothing else, can sometimes be indistinguishable from tyranny.
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But.
I think @SpinningHugo makes two errors.
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The first error is to suggest (by implication) that the breach of international law by the United Kingdom is not capable of being an attack on the principle of ‘the rule of law’.
There are breaches, and there are breaches.
And some breaches can be trivial or substantial examples of non-compliance, and some breaches can be intended or designed to undermine systems (if they exist) of enforcement and adjudication, and may also create a moral hazard that discredits the legal regime more generally.
Such breaches not only mean a rule has been broken, but that the very rules themselves are placed into peril.
In essence: some breaches of international law are also demonstrations that a state actor simply does not believe that legal rules apply to them.
And as ‘the rule of law’ – if it means anything – means that all are subject to the law, then – logically – such an act of open disavowal can only violate that principle.
In essence: any state actor is capable of breaching international law in a manner that undermines the general principle that the law should be obeyed.
Even the United Kingdom.
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The second error is to aver that the recent (and ongoing) post-Brexit conduct of the United Kingdom is not itself a threat to ‘the rule of law’.
(So not only is the United Kingdom capable of breaking international law here in a way that is a threat to the rule of law, but that it is actually doing so.)
The United Kingdom government last year sought to legislate so as to deliberately breach obligations it had entered into under the Northern Irish protocol.
The protocol provides legal obligations on the United Kingdom (and the European Union):
(a) that were freely entered into,
(b) that are capable of enforcement and adjudication through an agreed formal process; and
(c) which have been placed into domestic law by statute.
The Northern Irish protocol is therefore, by any meaningful definition, ‘law’.
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Last year the United Kingdom government was not about to breach the Northern Irish protocol by accident or through recklessness, or on the basis of a grey area of interpretation.
The United Kingdom government intended to breach the the Northern Irish protocol – by deliberately using domestic legislation.
This was, in essence, the United Kingdom government asserting that a legal obligation did not bind it.
Since that threatened (but withdrawn) threat the government has not been so blatant in its commitment to law-breaking.
Yet it is still seeking ways for it to avoid or ignore a legal commitment it entered into, on the basis of a belief that some legal commitments do not apply to the United Kingdom.
This instance of subversive intent, if translated into solid political action, is a threat to ‘the rule of law’.
It is not just that the United Kingdom government will break a legal commitment.
It is also not just that the United Kingdom government does not care that it will break a legal commitment.
It is because the United Kingdom government is intending to break a legal commitment on the basis that it does not believe that it should be bound by that legal commitment.
For such a move not only is a breach of a particular rule, but a fundamental repudiation of the general principle that a legal command should be obeyed.
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Perhaps some may say that some legal commands should not be obeyed.
But we should not fool ourselves into thinking that such disobedience is not a breach of ‘the rule of law’.
It is a breach of ‘the rule of law’ – but it is a breach that you think does not matter.
It is to assert that ‘the rule of law’ sometimes does not matter absolutely.
And that – well – is a different proposition to saying that a breach of international law cannot be a breach of ‘the rule of law’.
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I concur, David. The thread baffled me (an international lawyer), by seemingly arguing that a) the rule of law (already very thinly defined) did not apply to international law (??) and that b) the state is at best a subject of international law, not the source of its authority (??).
I declined commenting on the thread because my view of things was being expressed well by others commenting (primarily from the public law side of things, where I also roughly hail from), but it gave me great food for thought on the relationship between how sovereignty is perceived and politically deployed in the UK, and its dualist traditions. It was a welcome discussion in that regard even though, like you, I disagree with the original premise.
Thank you, I read that exchange with some concern, which you have unpacked for me.
If I may advance my own analogy: it is similar to a policeman breaking the law vs any other citizen breaking the law. If we can’t trust the police to abide by the law, the whole system is undermined. And hence why in general we treat crimes by policemen more severely.
A closer analogy would be a police officer breaking a law that signals that the police are not bound by the law
Yes, that is better. In simple terms, anything that undermines the universality of compliance with the law is a threat to the rule of law.
In the USA, at least, the system treats crimes by the police far more gently, and the system does its best to protect the police from the law.
I prefer your analogy to Spinning Hugo’s.
The whole point of international law, as I understand it, is to bind states to their promises that they enter into freely (as you point out) and provide a basis that states can work with one another on the understanding they are subject to the same rules.
If SH is accepted at face-value, then it is legally permissible for sovereign states to renege on commitments on the basis they weren’t law, but “honourable pedges”; for want of a better phrase, even though the offending party knows well they were binding themselves to something, i.e. the NI Protocol.
Seems to me that offends not only the ability to trust a sovereign state, but the rule of law too; especially where that is dependant upon cooperation.
Isn’t the government also undermining the rule of law in the UK by setting a bad example to its citizens? We keep hearing comments like “one law for them, another law for us” and similar discussions. If the government keeps breaking the law, isn’t that over time going to erode compliance with the law by the population? If the government keeps actively breaking laws (and deals it made) I fear more and more parts of the population will follow the countries leadership and take a similar approach.
It seems to me that the situation is somewhat analagous to what used to be referred to as “a gentleman’s (or lady’s) word”, a matter of honour. Boris Johnson could not be described as “a man of honour” and his “word” (pledge/promise/solenm undertaking) lasts only as long as it remains expedient. It would seem that his administration is happy to play fast and loose with the nation’s “honour” and (more importantly) reputation for short-term (domestic?) gain.
Johnson is contemptuous of the law as his blatant contempt of the High Court over the Benn Act showed. It seems that he has never seen any personal negative consequences to “the rule of law” in his own dealings and, therefore, thinks that it is OK to take a cavalier attitude to it. We are counting the days to the end of his (mis)administration which are plainly numbered, but I would be very surprised if legal gravity ever catches up with the man. As Orwell might have put it: “we are all equal before the law, but some are more equal than others”.
Thank you DAG for a very well-thought out analysis and explanation. Is there still such a thing as “malice aforethought”? And if there is, is this not what our present Administration are bent on in its breaking of international law?
I think this puts into words the vague feeling I had that the threatened (but not enacted) law breaking of the Internal Market Bill was more concerning than the actual law breaking of prorogation. The government did genuinely seem to think there were no rules about prorogation, but once told what the limits of the law were they reluctantly complied. Whereas with the IMB they knew full well that they were breaking the law but saw no reason to care about it.
Indeed.
Good reply. It does seem that the rules based international order is coming under increasing strain in light of geopolitical trends. It is important that countries that advocate for it are visible adherents to their own treaty commitments, or I fear we will soon return to a world of “might is right”
Part of this debate seems to turn on what is meant by “international law” and “rule of law”.
SpinningHugo may argue for a narrower conception of the “rule of law” than that advanced by Lord Bingham (as he then was). But even at its most narrow, “rule of law” must mean (as the OED puts it) “the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes”.
Countries are “members of a society” on an international plane that are capable of setting mutually agreed and publicly disclosed codes and processes that bind each other equally – that is, a system of laws between states – or inter-national laws.
If the UK government is suggesting that, not only can the UK with deliberation break those mutually agreed rules, but further that the UK is so special that the rules don’t apply to the UK at all, even the ones to which it has signed up to and voluntarily submitted, then that is an attack on the rule of law. At least in principle.
What is UK has been doing is acting unreliably and in bad faith. Inevitably, that means everyone else will bring longer spoons to the next supper. That is bad for everyone.
In uk law, there is the state which makes law, a system to adjudicate breaches (courts) and enforcement. Together that ensures rule of law. The government can be held accountable and punished.
International law is merely agreement between individual states; there is no superstate to make law, international courts are patchy and enforcement is not there. So there is no international rule of law.
Surely this is the distinction SH makes?
This is not to diminish the importance of international law. It is important that states behave in a rule based way. But this is surely about the dry definition of what rule of law is.
The UK and EY have agreed a detailed process for adjudication/enforcement, so this stock objection to international law does not apply. I had hoped my post had made that point.
Isn’t that an agreement between parties?
Or in other words, where is the superstate to come along with the power to enforce?
Donated to thank you for a succinct explanation of something I had not understood before (and for all the previous posts that I have found enlightening).
The comments here have offered definitions for and qualities of ‘The Rule of Law.’ Here’s one more.
Could it be said that the Rule of Law is when you abide by laws you have made for yourself?
In the domestic context, “Rule of Law” is usually cited in relation to the government acting ultra vires or illegally. Not abiding by the laws it set for itself.
This is distinct from the laws that we abide by because of the capacity of others (usually the state) to enforce compliance with a punishment. This takes in the @SpinningHugo point that murder isn’t really a Rule of Law issue.
However, when citizens disregard a letter en masse or the police fail to enforce a law consistently (or at all) then that becomes a Rule of Law issue because the polity as a whole has failed to abide by the rules it set for itself.
And of course, international law is a bunch of bilateral and multilateral treaties. These may absolutely be described as rules that we (as a country) have made for ourselves. So if the government breaks a treaty provision (inadvertently or on purpose) then the Rule of Law is definitely engaged in that situation too.