We should all be legal purists

Few things are more sinister than a government that does not take seriously its legal obligations

June 11, 2021
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Frost deployed the term in a criticism of the EU. PA Images / Alamy Stock Photo

The phrase of the week in law and politics is “legal purism.” David Frost accused the European Commission of being “legal purists” when it came to the United Kingdom’s obligations under the Northern Ireland Protocol, and a viral tweet claimed (almost certainly inaccurately) that Michael Gove called the High Court “purist” in finding the award of a contract to a company run by friends of Dominic Cummings to be tainted by apparent bias and hence unlawful.

There is, however, nothing wrong with legal purism. The obligation of governments to comply with the law is fundamental in a democratic society. The law sets out the instructions that we, through parliament, have given our governments. If a government treats those rules as nothing but guidance, or ignores them completely, then we are no longer living in a democracy and there is no rule of law. 

At an international level, if the government treats obligations it has entered into as no more than optional guidance, then that damages the UK’s international standing and makes it less likely to be trusted in future (and without trust, it is hard to negotiate any important international agreement).

At both domestic and international levels, it matters whether a government takes rules seriously: if legal purism means that, then we should all be legal purists. And since the job of a court is to interpret and apply the law, legal purism is effectively a job description for any judge.

What those who complain about legal purism sometimes mean, however, is that rules are being interpreted in a way that makes no practical sense. Or they may mean that rules are being interpreted too cautiously. There, they have a point. In general terms, the fact that a particular interpretation of a rule leads to silly or problematic results is usually a good argument against that interpretation (“the drafter could not have intended that result”). And if rules really can’t be interpreted so as to make sense, then they should be changed: something that the government is usually in a good position to do.

As for over-cautious interpretation, governments are not required to—and indeed should not—take a narrow and circumscribed view of what they can do: governments are perfectly entitled to seek to advance that view of the law (provided it is at least arguable) that serves the policy objectives that they have, even if they are at risk of being told by the courts that their view is wrong. Indeed, a government that never lost a case would likely be proceeding on far too cautious a view of legal risk.

So it is fine for governments to seek to interpret the rules that bind them in ways that make sense and which suit their policy objectives, until a court tells them they are wrong. But it is quite another issue for governments to take compliance with those rules as anything less than a matter of great seriousness and to accuse those who expect them to stick to those rules of legal purism. The former is right and proper: the latter is dangerous and sinister.