A government that undermines the rule of law is a contradictionby David Allen Green / September 9, 2020 / Leave a comment
A cabinet minister has, in the House of Commons, stated expressly that the government will deliberately break the law. That is a sentence that no person interested in law or in politics would ever expect to read, and not one that even someone as cynical as me ever expected to type. But it is true.
Because it was such an extraordinary moment it takes a little effort to explain why it matters. Just as nobody expected such a sentence to exist, nobody would have been immediately able to articulate the significance of the statement. It is still sinking in.
But the effort should be made. The starting point is the heady if somewhat inexact concept of “the Rule of Law.” Put simply this means that there should be no power beyond or above the law. This meaning, however, is not an especially liberal one: many of the worst regimes in history were careful to have their preferred laws in place. Law, like bureaucracy, is attractive to the totalitarian frame of mind.
The liberal import of the Rule of Law is in another meaning: that the law applies equally to all persons. This is the meaning which, for example, the socialist historian EP Thompson treasured in his account of early modern poaching. The law bound what could be done by the powerful just as it bound the powerless. Forcing those with wealth and might to also comply with general standards is something which benefits the weak as well as the strong.
In terms of policy, the Rule of Law ensures that there has to be a lawful basis for what the government does and does not do, and that the government must comply with the law. There will, of course, be times when the law will not be clear and when it is arguable whether something is lawful or not. A government can even proceed or not proceed on extreme and sometimes unconvincing interpretations and constructions of the relevant law. A government may even just lip-serve that it is complying with the law.
But what a government cannot and should not do is deliberately seek to be in breach of the law. Many would say the reason for this is self-evident: a proposition so basic that it would be a fallacy to attempt to justify it in even more basic terms. This government, however, does not see it as self-evident.
One reason the government should not knowingly breach the law—whether it be about Brexit or another matter—is that it makes it impossible for the government, as a matter of principle, to insist on the rest of us following the law. As such that is a pragmatic justification.
As well as convenience, however, there are the fundamental matters of legitimacy and accountability. Other than in a face-to-face community, power has to be exercised through recognised and recognisable rules and commands, rather than by mere force of personality of a dominant leader. In any modern society, government is only sustainable through law. Without law there cannot be government.
And so when those who purport to govern us disregard or contravene the law, they are poisoning their own wells. As well as causing inconvenience, it undermines—indeed contradicts—the nature of government itself.
That such a breach will be “limited and specific” does not save the government. All breaches of the law are, in their way, limited and specific. That is why indictments and claim forms are particularised. That a breach of the law is “limited and specific” is to say nothing more than that there is a breach of the law.
In the instant case, it is not even clear that the government needs to break the relevant provision to achieve its policy goal. There may be workarounds using other parts of the Brexit withdrawal agreement. Or the government could proceed on an extreme view of what is legal and be ready to withstand any legal challenge.
The bath water of the Rule of Law cannot easily be mopped up when spilled, whatever you want to inflict on a baby. There is a lot more that can be lost by deliberately breaking the law than can be gained. The government should proceed carefully after this remarkable announcement.
Being cavalier with the law rarely ends well for cavaliers.