James Harper

Yes, Boris is breaching the rule of law. Here’s why

Yes, Boris is breaching the rule of law. Here's why
Boris Johnson meets with Irish Taoiseach Micheál Martin at Hillsborough Castle in Northern Ireland. (Photo by Pippa Fowles/No. 10)
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In an article published on 10 September, David Wolfson QC argued that the government’s actions around the Internal Markets Bill do not breach the rule of law.

Sadly, while I wish this were true, I do not concur. From the moment Brandon Lewis stood in parliament and openly admitted the government’s plans breached international law, albeit in a 'limited and specific' manner (and there can be no question that this was in error), the government has been acting in a way which does not accord with the philosophy embodied by the expression 'rule of law'.

At its heart, the rule of law is the concept that all are equal under the law — in other words, the law applies to everyone, in the same way, no matter who you are. The origins of this principle date back far into history — around 1760 B.C. to be specific and the Code of Hammurabi, one of the first examples of the codification of law, applying to the acts of the ruler as well as the people.

There are other elements to the rule of law (and you can read our definition here) but, for these purposes, the key point is that the government cannot place itself above the law that applies to everyone else. To be fair, Mr Wolfson and I seem to be in agreement on this, and on the point 'upholding the rule of law is a fundamental principle of sound government'.

But here is where our opinions diverge.

It is vitally important to distinguish between the rule of law and rule by law. The latter describes a situation where you have laws and those laws are intended to govern. It is entirely possible to have a system where you are ruled by laws, but where the rule of law is absent.

Nazi Germany serves as a good example from history (as ever). Many laws were made, promulgated, and then administered by a judiciary. There is no doubt that the law existed and that it governed. However, no one could dispute that there was a clear absence of the rule of law.

China provides another example. Laws are ‘administered’ (i.e. interpreted) by the government minister who issues them. That minister decides whether the law has been complied with in a given situation, subject to no authority other than their own decision. Again, the law exists and governs — rule by law — but there is no equality of law and, therefore, no rule of law.

Mr Wolfson’s article is correct to an extent: the government has not breached any specific law so far — as he says, the mere act of laying a bill before parliament cannot be a breach.

However, adherence to the rule of law as a concept requires certain behaviours that cannot be avoided by simply pointing to the absence of broken law. One must act in line with its spirit. To borrow from criminal law, the test is less about the actus reus — the guilty act — than it is about the mens rea or the guilty mind.

The point at which you set out on a course of action placing you above the law, or advocate a belief that it is acceptable to break the law (something no citizen can unilaterally do and hope to escape punishment), is the point at which you have abandoned the rule of law as a guiding principle.

There are some who do not believe the Internal Markets Bill breaks the law. There are others who say that, while it does, the law will only be broken when the powers are exercised (a 'last resort'), and that this would be the EU’s fault anyway. Others still believe this is all just posturing: taking a position so extreme that it will shock the EU into altering its negotiating stance on Brexit arrangements.

Those points may well be valid, but each is utterly irrelevant. They show the same misunderstanding between the concepts of rule by law and the rule of law. The commission of the act is a sideshow — the stated intention to do so, and belief that it is acceptable, is the crux. In ‘The Laws’, Plato stated: 

Where the law is subject to some other authority and has none of its own, the collapse of the state is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise.

While I do not believe that the collapse of the state is imminent, I would submit that we are even further from a situation which might be described as 'full of promise'. To see the rule of law treated with such cavalier abandon in the mother of parliaments is a nadir to which I never thought we would sink.

Be in no doubt: whether the law itself has been breached or not, the rule of law clearly has been.

Written byJames Harper

James Harper is a director at the legal research firm LexisNexis and leads its rule of law programme.

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