When our paralegal Alice Payne qualified as a solicitor in October 2023, we needed to induct her into the strict requirements of our profession’s Codes of Conduct.
These rules include 7 overarching ‘Principles’ - the “fundamental tenets” of the ethical behaviour required of us – with the first being to uphold “the constitutional principle of the rule of law”. When she and I discussed the meaning and significance of this concept, we began to see how frequently it is referenced in the political sphere and yet, how low it seems to resonate as a priority with the public at large.
Just last week, Ken Clarke speaking in the House of Lords, called on it in support of his position:
“[in] an unwritten constitution [..] it gets more and more important that … the powers in this country are controlled by some constitutional limits and are subject to the rule of law”.
And here, he gets to the heart of the matter; the rule of law is about how an effective democracy maintains checks (or ‘controls’) on executive power. In this critical year for democracy with both UK and US elections, we explore what the rule of law is, how it impacts on us as individuals and as a society and how we see it undermined across the world (and not just in the ‘usual’ places). Deep Roots
The rule of law has its roots in the Magna Carta of 1215, the first document to limit the power of the King and his government. It established key democratic principles:
equality before the law
protection of fundamental rights and individual freedoms
supremacy of law over arbitrary power.
In other words, no one is above the law.
Intwined closely with the rule of law is the concept of Separation of Powers: Government, Parliament and the Courts need to operate independently and within their own powers to ensure an accountable and just legal system and to avoid power being concentrated in a single entity.
An independent judiciary is fundamental for ensuring that the actions and decisions of even the most powerful in the land are subject to scrutiny, judgement and ultimately, to being overturned (via Judicial Review).
Erosion of the Rule of Law
It is ironic then that judges in the UK have, over the past few years, been branded in parts of the print media as “Enemies of the People”. The absence of timely and convincing Ministerial objection to this vilification of the judiciary was widely criticised as a failure to uphold the UK’s democratic principles.
Since this Brexit-related headline in 2016, it seems that a tide of populist election victories – starting with Trump in 2017 – accelerated the erosion of the rule of law. An article by the International Bar Association suggested that “undermining the rule of law has become a go-to strategy for populist leaders” and we have seen clear examples of this in Poland, Brazil, Hungary and most recently, Argentina. The far-right former TV pundit, Javier Milei, who recently became Argentina’s President campaigned with a literal chainsaw to demonstrate his commitment to destroying the machinery of State. Hungary continues to have funds frozen by the EU on account of Orban’s “backsliding on democratic norms” that include political interference with its judiciary.
And it is perhaps a sign of just how far we’ve moved away from a consensus on democratic fundamentals when it was Margaret Thatcher who said, “The legal system we have and the rule of law are far more responsible for our traditional liberties than any system of one man one vote….”.
What's at Stake?
Months before the US Election of 2020, Donald Trump repeatedly cast doubt on the validity of the country’s voting systems. He also implied that if he lost, he might not accept the result. When he did lose the election, he had already laid the groundwork to further undermine the US’s democratic systems and controls. On 6 January 2021, the world saw how his rhetoric stoked something significantly more violent and dangerous with the attacks on Capitol Hill. Trump has continued to attack the systems of government including election workers, the police, the FBI, elected officials and the judiciary.
When public systems and public servants are continually denigrated and dismissed as pointless “bureaucracy” and “red tape” or worse, “biased” and/or “corrupt” (without evidence), it is easy to see how some people might be energised and enthused by leaders promising to tear up the rule book.
Yet, just this week, judges in the US ruled that Trump was an “ordinary citizen” and not exempt (by virtue of having been President at the relevant time) from prosecution for his role in seeking to overturn the election:
“We cannot accept … that a President has unbounded authority to commit crimes that would neutralise the most fundamental check on executive power….[his] stance would collapse our system of separated powers….We cannot accept that the office of Presidency places its former occupants above the law….”.
Judges have stepped in to protect the US’s democracy in accordance with rule of law principles, but we wait to see how the Supreme Court rules in the appeal. Let’s not forget that the highest US Court is made up of political appointees, 3 of whom were appointed by Trump himself.
Losing trust and confidence in the visible aspects of public service is one way of encouraging people to lose trust in its invisible components – such as its constitutional underpinnings. In 2022, a US survey found that 40% of Americans thought that having a “strong leader” was more important than a democracy.
The actions of Presidents and politicians can seem very far removed from our own lives; perhaps then we fail to see how the rule of law (and its erosion) shows up in our daily lives. But there is arguably a trickle-down effect. When those in positions of power assert versions of “the law is an ass” enough times, it gives licence to others. At the end of last year, we saw how parts of the media, politicians and public commended or sympathised with “activists” who destroyed ULEZ cameras installed by the (democratically elected) Greater London Authority. Interestingly, many adopted a different approach to climate “activists” blocking traffic with some calling for custodial sentences. But calling on the law when it suits and ignoring it when it doesn’t is a dangerous path to go down.
But for an illustration of how individual freedoms and rights can be denied and destroyed when checks and balances aren’t in place, we need look no further than the Post Office Horizon scandal. The Post Office’s power to bypass ‘normal’ State criminal systems (i.e. the Police and CPS) and instead, act as its own investigator and prosecutor played a large part in it successfully prosecuting c. 900 innocent people over the course of 15+ years.
Ironically though, Parliamentary legislation to exonerate these people overrides – albeit for good reason - our constitutional principles; under the separation of powers, only Courts can determine a person’s guilt. One of the reasons for this lesser of two evils approach is said to be due to the inability of our judicial system to process the hundreds of Sub-Postmaster and Mistress appeals in any kind of appropriate timeframe. On this, the Law Society points to the poor state of our justice system - the lack of judges, Court staff, criminal lawyers and case backlogs. An inadequate justice system is itself a rule of law issue; ordinary people with cases hanging over them (as victims or alleged perpetrators) should have judicial systems that operate fairly and efficiently.
Lawyers may be formally tasked with a duty to uphold the rule of law but it’s clear that there is a need for everyone to recognise and protect it.
The rule of law is designed to protect us all as ordinary citizens. If we don’t defend it, we risk losing the rights and mechanisms by which to defend ourselves.
So, in her first year as a newly qualified solicitor and mindful of her duty to uphold the rule of law, Alice Payne will be actively considering and finding examples that raise awareness of this issue – the good, the bad and the ugly. Watch this space for her “Rule of Law in ‘24” pieces throughout the year.