Is the principle of the ‘Rule of Law’ under attack from those who should protect it?

As an undergraduate law student, one of the most important legal philosophers we studied in jurisprudence and the theory of law was the British legal philosopher Jeremy Bentham (1748-1832). Bentham is credited with creating the doctrine of utilitarianism, that at its core believes that the purpose of morality is to make life better by increasing the amount of good things and decreasing the amount of bad things in the world. This philosophy is underpinned by the belief in the principle of the ‘Rule of Law’ and in its absence there could be an increase in a lot of bad things in the world.

The principle of the ‘Rule of Law’ can be traced back to Ancient Greece and the writings of Aristotle in Politics in 350 B.C.E. In essence, the principle of the ‘Rule of Law’ is that an individual, organization or State is to be held accountable to the same set of laws.

The reason for this historical flashback is that many politicians, including several former British Prime Ministers Sir John Major, Tony Blair and Theresa May have recently been underlining the importance of following the ‘Rule of Law’. These comments have been made in the wake of UK Prime Minister Boris Johnson’s decision to abandon parts of the EU-UK Withdrawal Agreement with the European Commission by passing the UK Internal Market Bill.

Under an arrangement known as the Northern Ireland (NI) protocol, goods will not need to be checked along the Irish border if NI continues to be bound by EU rules. British PM Boris Johnson feels that this threatens the sovereignty of the UK to decide its own laws and is seeking a unilateral revision of this part of the international agreement with the EU.

The Secretary of State for Northern Ireland Brandon Lewis accepted that the proposed Bill “…will break international law” although he described this as a theoretical possibility. The concern is that the UK could turn itself into a ‘rogue state’ where its word is no longer its bond.

Aristotle appears to have considered such a situation arising in the future and asked whether it is better to be ruled by the best leader or the best laws?

There are advantages and disadvantages in both, but he concluded that laws were appropriate for most societies since they were carefully thought out and could be applied to most situations. Therefore, people should be ruled by the best laws.

Dr Katy Hayward of Queen’s University Belfast confirms that abandoning the Rule of Law could have reputation issues for the UK and its standing globally.

By stating (not even implying) that they intend to legislate in a way that is ‘inconsistent and incompatible with international law and other domestic law’ the UK government has proven the worst fears of the EU – those fears which were leading them to take a hard line in the first place.

And when such hard lines are drawn, Northern Ireland (positioned as it is on that UK/EU boundary) is bound to find itself in the most uncomfortable place.

The more interesting question is: why? Why risk reputation? Why risk all trust? Why risk the careful progress made in the Specialised Committee charged with overseeing the Protocol? A diverse range of eminent figures, from the President of the EU Commission to the Chair of the US Congress Ways and Means Committee (which would have to approve a US-UK FTA) to the Chair of the Tory Party’s 1922 Committee, to the Lord Chief Justice of Northern Ireland have expressed bewilderment.

Such a U-turn is not without precedent. The European Commission published its third review of the EU-US Privacy Shield in October 2019 and declared it was workable in protecting the transfer of personal data to the US.

Yet on 16 July 2020, just nine months later, the Court of Justice of the European Union struck down EU-US Privacy Shield by declaring it invalid in its landmark judgment in Schrems II.

In modern times, many countries around the world have agreed that the ‘Rule of Law’ should be followed. In the US, this means that no one, not even the President of the United States, is above the law. The principle of the ‘Rule of Law’ also extends to corporations and institutions. The US Federal Courts further state that all people should be held accountable to laws that are publicly accessible and judged independently.

Yet US President Donald Trump has publicly challenged the legality of the postal ballot system if its use results in a defeat to his re-election campaign in November 2020.

These examples illustrate that the principle of the ‘Rule of Law’ is under attack from those who should protect it. Those in power are often the custodians of enforcing national and international laws fairly and consistently and also adhering to international principles of human rights.

But they cannot always be relied on to do this. So another solution for the protection of the ‘Rule of Law’ may lie in the hands of the media, according to Bentham.

Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against impropriety. It keeps the judge himself under trial …. It is through publicity alone that justice becomes the mother of security. By publicity the temple of justice is converted into a school of the first order.

Publicity is a central concept of Bentham’s theory of law and an uncensored media can provide robust and comprehensive oversight of public power in all its forms.

But as Brexit and the US Presidential Election has shown, such power to hold those to account is eroding particularly as those who rule and govern over us are often less keen to be held to account by the media, often not being available for interview or selecting journalists for briefings based on their sympathetic views.

In the final analysis, the ultimate protection of the principle of the ‘Rule of Law’ may lie in the hands of an independent judiciary. The ancient answer is that law can rule only when those entrusted to rule with law submit to its governance, that is, only when they commit to be guided and controlled by it.

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