As I watched Lord Judge’s eloquent defence of the rule of the law in the House of Lords last week, I couldn’t help but feel that, as a nation, the UK is at a crossroads regarding its adherence to the rule of law. A trio of threats to the rule of law present themselves in parliament at this time: The Internal Market Bill, the Overseas Operations Bill and the inexorable flow of Health Protection Regulations. Before discussing the nature of the threats, it may be useful to highlight the distinct principles of the rule of law that are concerned. While the concept of the rule of law may have been debated by legal scholars for centuries, I am confident that adherents to both the substantive and formal conceptions of the rule of law would be equally affronted by recent developments in Parliament.

The late Lord Tom Bingham provided an articulate and concise statement of the principles underpinning the rule of law in his book on the subject from 2010 and found common ground with many of his forebears, such as Raz and Dicey, in his work. There follows a selection of the core principles he identifies which will be relevant to the discussion that follows:

• The law must be accessible, and so far as possible intelligible, clear and predictable;
• The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation;
• The law must afford adequate protection of fundamental human rights;
• Means must be provided for resolving disputes e.g. access to courts;
• Ministers must exercise their powers reasonably and in good faith;
• The State should comply with its obligations under international law.

Internal Market Bill

Legislation to regulate the UK’s market post-brexit, the Internal Market Bill, is currently passing through parliament. Part 5 of the Bill, which regulates Northern Ireland’s place in UK’s internal market, is an odious piece of legislation showing a brazen disregard for the rule of law. Raz once described the rule of law as “a defence against the assertion of power unconstrained by law” and Part 5 of this bill is the antithesis of that statement. The Northern Ireland Secretary, Brandon Lewis, openly admitted that the draft legislation would permit the government to breach international legal obligations arising from the UK’s withdrawal agreement with the EU when the ink is hardly dry on the paper. Section 47 of the Bill alone is a study in wilful disregard for the rule of law. It would confer so-called “Henry VIII” powers on government ministers to override primary legislation with secondary legislation, effectively giving the executive power to override parliament. Such powers are not that unusual in practice, what is unusual is that these powers are supercharged and accompanied by what has been accurately described by Ronan Cormacain at UK Human Rights Blog as “the mother of all ouster clauses”.

The secondary legislation is super-charged by s.47(2)(a) under which regulations passed under Part 5 are “not to be regarded as unlawful on the grounds of any incompatibility or inconsistency with relevant international or domestic law”. Thus, secondary legislation passed by a government minister under this Bill would supersede every other law in the UK – all of it: common law, statute law, everything. At the same time, the “mother of all ouster clauses” limits the courts’ ability to conduct judicial review of the regulations. It precludes the application of the Human Rights Act to the regulations and ensures that the courts cannot annul the regulations under the HRA by introducing what can only be described as “Schrödinger’s secondary legislation” – legislation which is secondary legislation, but is also transmogrified into primary legislation for the purposes of the Human Rights Act (s.47(3)). Meanwhile s.47(4) severely restricts the court’s jurisdiction over such measures stating

no court or tribunal may entertain any proceedings for questioning the validity or lawfulness of regulations … other than proceedings [for judicial review].

This bill undermines the rule of law from multiple angles: facilitating the breach of international law, excluding fundamental human rights protection and precluding access to the courts related to the legislation.

Health Protection (Coronavirus) Regulations 2020

Over forty years ago in Sunday Times v UK, the European Court of Human Rights observed

The law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.

Decades removed from the judgment the people of England grow increasingly bewildered at the torrent of Health Protection Regulations emerging from the government in response to the covid-19 pandemic. The Health Protection Regulations seem to be a textbook example of disregarding the rule of law. The rules change with alarming frequency, undermining predictability and intelligibility. One of the highest-ranking police officers in the country, Owen Weatherill, recently admitted that even he doesn’t understand the latest regulations. The Regulations have also been accompanied by arbitrariness in enforcement, with special advisors to the government given a free pass when they break the rules, but woe betide the organisers of house parties in Nottingham. The regulations have also frequently entered into force before they are even published or laid before parliament. This prompted the Speaker of the House of Commons, Lindsay Hoyle, in an extraordinary statement to castigate the government for the “totally unsatisfactory” way in which it was exercising its powers to make secondary legislation and rightly accusing them of “undermining the rule of law”. Clarity, predictability, equality of application and non- retroactivity have all be repeatedly cast into doubt by these regulations.

Overseas Operations Bill

All the while the Overseas Operations Bill slithers through parliament, attempting to introduce a presumption against prosecution for service personnel for actions undertaken while on overseas missions. The bill’s failure to include murder and torture among the offences to which the presumption does not apply would clearly breach the UK’s obligations under international human rights law. Articles 2 and 3 of the European Convention on Human Rights require the UK to put in place effective criminal law provisions to deter the commission of offences against the person (including murder), which must be accompanied by effective law enforcement for the prevention, suppression and punishment of breaches of those laws regardless of when the breach occurs. The bill also attempts to limit the application of the law to a specific category of persons when there are no other bars on review and prosecution of ‘cold cases’ under the law of England and Wales for anyone else. The bill in its current form would breach the UK’s international obligations under various treaties, including the European Convention on Human Rights and the UN Convention Against Torture, undermines the principle that the laws of the land should apply equally to all and fails to provide adequate protection for human rights.

Conclusion

While these all paint a bleak picture of the current state of the rule of law in the UK, there are reasons to be hopeful. Firstly, the government has faced an increasing backlash from its backbenchers over the process for introducing Health Regulations. If it continues on its course, future regulations may not be affirmed by parliament. Secondly, a series of amendments have been proposed to the Overseas Operations Bill, which would address some of the issues identified above. Finally, the government faced one of its heaviest defeats in recent memory at the House of Lords over part 5 of the Internal Market Bill. Lord Judge led that revolt with characteristic dignity, eloquence and good sense. I conclude with his words and earnestly share his sentiment

The rule of law has served us well. It has not made a perfect society—nor could it. But we all know that without it our society would have been, and would still be, catastrophically worse. We must defend that bulwark, and I hope that I shall be supported, because I intend to take this issue to a Division, so that the House can give its own opinion on this dangerous legislation. I say, “Not in my name.

Dr. Stuart Wallace, Lecturer, University of Leeds.

(Suggested citation: S. Wallace, ‘A Triple Threat to the Rule of Law’, U.K. Const. L. Blog (27th Oct. 2020) (available at https://ukconstitutionallaw.org/))