Partygate could tear apart the UK government but, regardless of one’s political preferences, there have been some good things that have come from the episode. Where it is not unusual to see different conceptions of the Rule of Law invoked on opposing sides of an argument, it was a pleasant surprise to see opposing sides invoke the concept in support of the same argument in a way that’s recognisable. ‘The Rule of Law’ was deployed in a way that reflected the concept’s core purpose: holding those in power to the same rules and standards as everyone else and to deter the arbitrary application of power. However, this moment of unity is unlikely to settle the perennial contest relating to the concept’s meaning.

Partygate, the Gray Report, and the Rule of Law

The Partygate scandal has dominated the UK’s political landscape over recent weeks. The discussions that have followed the release of the Gray Report – investigating a number of gatherings on government premises during COVID restrictions – pushed discussions relating to Prime Minister Boris Johnson and government officials’ conduct once again into the public eye.

Following the tabling of the Gray Report during a sitting of the House of Commons on 31 January 2022, Sir Keir Starmer – the leader of the opposing Labour Party – took aim at the Prime Minister for his contravention of the Rule of Law. Starmer quoted Margaret Thatcher – a former Conservative Prime Minister – to criticise Boris Johnson: ‘The first duty of Government is to uphold the law. If it tries to bob and weave and duck around that duty when it’s inconvenient…then so will the governed’. The quote forms part of a speech to the Conservative Party Conference in 1975 that is sub-titled ‘Rule of Law’. The concept is not named in the quote – but the idea that laws apply equally to the governed and those that govern reflects one way that the concept is frequently thought to operate.

The relevance of the quote to the Rule of Law is not lost on Starmer. Immediately before invoking Thatcher’s words, Starmer accused the Prime Minister of damaging the Rule of Law. He said that continued denials relating to the Partygate accusations by the Prime Minister have been responsible for ‘fraying the bond of trust between the government and the public eroding our democracy and the Rule of Law.’ Starmer seems to agree with Thatcher’s idea of the concept’s meaning.

Following a brief response by the Prime Minister, Theresa May – the Conservative Prime Minister who preceded Johnson – said ‘either [the Prime Minister] had not read the rules or didn’t understand what they meant… or they didn’t think the rules applied to Number 10. Which was it?’ Like Thatcher, May does not use the phrase; yet, her point is a clear and obvious invocation of a fundamental Rule of Law principle: legal equality. This meaning proved popular. Ian Blackford’s criticism of the Prime Minister invoked the same idea.

For most readers of this blog, the principle of legal equality will be immediately familiar as a staple of English constitutional law. The idea is readily traceable to A.V. Dicey. Legal equality forms the second part of Dicey’s Rule of Law. His first Rule of Law point, that the government should not exercise its power arbitrarily, is clearly connected to the requirement for legal equality. After all, one way that arbitrary laws can be discouraged is to ensure that the laws that are made apply to those making the laws. The idea that the government should not act arbitrarily also forms the sub-text to the comments by Thatcher, May, and Starmer. This relatively abstract idea of anti-arbitrariness represents the most widely accepted function of the concept of the Rule of Law.

What is apparent and obvious from each of the uses of ‘the Rule of Law’ in the debate is that there seems to be some broad agreement as to the function and nature of the concept: the Rule of Law requires legal equality (as part of its anti-arbitrariness function). This agreement is, however, not prevalent in Rule of Law discussions. And, the agreement in the House of Commons is unlikely to change the ongoing contest regarding the concept’s meaning.

The Contested Meaning of the Rule of Law

The meaning of the concept of the Rule of Law is contested. The conceptual ambiguity that stems from the concept’s contested meaning causes problems when the phrase is invoked as part of an argument. It has caused me to elsewhere suggest that the phrase ‘the Rule of Law’ should be abandoned in a bid to generate additional conceptual clarity.

Whilst the broad anti-arbitrariness function of the Rule of Law provides something that can be universally agreed upon, achieving any agreement beyond this abstract function is difficult. This could stem from the historically and philosophically diverse voices that are frequently used to illustrate the concept’s meaning; these ‘usual suspects’ have been writing Rule of Law accounts over several millennia.

The earliest account belongs to Aristotle. He suggests law should be superior to the rule of individuals, as individuals are akin to the beast. Around two thousand years later, in the seventeenth century, John Locke decried arbitrary rule-making and, instead, called for predictability and certainty through promulgated standing laws. Dicey’s late nineteenth century Rule of Law account pre-dates by around 50 years Hayek’s account that suggests predictability is necessary to limit the powers of governments. Lon Fuller, in his famous 1960s allegory of King Rex, suggests eight desiderata that must be fulfilled to satisfy the Rule of Law: generality, publicity, prospectivity, intelligibility, consistency, practicability, stability, and congruence. A different set of eight requirements is proposed by Raz in the 1970s. As part of the general principle that the law should be capable of guiding the behaviour of its subjects, his list includes prospectivity, stability, pre-stated rules, an independent judiciary, natural justice, and accessibility of the courts.

Even though the most recent usual suspect account was authored more than four decades ago, these are the conceptions most often used to describe the meaning of the Rule of Law. Even on the brief summary provided above, some points of commonality can be seen. Most, for example, require some form of predictability in law-making. However, each of the usual suspects provide a different view of the Rule of Law. Whilst they can all be seen to agree that the Rule of Law opposes arbitrary law-making, any attempt to identify a less abstract point of agreement results only in conceptual ambiguity.

Conceptual ambiguity remains even when more recent accounts are considered. The above accounts can largely be seen as thin/procedural accounts that operate as limits on the public exercise of power. Other Rule of Law accounts can be both thick/substantive as well as operating in the private sphere. Whilst not as frequently deployed as the usual suspects, their consideration does little to clarify the concept’s meaning.

The Universal Declaration of Human Rights places the Rule of Law in a prominent position and states human rights should be protected by the Rule of Law – the Rule of Law is a vehicle to achieve human rights. Tom Bingham suggests that the Rule of Law requires, inter alia, the protection of human rights. As substantive accounts of the Rule of Law, they both value a particular end result; yet, they differ from one another. The same can be seen in the ‘social dimension’ of the Rule of Law put forward by Jeff King or in the Rule of Law’s operation in private relationships recently championed by Sanne Taekema and others.

These functions illustrate the significant differences between popular conceptions. The most frequently relied upon conceptions all adopt different meanings of ‘the Rule of Law’. Any level of agreement as to the concept’s meaning is lost when any attempt is made to move beyond the most abstract anti-arbitrariness function.

‘Rule of Law’ v ‘Rule of Law’

The Rule of Law is universally seen as a good thing. One consequence of its broad anti-arbitrariness function is that being against the Rule of Law would be an unpopular position in Western liberal democracies. Given its universal appeal, the concept is frequently invoked on opposing sides of an argument.

If the concept is deployed on both sides of an argument, and if the parties take the concept to mean anything beyond the broad anti-arbitrariness function, the precise intended meaning of the concept becomes difficult to understand. The rhetorical meaning is lost and the parties can argue past one another.

Following the US presidential election dispute in Florida in 2000, ‘the Rule of Law’ was invoked by opposing legal teams in the US Supreme Court. A similarly confusing use of the concept arose regarding the potential of an extra-judicial inquiry being conducted into recent allegations of rape made against the (then) Australian federal Attorney General. Some saw the inquiry as no threat to the Rule of Law, whilst the (then) Attorney General and the Australian Prime Minister suggested the opposite. The disagreement stems from a fundamental difference regarding the concept’s meaning. The former camp relied on an idea of legal equality; the latter, an idea of innocent until proven guilty.

As part of the debate in the House of Commons, and in response to a question by Brendan O’Hara, Johnson provided a response that suggested his meaning of the Rule of Law would fall into the latter camp of ‘innocent until proven guilty’. The concept was not, however, used as a substantial shield and there was no real attempt to contradict previously suggested meanings. This stands in stark contrast to the way that the Australian Prime Minister and (then) Attorney General actively deployed the concept to argue that a non-judicial inquiry would not be appropriate.

These competing rhetorical invocations illustrate the difficulty in identifying exactly what the intended meaning of the concept is. Not only can ‘the Rule of Law’ be invoked in an immediately recognisable form that echoes several usual suspects’ theories – for example, ideas of legal equality – but it can also be invoked to support a less easily recognisable idea – like ‘innocent until proven guilty’. When the ‘Rule of Law’ is deployed, one must spend time deciphering which Rule of Law – if any – is being invoked.

Opposing Sides’ Rule of Law: The Rule of Law v Arbitrariness

In Dicey’s original Rule of Law idea, he criticised the way he saw French laws operating so as to create a two-tier system in which the laws operated differently for the governed and those that govern. Dicey was not specifically invoked by either May or Starmer in the Partygate debate; yet, their Diceyan criticisms of the arbitrary and unequal application of the laws are obvious. Notwithstanding Starmer and May’s positions on opposite sides of the political aisle, they were united in their method of criticism. They clearly agreed that the government and the Prime Minister should be subject to the same laws as everyone else. This relative agreement as to the concept’s meaning and application, together with the use of a readily recognisable idea of the Rule of Law, is both surprising and welcomed.

There could be two ways to view Partygate in terms of the Rule of Law. The first – more sceptical – view is that the Rule of Law is weak or has failed in its fundamental purpose. This could be shown by the very fact that the events leading to Partygate occurred. It could also be shown through other instances – similar to the Australian example – where the concept was used as a shield by those in power to avoid culpability. The second view is that the Rule of Law, at least as a concept that operates in its most general anti-arbitrariness form, is alive and well. This more optimistic view could be evidenced by the unified deployment of the concept from opposing political sides to criticise the government. In this regard, the concept appears to still have importance and weight in holding those in power to account.

One swallow does not make a summer, however. I am not naïve enough to think that one instance of relative agreement regarding the use of the concept or phrase of the Rule of Law will prevent the concept from being deployed for the same rhetorical or unidentifiable purposes that have plagued public debate in recent years. I also do not think that the current contest regarding the concept will abate in the near future simply because of a relative point of agreement between opposing politicians. However, the concept’s recent accurate and agreed upon deployment during Partygate has been a pleasant surprise. What this suggests is that even though academic debates regarding more nuanced meanings of the Rule of Law will – and should – continue, and even if the Rule of Law may not operate so as to completely prevent events like those that led to Partygate, the most uncontroversial meaning of the concept retains enough rhetorical and political force to be used to hold those in power to account.

Deployment of the concept in a recognisable form by opposing sides is unusual. During the January debate, there was no attempt to capitalise on the concept’s inherent ambiguousness. No attempt was made to use the concept’s universal appeal as a definitive defensive shield. Instead, notwithstanding the ongoing conceptual ambiguity regarding the concept’s meaning, the Rule of Law was still able to be used to hold those in power to the same rules and standards as everyone else and to deter the arbitrary application of power. After all, if it is about anything, this is what the Rule of Law is all about.  

Paul Burgess, Lecturer in the Faculty of Law, Monash University

(Suggested citation: P. Burgess, ‘A Rule of Law Surprise Party(gate)’, U.K. Const. L. Blog (10th February 2022) (available at https://ukconstitutionallaw.org/))