WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
July 29 2021
WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO

‘Conceptual creep’: Robert Buckland and the rule of law

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‘Conceptual creep’: Robert Buckland and the rule of law

Let us imagine a hypothetical situation, where Jeremy Corbyn won one of the two general elections he contested as leader, and embarked upon a Soviet-style cultural revolution, with schoolchildren ordered to stand to attention before the communist hammer and sickle at morning assembly, droning out The Internationale.  Understandably, there would be outrage. Schools are not re-education camps, where children are sent to be pumped full of left-wing propaganda or interrogated about whether their parents are whispering traitorous views about the regime at home.  

What is good for the goose, is not, however, good for this government’s gander.  Not content with rewriting British history lessons at schools, or interfering with what portraits a college MCR may choose – or choose not – to hang from their walls, the government’s latest sally into the education arena is to promote ‘One Britain, One Nation Day’. Gavin Williamson, the Education Secretary, has been encouraging schools to have children stand before morning lessons this Friday and chant out a song that concludes with the fourfold repetition of the spectacularly nationalistic ‘Strong Britain, Great Nation’.  Such fascistic posturing would be more in keeping with China’s paranoid nationalism, or with the insecurities of Lukashenko, the President of Belarus, leader of the last Soviet satellite state left standing, rather than one of the world’s supposed leading liberal democracies. 

The government’s latest piece of populist propaganda is not flawed because it is right-wing, but because the government is abusing its power, pushing the education system in a direction it is not supposed to travel. The government’s job is not to attempt Maoist indoctrination of the next generation, but to maintain an effective education system.  

Distinguishing between criticism of the form or manner of what is being done and the substance of what is being done is something that seems to vex the Lord Chancellor.  Delivering a speech to the UCL’s Constitution Unit last week, Robert Buckland discussed how the rule of law has been the ‘victim of conceptual creep’, leaving it vulnerable to ‘politically motivated interests’.  The obvious implication here is that the judicial bench is stacked with liberals, who rent their robes in frustration at the government’s right wing ideology, despairing that we haven’t opened our borders to all, or that benefits have not been raised to dizzy heights, and desperate for a case to come before them that will let them transform their political hopes into legal reality.  

In Buckland’s view, this has set up a ‘false dichotomy’ between the rule of law and parliamentary supremacy, a dichotomy which fails to recognise that ultimately, it is the role of the courts to ‘give effect to the intention of Parliament’, through ‘looking at the words of the statute in context’.  In doing this, Buckland argues, the courts are aided by other ‘presumptions and rules of interpretation’ that are incorporated within the rule of law, such as the principle of legality (which broadly asserts that legislation shall be presumed to be consistent with ‘fundamental rights and principles’).

But no longer, according to Buckland, is the rule of law so impartial. Instead, it has been co-opted by partisan groups as a means of cudgelling the other side, another tool in the political arsenal by which parties express disagreement with each other.  This is not, in and of itself, an incoherent perspective.

But confusingly, the example that he first turns to in defence of this is Part 5 of the government’s Internal Markets Bill. The controversy here was over a part of the original bill that would have given the UK government the right to break international law – something the government freely admitted – in organising its trade arrangements.  While there is some prevarication over the status of international law, and whether unilaterally violating it would be in breach of the rule of law, it is absurd to claim that it is a ‘classic example’ of where the rule of law has become infused with political values. If the rule of law means anything, it is that the law should be coherent and consistent in its application.  The government promising to do one thing in the international arena before later giving itself the power to do another thing entirely in the domestic arena is hardly that. 

Nor is Buckland’s philosophy on the rule of law quite as detached from subjective norms and values as he may think it is.   While he emphasises the need for laws to be non-retroactive and for the to uphold Parliament’s views rather than their own, he quickly invokes the language of ‘fairness’ and ‘justice’.    Such values are a crucial part of the rule of law.  But the consequence of recognising this is that the courts must make value judgments on what is just, and what is not.  

Rather than recognise this, Buckland seems to think that here, cases can instead be divided into those that are controversial and those that are not, citing R v Registrar General.  Here, a convicted murderer wanted to be given the name of his birth mother under the Adoption Act, and there was a legitimate fear that he would use this information to cause serious harm or kill her.  As such, the court rejected this application, which the Lord Chancellor applauds because the other ‘possible outcome in [the] case would be an unfair one’.

While this judgment seems to have been the obvious one, the Lord Chancellor’s support of it reveals the fundamental problem with his challenge to the rule of law in the political arena.  Concepts like ‘fairness’ and ‘justice’ are not procedural norms, but substantive ones necessarily infused with subjective values.  While Buckland might think that ‘we can all recognise that disclosure would have been unjust’ there, it is equally reasonable to argue that it would be obviously unjust to set employment tribunal fees at a level inaccessible to the ordinary person, or that it would be unjust to unilaterally strip a teenager of her citizenship without a fair trial. 

To this end, it is difficult not to conclude that the Lord Chancellor thinks that the rule of law is validly engaged with and defended by the courts when he agrees with their reasoning, and invalidly so when he does not, like the Supreme Court’s decisions in Evans or Privacy International.  In the latter case, which concerned the use of ouster clauses – where Parliament tries to minimise scrutiny of tribunals’ decisions from the ordinary courts – Lord Carnwarth, writing for the majority, concluded that the rule of law required a coherent framework of law, and that if tribunals were too easily permitted to develop a separate thread of jurisprudence independent from the ordinary courts, their decisions might become inconsistent with the ‘general law of the land’.  

Lords Sumption and Wilson may, as Buckland points out, have come to a different conclusion about what the rule of law required in this case. But the simple fact that the Lord Chancellor prefers the view of the minority, or the fact that Parliament is unlikely to have legislated with the intent of ‘infringing the rule of law’ does not mean that the minority opinion is correct, or that the rule of law has not been breached. It is equally unlikely that Parliament intended to legislate in breach of the rule of law in Evans, which was concerned with whether the Attorney General  could overrule the decision of an independent tribunal on a freedom of information request. Not unreasonably, the Supreme Court ruled that Parliament would not have gone to the effort of setting up an independent judicial system if the Attorney General could simply wave a wand and overturn the system’s conclusions.  

The Lord Chancellor seems to want to have his cake and eat it.  He both wants the courts to be free to prevent ‘fundamental breaches’ of the rule of law, and for the courts to stay out of political debates.  He wants the executive to be subject to scrutiny of the courts, but he also wants ministers to be free to overturn decisions of independent tribunals.  He wants the courts to uphold values inherent in the rule of law like ‘justice’ and ‘fairness’, but without ‘reading controversial political values’ into it.  

Throughout his speech, the Lord Chancellor emphasises that he, and the rest of the executive, are ‘servants of Parliament’, and that there is an obligation for the government to act lawfully and to respect the rule of law.  Given that this is a government that has been censured by the Speaker for failing to respect Parliament, and that has used the pandemic as an excuse to sideline the legislature, preferring to pass laws by decree than by legislative assent, it is difficult to marry the Buckland’s views on what the government he is a part of is supposed to do, and what it is actually doing.  Perhaps the Lord Chancellor would find his time better spent not trying to shoehorn political ideology into the decisions of judges he disagrees with, but making sure his prime minister upholds the values of the rule of law that he claims to be so keen to defend.