WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
December 01 2020
WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO

Stepping up to the mark

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Stepping up to the mark

Union Jack. Pic by Vladislav Nikitin (Flickr, creative comms)

The House of Lords is a curious institution.  Unlike most liberal democracies, whose legislators occupy their seats by virtue of the choice of the people, the Lords occupy their seats by nearly every measure except the choice of the people.  Some Lords take their place in the debating chamber by virtue of primogeniture, others by virtue of past offices held, and others by virtue of prime ministerial decree.

It would not, therefore, be unreasonable for an impartial observer to  expect the House of Lords to be a deferential body.  Even when constitutional waters are placid, their lack of democratic accountability should check their authority, making them wary of intervening in decisions made by a body that draws its legitimacy directly from the people.

At times of constitutional turbulence, like those we now face, this concern is magnified, with an unelected body filled with wealthy members all too easy to attack as a coterie of elites, determined to frustrate the desires of the government, and so the will of the people.

Such concerns were clearly not at the forefront of the Lords’ minds as they voted on the government’s Internal Market Bill this week.  Rather than trying to consider if the Sewel Convention was engaged, obliging them to defer to the House of Commons on the basis that it formed part of the government’s manifesto, the Lords turned up en masse to excoriate the bill.  Members of the Lords, including Tory grandees like Michael Howard, voted overwhelmingly for a motion of regret because the bill ‘would  undermine the rule of law and damage the reputation of the United Kingdom. Lord Judge, the former Lord Chief Justice, argued that should the Lords have passed the bill, and so ‘knowingly grant(ed) power to the executive to break the law’, it would not have ‘merely undermined’ the rule of law, but would have ‘subverted’ it, trashing Britain’s standing in the world.

The courage of the Lords in passing this motion should not be understated.  The Conservative government is increasingly unwilling to brook any opposition, with Priti Patel, the Home Secretary, having arguably inspired attacks on law firms through her constant denigration of ‘activist lawyers’, while another Tory MP has mused upon the need for disestablishment if the bishops continued to speak against the government in the Lords.

Already, the government has tried to degrade the quality of the Lords, appointing a motley collection of lickspittles over the summer, ranging from the inexplicable – Ian Botham, the cricketer – to the offensive – Claire Fox, the former revolutionary socialist.  Johnson also had time to nominate Kate Hoey, the Brexit-supporting former Labour MP, but not the former Archbishop of York, John Sentamu.  Astonishingly, Hoey and Fox then both voted against the motion of regret. Botham didn’t turn up.

It would have been much easier for the Lords to have taken the path pursued by the US Senate, which has abandoned its constitutional role as a check on the president, and has instead become his greatest cheerleader.   Even for a government as prone to u-turns as Johnson’s, it would be astonishing to see them excise the most offensive elements of the IBM without a fight.  The government needs to pass this bill before the transition period ends on January 30th, and so cannot simply circumvent the Lords by using the Parliament Act, which would allow the bill to become law without the approval of the Lords.

As such, it would not be surprising to see Johnson’s government exerting huge amounts of pressure on the Lords, likely in a similar fashion to how they have tried to intimidate the judiciary, by attacking their legitimacy and musing on institutional reform.

Looking to America and its impending constitutional conflagration shows us how crucial it is for the Lords to resist this pressure.  In the United States, its democratic institutions have abandoned the rule of law.  Mitch McConnell, the Senate Majority Leader, traded institutional dignity for power, accepting Trump’s constant, flagrant violations of constitutional norms and principles in exchange for seats on the federal judiciary and the Supreme Court.  In forsaking their constitutional obligations, this failure of the legislative branch has let the American executive branch prowl unchecked, whether through repurposing money from other sources to pursue policies rejected by Congress, or through William Barr, the Attorney General, using the powers of the federal government to defend the President in private legal actions.

While America’s Supreme Court has been corrupted by partisanship, becoming a feeble bulwark against an expansionist executive, our Supreme Court has not. Yet it would be naive to expect it to be able to defend our constitution against every violation of the rule of law.  Should the government eventually pass the IBM in its current form, it is likely that some of the more egregious provisions will be moderated by the courts.  But while the clauses limiting judicial review and the Human Rights Act will likely be read down, it would be difficult for even the most activist court to fend off the provisions that allow the government to break international law.

As the Lords discussed on Tuesday, the rule of law is not the sole preserve of lawyers.  For it to be fully upheld, it must be defended by all branches of government.  Legal action is currently being taken against the Lord Chancellor, Robert Buckland, for failing to adhere to his oath as Lord Chancellor to ‘uphold the rule of law’.  In all likelihood, this action will get short shrift in the courts, as it should.  To the best of my knowledge, no legal action has ever been taken against a member of government for failing to uphold their oath, and there is little justiciable material for the courts to act upon.  The rule of law is a valuable concept, but it is not a catch all by which the courts can condemn any undesirable action of the executive.

We have seen the value of the rule of law in the courts this week, with the Court of Appeal finding that the government’s deportation policy violated the deportees’ right of access to the courts.  In deporting them without proper notice, the judges found that the government had failed to ensure they had adequate access to justice, with the policy providing ‘any opportunity at all…for the individual to…lodge a judicial review’.  This is the type of unlawful policy where courts can bare their teeth, forcing the government to comply with uncontroversial interpretations of the rule of law.  As the Court of Appeal found, if the rule of law means anything, it is that everyone must have the right to have their case heard.

But for a liberal democracy to remain as such, all parts of the state must play their role in defending it against rank populism, as the House of Lords have shown this week.  There is much that the courts can do, but as Alexander Hamilton wrote in the Federalist Papers, it is the weakest branch, because it has ‘no influence over either the sword or the purse…’, and its influence is limited to the weight of its judgment alone. When matters go beyond the law and into the realm of politics, it is our other institutions that must step up to the mark, as the Lords have done.