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David Gauke is a former Justice Secretary, and was an independent candidate in South-West Hertfordshire at the 2019 general election.
The following paragraph should be one that the overwhelming majority of readers of these pages can support.
The rule of law is central to what we are about as a country. It protects the rights of the individual and provides the certainty and stability necessary for a flourishing economy. It ensures that disputes can be resolved without bloodshed and that arbitrary power can be constrained. As a country, we have a proud tradition of respecting the rule of law, which has been the bedrock of our peace and prosperity.
The following sentence is more contentious, at least on these pages.
This Government has a problem with the rule of law.
There are three current instances where this problem is evident. The starting point has to be partygate. The evidence is clear that there was a culture within 10 Downing Street that the laws that applied to the country as a whole did not apply there. It is also clear that the Prime Minister must take responsibility for such a culture and, in at least one case, participated in a gathering that the police consider to have been illegal. It would be a surprise if there were no further such cases.
This immediately raises questions about the Prime Minister’s attitude to the law. This is not just my view but also the view of the person Boris Johnson appointed to the House of Lords in order to become a Justice Minister.
When David Wolfson resigned his Ministerial position, he stated that the ‘scale, context and nature’ of the breaches of the criminal law in Downing Street meant that ‘it would be inconsistent with the rule of law for that conduct to pass with constitutional impunity’.
He went on to argue that it was not just what happened in Downing Street or the Prime Minister’s own conduct but ‘also, and perhaps more so, the official response to what took place’. In other words, lawbreaking by lawmakers should have consequences and not just be brushed aside. Wolfson tells the Prime Minister ‘we obviously do not share that view on these matters’ and asks him to accept his resignation.
Wolfson is the second Lords’ Justice Minister to resign in protest at the Government’s attitude to the rule of law. Richard Keen resigned in September 2020 over the approach to the Internal Market Bill. Keen sought to find an approach to the Bill which was compatible with the UK’s obligations under international law.
Commons Ministers, however, were having none of it. The purpose of the Bill at that point was explicitly to enable the Government to breach treaty obligations contrary to international law (this was part of the failed strategy to force the EU to make concessions on the Northern Ireland Protocol). Keen felt obliged to walk.
I mention this instance not just because it should be a matter of acute embarrassment to lose two respected Ministers in this way (and finding a credible figure to replace Wolfson will not be easy), but that the substantive issue in respect of the Northern Ireland Protocol is likely to return soon. The Financial Times reported last week that the forthcoming Queen’s Speech will contain legislation enabling the Government to change unilaterally the terms of the Northern Ireland Protocol. This, just like the initial version of the Internal Market Bill, would be a breach of international law.
The third example of where the Government’s attitude to the rule of law is of concern is the Rwandan asylum policy. It is, at the very least, questionable whether this policy is consistent with our legal obligations under an international treaty.
In a pre-emptive strike, the Prime Minister has already blamed the number of asylum claims on ‘politically motivated lawyers’ and the Government is giving every impression that it relishes a fight in which it places itself on the side of the public whilst denigrating those seeking to uphold the legal rights of asylum seekers. A policy that involves legal risk is one thing; a policy that is intended to provoke legal opposition (and quite possibly be overruled in the courts) is another.
One controversy over the Government’s approach to the rule of law may be considered to be a misfortune, two looks like carelessness and three suggests a pattern of behaviour. Proper Conservatives should be concerned.
A belief in the rule of law is not a partisan issue. It has been held by mainstream politicians of all parties but Conservatives, in particular, should be committed to the concept. If you believe in order and stability, in strong institutions, in property rights and predictability in commercial relationships, the rule of law is essential.
Traditionally, most of the serious threats to the rule of law have come from the Far Left – renta-mobs who argued that policies should dictated by ‘the streets’ or militant trade unionists like Arthur Scargill who encouraged intimidation and mass lawbreaking as a means of overthrowing governments.
Now, the threat comes from the Right. Most obviously, we see this in the US in the shape of Donald Trump and that element of the Republican Party which tolerates him (which is pretty much all of it). But, as with our three examples, the current Conservative Government is – at best – reckless in its approach.
This compares unfavourably with the attitude and approach of Margaret Thatcher. In her time as a barrister specialising in tax law, she developed a strong attachment to the rule of law and the superiority of England’s common law tradition.
‘In conversation at her zenith and in her retirement,’ wrote her friend and biographer Charles Moore ‘the phrase “rule of law” and “not just liberty, but law-based liberty” probably came up more often than any other. She saw the law, even more than democracy, as the shibboleth that distinguished free from unfree societies’.
She saw the rule of law, as Moore puts it, ‘as a gift from England to the rest of the world’. Her belief in the rule of law was not a purely domestic one. She believed in and respected international law. It constrained her actions in the context of Northern Ireland and the Falklands and she demanded that others, such as China with regards to Hong Kong, should also respect such constraints.
Where countries breached international law – whether the Iraqis invading Kuwait or Argentina capturing the Falklands – she believed that the international community in general and the UK in particular had a duty to take action in order to enforce the law. Indeed, during the Falklands conflict she responded to the oft-quoted Dean Acheson’s jibe that ‘Britain had lost an empire but not found a role’ by stating ‘I believe Britain has now found a role. It is upholding international law and teaching the nations of the world how to live.’
Not many would quite put it quite that way anymore, but the sentiment is clear. She believed – as Conservatives should believe – that respect for the rule of law is a priceless national asset.
Conservatives should not flout international law, set the law up as being an enemy to the people’s priorities or tolerate a lawbreaker as its leader. It really is that simple.