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Lord Hannan of Kingsclere is a Conservative peer, writer and columnist. He was a Conservative MEP from 1999 to 2020, and is now President of the Initiative for Free Trade.
My friend David Gauke wrote a provocative essay for ConHome on Monday. He began with the uncontentious assertion that “the rule of law is central to what we are about as a country.”
He then went on to argue that “this Government has a problem with the rule of law,” citing three examples of its supposedly cavalier attitude: Partygate, the Northern Ireland Protocol, and the Rwanda asylum plan.
I’ll come to the three charges in a moment. But first, I hope we can all agree with the Gawkster’s opening proposition.
Central to the identity of the United Kingdom is that it is (to quote the seventeenth-century radical James Harrington) “an Empire of Laws, and not of Men”. The people in charge don’t get to make up the rules as they go along. Laws are general, equal and certain.
That principle guarantees our liberty because it ensures, as John Locke put it, that we are “not subject to the inconstant, uncertain, unknown, arbitrary will of another man.”
The rule of law is what distinguishes free societies from despotisms. It is arguably Britain’s greatest export, our chief contribution to the happiness of mankind.
For precisely that reason, almost no one admits to being against the idea. When governments bend the rules in their own favour, they naturally claim that they are acting in accordance with the letter and the spirit of the law.
Gaukie is quite right, then, to put each case under the microscope. A country needs constantly to interrogate itself, to invigilate its standards, to hold its leaders accountable.
So let’s do precisely that, starting with the Partygate affair.
We keep hearing that it is an example of “one rule for them [i.e. politicians] and one rule for everyone else”. But endlessly repeating that accusation does not make it true. There is no evidence that the Prime Minister or senior civil servants have been more leniently treated than others in their position. Quite the contrary.
How many keyworkers have been fined for having a drink in the office? How many nurses, for example, have been prosecuted for sharing pictures of themselves with cakes, or uploading TikTok routines?
To the best of my knowledge, none. And quite right, too. It would have been preposterous to charge a group of workers who were already sharing indoor space under rules designed to reduce unnecessary meetings – let alone two years after the event.
To complain about people being separated from sick or dying relatives strikes me as fundamentally dishonest. There were indeed harsh rules in place – rules which I condemned at the time, unlike many of those who now shed crocodile tears about their effect.
But those rules applied as much to Boris Johnson as to the rest of us. He went unvisited when he was in hospital. He could not spend time with his mother (who died not long afterwards).
The fair comparison is with what other keyworkers did while at their offices. On that basis, if it really was “one rule for Boris”, it was in precisely the opposite way from that which his critics intend.
On the Northern Ireland Protocol, things are more complicated. The Government has an overriding duty to uphold the Belfast Agreement, which depends upon power-sharing. If the Protocol remains unmodified, that deal will collapse, because Unionists will not agree to serve in a devolved government.
The two treaties pull in opposite directions and, if the tension becomes too much, the Government will have no choice but to give priority to the Belfast Agreement, which has been the basis of peace in Northern Ireland for a generation.
Yet it is not clear that dropping parts of the Protocol would amount to abandoning the rule of law. As Peter Lilley argued not long ago on this website, the Protocol was always intended to be temporary, and contains provisions for its own replacement.
It would not be the first treaty to lapse or to be overtaken by events. Where now is the 1729 Treaty of Seville, the 1836 Anglo-Egyptian Treaty, or the 1907 Pact of Cartagena? When an accord is overtaken by events, or repudiated by one of the signatories, the rule of law does not collapse.
Ireland, for example, abandoned the 1921 Anglo-Irish Treaty in stages, cutting its residual constitutional links to the UK, declaring itself a republic and leaving the Commonwealth. Did that mean the end of the rule of law in Ireland? No. It was accepted that a treaty signed under duress had ceased to be valid.
As far as the Rwanda plan goes, we don’t yet have full details. But there is nothing wrong, on the face of it, with two countries reaching an agreement on the processing of asylum claims.
Nor is there any obvious human rights violation. Whereas an immigrant aims to get into a particular country (and I am in favour of immigration into the UK), a refugee aims to get out of a particular country.
As long as asylum-seekers do not face persecution or oppression in Rwanda – and, for all the low-level racism now being aimed at that country by Leftists, no one has shown that they would – they might as well secure sanctuary there as anywhere else.
Yes, we should be watching carefully. It is human nature to care more about outcome than process. We need only look at the United States to see how easily a law-based republic can start to treat elections as contingent, something to be challenged automatically by the losing party.
But, precisely because we live in a world where the rule of law is fragile, where democracies decay into dictatorships, where armies cross borders in anger, we need to keep a sense of proportion.
Britain remains one of the good countries. When Ukrainians say that they want to break with their past and live in a normal country, it is our model – or something very close to it – that they have in mind. Let’s not devalue what we have.