How parochial our Bill of Rights is compared to the sweeping, modern constitution of Russia. “The pretended Power of Suspending of Laws or the Execution of Laws by Regall Authority without Consent of Parlyament is illegall,” says the first, taking the reader to the vanished world of the late seventeenth century.
“Fundamental human rights and freedoms are inalienable and shall be enjoyed by everyone since the day of birth,” declares the second: a statement of the obvious in any progressive, liberal democracy.
I draw the contrast, with all its savage irony, to make a point: that the rule of law is guaranteed not by words on paper, but on what people do – on their institutions and culture they create.
The thought applies to the Government and the rule of law. We know the charge against it: that not so long ago, the challenge to the rule of law came from the left, and that now it comes from the right.
And that it covers everything from the prorogation dispute in the last Parliament, to parties in Downing Street and the threat to break international law in this one.
Most politicians pride themselves as being on top of the facts. Though the Prime Minister can do facts as well as anyone when he puts the work in, the truth is that they bore him.
On the canvas he paints upon, the dazzling colours of hyperbole and metaphor count for much more than the black and white drudgery of facts.
Being fired for making up a quote, pyramids of piffle, late declarations of interest: given the background and his temperament, it’s not surprising that he has become the first Prime Minister to have been fined for breaking the law.
Which makes it all the more important to understand how he comes to hold the post with such a large majority. Let’s go back for a moment to a turning point in the story: prorogation.
In 2019, John Bercow, then Speaker, made a ruling on proceedings about Brexit against the advice of the then Clerk of the House of Commons, Sir David Natzler, and in defiance of convention, as Bercow himself admitted.
His decision paved the way for Dominic Grieve, Yvette Cooper, Oliver Letwin, Hillary Benn, Nick Boles and company taking control of the Order Paper and the Commons.
Focus for a moment not on what they did, and its rights and wrongs, but how it came about. Bercow was illustrating my point about how the rule of law is sustained or compromised.
There are few constraints on the Speaker of the Commons precisely because it is assumed that they won’t be needed.
By voting Bercow into office and propping him up, Labour and other MPs lit a constitutional fire. And it is Dominic Cummings’ way to fight fire with fire.
So the prorogation plan was devised. Which takes us to the Supreme Court’s ruling that discontinuing the session was unlawful. Again, I ask you not to take a view on the judgement, but to consider the background.
The Court could have taken the view expressed previously by the Lord Chief Justice – that the prorogation was “inherently political in nature and there are no legal standards against which to [its] legitimacy.”
That it did not reflects a change that has taken place in the courts over the past quarter of a century or so – what Policy Exchange calls the growth of judicial power.
In simple terms, this places a higher premium on universal rights and a lower one on British particulars than was once the case.
Perhaps this was always likely to be so given the Human Rights Act, the development of the European Court of Human Rights, and the effect on the courts of almost 50 years of EU membership.
There may come a time when right and left swap sides on judicial power. I can imagine a Labour Government governing, as the last one did, with scant regard for individual freedom.
Remember Tony Blair’s plan to detain terror suspects without trial for three months. In similar circumstances, I can imagine Conservatives reaching for the Human Rights Act and the European Court.
The point I’m making reaches beyond party politics: namely, that the shift that has taken place within “the academy”, as the nexus of senior judges and legal academics is called, about the nature of law in Britain has big implications.
Only a minority seems to believe that, ultimately, Parliament is no longer sovereign: that in the last resort there are certain fundamentals that MPs have no authority to breach through legislation.
But the spectre of “conceptual overreach”, as the impeccably moderate Robert Buckland called it, was real enough to spook him as Lord Chancellor.
He wanted to restore “the very conventional thinking that Parliament makes laws that give power to the executive and are checked by the judiciary”.
So, then: a Speaker who didn’t play by the rules, and judges with an activist take on law. Now we move from the courts, and the shift in power from elected to unelected, to other arenas.
Sometimes, such changes are for the best, or so it seems. Consider Gordon Brown’s decision to declare the Bank of England independent, for example.
At the time, he was applauded for curbing the power of politicians to debauch the currency. Today, the Bank itself is accused of doing exactly that.
You don’t have to believe that Brown’s decision was wrong, at least in principle, to believe that the accrual of power by unelected people raises questions of accountability.
These are multiplied when those responsible for regulating government and Parliament overlap. And gain the power to police MPs for flouting “anti-racism, inclusion and diversity”, as is proposed.
Or when the police themselves choose to fine – or not to fine – politicians without explaining why, with potentially momentous consequences.
A literal view of the rule of law would be that Johnson or others are only in breach of it if and when they are found to be so by the courts.
I am taking a broader one which argues that the rule of law is compromised by people of all parties and none as much when Speakers break with convention as when Ministers are fined.
As it would be were the consensus about the neutrality of the courts and the impartiality of regulators to break down. We are not America yet, but it could happen.
There, the threat is anarchy – a Left that wants the police defunded and a Right that cries foul when it loses elections. In Russia, the reality is what follows the breakdown of order: tyranny.
In short, the British consensus about the rule of law is under strain. The Government has a problem with it in the sense that a man has a problem if he catches Covid. He may recover quickly, and he may not.
Yes, he can make his and others’ condition worse by behaving irresponsibly. But there is no point in berating the patient without also seeking to understand the illness. It strikes down Speakers when they break rules.
Judges display symptoms if they deny Parliamentary sovereignty. Regulators risk catching it if they grab for more power. Like Covid, threats to the rule of law are social. They spread. There is reaction and counter-reaction. It is a more profound challenge than most of Johnson’s critics want to understand.