Does the United Kingdom have the rule of law?

The Magna Carta from 1215 is an early English form of encoded social and legal rules. (Photo credit: Wikipedia)

‘Wherever law ends, tyranny begins’. –John Locke

The question seems odd, almost quixotic. In a country that prides itself on Magna Carta with a long history of common law, it seems a question that need not be asked. this seems an odd question. The common understanding is that the United States of America, which prides itself on the rule of law, inherited its faith in the rule of law from the United Kingdom (UK). Although both countries may appear to approach it differently, the question would not be raised. America was founded in the belief that the rule of law backed by judicial review, where a written constitution would be the highest law, would be the highest authority. As Harry Jaffa explained, the social contract, America’s founding, where individuals left the state of nature and entered society was based on the practice whereby each citizen recognized the equal natural rights of all.

How can they enter society, except by a social contract—or compact—in which each recognizes the equal natural rights of all, in a society dedicated to preserving the equal natural rights of each? It is this mutual recognition which is the foundation, at once, of majority rule and minority rights, of the rule of law.[1]

The citizen could appeal to this social contract, the constitution, while the government, organised to secure to the rights of the citizens, would have to justify itself before it. The writings that defend, promote, and explain that founding, rely on the rule of law as touchstone. In the same way, the United Kingdom despite lacking a constitutional moment or a written constitution, holds the rule of law as a central tenet of its constitutional system.

Equality before the law applies more to the US than the UK.

The rule of law, as explained by is greatest modern proponent Albert Dicey, is based on three interrelated ideas. First, the supremacy of regular law over arbitrary power, equality before the law or equal subjection of all classes of person legal and natural, and the government bound by, or constituted by, the law. The definition appears to capture the way the law shapes the constitutional relationships within the regime. Yet, he appears to overlook the way in which the law in the United States derives its just authority from the ends to which it serves, the ends to which the citizens consented through their constitutional moment. In the United States, the people consent to the means by which the law are made and enforced for they are the source of the law. Curiously, Dicey tries to make the same argument for the United Kingdom to argue that the people decide the laws and are sovereign as expressed through Parliament. Yet, this fails to consider the Crown’s prerogative power and Parliament’s legislative supremacy. The people do not constrain Parliament’s will. Only Parliament can restrain its will. Thus, consent is an important difference between the United Kingdom and the United States of America regarding the rule of law as consent or its absence shapes the laws, as well as the understanding of the rule of law.

The feudal inequality remains in the UK.

From that consent, the idea of political and legal equality emerges. A citizen participates equally in the public domain when they consent to and obey the law which expresses and recognizes their mutual political equality derived from their equal natural rights. In this approach, America is marked by the idea of and belief in political equality defined through a constitutional moment. Through political equality, America broke with the European imperial tradition, which was based on a natural and positive inequality derived from the absolutist view of the divine right of kings. Thomas Jefferson noted this difference in his defence of the American political system.

“That form which we have substituted, restores the free right to the unbounded exercise of reason and freedom of opinion. All eyes are opened, or opening, to the rights of man. The general spread of the light of science has already laid open to every view the palpable truth, that the mass of mankind has not been born with saddles on their backs, nor a favoured few booted and spurred, ready to ride them legitimately, by the grace of God.”[2]

The rule of law through a constitution tells Americans that no one was “booted and spurred” ready to ride them by their divine right. In particular, Americans believe and know, that no one is above the law, all are equal before the law, and all have to answer to the law when required.

Rule of law and respect for the law are mutually reinforcing

The rule of law was tested by a great civil war. In that war, America had to decide whether it would retain its constitution, the rule of law, or the Union would be destroyed so a slave state could emerge. The war and its outcome settled that question. Through it, Lincoln re-founded America on a different basis, which expressed the reverence for the laws needed to sustain America’s political institutions.

Let reverence for the laws, be breathed by every American mother, to the lisping babe, that prattles on her lap–let it be taught in schools, in seminaries, and in colleges; let it be written in Primers, spelling books, and in Almanacs;–let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice. And, in short, let it become the political religion of the nation; and let the old and the young, the rich and the poor, the grave and the gay, of all sexes and tongues, and colors and conditions, sacrifice unceasingly upon its altars.[3]

Founded in a revolution and re founded in a brutal civil war, America’s great experiment in self-government based on the rule of law would flourish. The constitution, the highest law, survived. However, it has continued to be tested. Two cases in particular show that the rule of law, with the belief that no one is above or beyond the law, is a core political institution for America that expresses, defends, and sustains the common good.

Nixon

The first case is that of President Richard Nixon. He refused, for a full day, to respond to a subpoena by the House Committee investigating him for Watergate break-in. They asked that he turn over documents required for their investigation. For several hours, he refused. Then, at the last minute, he complied. Barbara Jordan, on the panel, that would later vote to impeach Nixon, captured the constitutional tension quite eloquently. She said

“The fact is that on yesterday, the American people waited with great anxiety for eight hours, not knowing whether their President would obey an order of the Supreme Court of the United States.”[4]

Nixon complied with the court’s order. He respected the rule of law. However, Nixon resigned before he had to answer the law’s questions.

Clinton

The second case refers to President Bill Clinton. Unlike Nixon, Clinton would answer the law’s questions. After extended legal negotiations, he agreed to testify in the investigation into the Monica Lewinsky case. The public saw a sitting president sworn under oath to answer specific questions about his relationship with Ms Lewinsky. He was called before the law to given an account of his behaviour. He could not avoid answering the investigator’s questions. Clinton answered the law’s questions.

“I did not have sexual relations with that woman Monica Lewinsky.

He could not opt out of them. Neither President said “I will decide what questions are appropriate or that I will answer?” Neither President attempted to tell the court what they would or would not answer. Despite their great political and institutional power, both presidents bowed before the law. They saw the Constitution above their status. They served the Constitution. The rule of law would be respected. They would answer the law’s questions.

What happens in the UK?

One would expect that the same would happen in the UK where the rule of law is supposed to have been born. For the most part, it does. We are encouraged to believe that the executive, the powerful, the privileged bow before the law so that anyone appearing before the court, under the rule of law, would answer its questions. They would not be entitled, allowed, or empowered to decide what questions they would answer or were appropriate.

If the Queen is above the law, how can we have rule of law?

In the UK the rule of law does not exist to the same extent, if at all, as it does in the US. For a start, the Queen is above the law.[5]

“Given the historical development of the Sovereign as the ‘Fount of Justice’, civil and criminal proceedings cannot be taken against the Sovereign as a person under UK law. Acts of Parliament do not apply to The Queen in her personal capacity unless they are expressly stated to do so.” [6]

She is only covered by laws that directly apply to her otherwise she obeys the laws voluntarily. As she is above the law, a key tenet of the rule of law—equality before the law is missing. Her example suggests that obedience of to the law is a function of proximity to the Crown. Consider the following case.

If the Queen (and Parliament) are above the law, are their servants above the law?

During the Phone Hacking trial, where former News International employees Andy Coulson and Rebekah Brooks faced charges relating to phone hacking, one of the witnesses called to testify was Sir Michael Peat, Private Secretary to Prince Charles from 2002 to 2012. At the trial, the Crown’s QC asked whether an entry in the journal indicated whether he had an affair. He refused to answer the question. He argued that he did not see the relevance of the questions. Here is how Peter Jukes described the scene.

“Justice Saunders tried to placate him: “Your evidence is relevant to this case,” he told Peat. “However much you were nagged by the police, we would be grateful if you would spend a few minutes of your time to answer questions.” But Peat wasn’t having it. He said he’d be the judge of what he would answer: “As long as I feel it is relevant,” he said.” [emphasis added]

It was one of the rare moments the hacking trial judge showed the steel beneath the charm, a flash of the ceremonial sword on the wall, usually obscured by his silk robes. “It is not your decision if it is relevant or not,” Justice Saunders said: “It is not your decision. It is my decision – because I am the judge in this court. Let’s have the jury back in….”

As the jury returned, Justice Saunders explained the reason for the hiatus: “We have done our utmost not to require people to answer questions about their personal life. Sir Michael does not want to answer the question. We will carry on without the question being asked.” He indicated the Crown barrister should continue. Bryant-Heron said flatly: “I have no further questions. Thank you my lord,” and sat down.” [7] [Emphasis added]

The judge and the QC appear to collude in not applying the rule of law. The judge does not require him to answer the question nor does the QC revisit the question. Sir Michael does not want to answer the question, as he does not see the relevant, so the QC and Judge allow him to avoid it. He does not have to obey the law because he does not believe it is relevant. He will decide what is relevant not the court, nor the judge, nor the QC. No one responsible for the rule of law, the judge or the QC challenged him. They simply accepted that the question was not relevant because Sir Michael had said so.

In the UK, the behaviour passes with barely a comment. I can find only one reference and it does not focus on Sir Michael’s refusal to obey the law. It suggests that the judge ruled he did not have to answer the question, which reverses the exchange. The judge is doing Sir Michael’s bidding as he was not asking the judge for permission.[8] The judge may have reminded Sir Michael of the law and the court, but he did not make him obey either. Moreover, the QC did not repeat the question and enforce the law and the court’s authority. Perhaps discretion is the better part of valour when the law defers to power. Can we think why this is acceptable?

Are inappropriate questions a sign the law rules?

The behaviour might be excusable if we accept that questions are inappropriate, which is for the witness to decide. If we do, which seems doubtful, is this approach open to less powerful witnesses? We have seen a rape victim, a vulnerable person, on the stand being forced by the judge to answer excruciatingly sensitive questions. If we compare this to the case of Abby, a 13-year-old girl who was questioned aggressively by seven consecutive barristers every day over three weeks, we have to wonder why Sir Michael was granted such discretion.[9] If they fail to answer the question their character and evidence are called into question. The court never hesitates to require an answer. The witness does not get to say “I do not think that the question is relevant.” The situation became so problematic with vulnerable witnesses being traumatized or even driven to suicide by the approach that the government had to issue guidance to restrain the behaviour.[10] However, the event appears to suggest that the weak seem to have a different status before the law and the court. The key difference appears to be the status of the witness and their attitude to the rule of law. The weak and vulnerable are not educated to view the law as an inconvenience. They are educated to obey the law.

Would anyone get away with this in the US?

In the United States, the political and legal cultures are different from the United Kingdom. The arrogance before the law would not be accepted for the law is king.[11] Even the President of the United States respects the law and the court. In the UK, the powerful do not respect the law in the same way. The Queen, as we note, is above the law and the Royal Household[12] is equally exempt to the extent that they, not the court, the judge or the QC, will decide what questions are relevant.[13] Instead, it is the law that bows before the powerful. It would appear that the UK’s courts are imperious to the weak and courteous to the powerful.[14]

One wonders if any other witnesses would be allowed to act as imperiously before the court. Then again, the Judge swears an oath of obedience to the Crown not to the law or to the people. If the Crown’s representative can display such contempt of the rule of law, the court’s authority, it makes us understand what Thucydides said 2500 years ago. “The strong do as they will, the weak do as they must. Only between equals is there justice.” The law creates equality, an equality that exists superficially, if at all, in the United Kingdom.

The strong do as they want, is what the law tell us in the UK?

The Royal family is not the only group beyond the rule of law. Parliament also exists beyond the law.[15] On an individual level, though, other Crown officials show a similar attitude and behaviour toward the rule of law. Consider the way Crown officials react to the Freedom of Information Act (FOIA). We know from the article “Most powerful person you have never heard of” that the law is flouted regularly, repeatedly without any concern of censure.[16] There is no desire to meet the letter or the spirit of the law when it constrains the political imperative. The approach reflects an attitude which becomes a common practice regarding the rule of law. Why is it a surprise that a civil servant would flout the FOIA when their ministers hold the law in similar disdain? Their behaviour suggests that the law only applies to those who lack the power to avoid it. The powerful do as they want while the weak do as they must.

Does repetition make a reality?

Despite their behavior, the UK’s legal establishment talks avidly of the rule of law as if repetition makes it a reality. They talk of a pious fraud. The rule of law exists by a fiction as it preserves the regime. The law serves to protect the powerful to maintain the public order without overt coercion. What supports this vision is the illusion that the Crown exists by consent and not force or fraud. The Crown exists by force even though it rules according to the law[17] especially when measured against the standard of the Declaration of Independence.

Is the rule of law mask for the arcana imperii?

The hollowness of the rule of law is arcana imperii, the secret knowledge, that drives the regime as the powerful know they are not beholden to the law. The laws constrain the weak as they serve powerful. The contrast with the United States could not be greater. In a land of a written constitution that is the highest law in the land no one would dare to act imperiously toward the law. In the UK where the Queen is the source of the laws so she obeys the laws voluntarily or by choice, the imperious relationship to the law remains.

When the law apologizes to power can we say that we have the rule of law? Is it that the law serves privilege for it rules by law?[18] Perhaps it is time the UK had the rule of law or is that too revolutionary of idea?

(Magna Carta is often suggested in the popular imagination that it embodies the rule of law. The illusion proves useful on occasions such as this.)

[1] http://www.claremont.org/crb/article/aristotle-and-locke-in-the-american-founding/ (accessed 5 February 2016)

[2] https://www.loc.gov/exhibits/jefferson/214.html

[3] http://www.abrahamlincolnonline.org/lincoln/speeches/lyceum.htm

The Perpetuation of Our Political Institutions: Address Before the Young Men’s Lyceum of Springfield, Illinois January 27, 1838

[4] Barbara Charlene Jordan Statement on the Articles of Impeachment delivered 25 July 1974, House Judiciary Committee http://www.americanrhetoric.com/speeches/barbarajordanjudiciarystatement.htm

 

[5] http://www.royal.gov.uk/MonarchUK/TheMonarchyToday.aspx

[6] https://www.royal.gov.uk/MonarchUK/Queenandthelaw/HowUKandEUlawaffectTheQueen.aspx

[7] See Peter Jukes Beyond Contempt p101-102).

[8] http://www.pressgazette.co.uk/hacking-trial-told-prince-charles-former-aide-does-not-have-answer-affair-question

“Another note was also found at the address with Peat’s name and “affair?” written above, the court heard.

Mark Bryant-Heron, counsel for the prosecution, asked Peat whether he was “engaged in an affair” in January 2003.

“Could you just explain the relevance of this question?” he replied.

The jury, which was briefly sent out of the courtroom, was told by the judge Peat had argued the question was not relevant and did not have be answered.”

 

[9] http://www.theguardian.com/law/2013/may/19/lawyers-oxford-abuse-ring

[10] One has to note that the situation lead to the Crown reviewing the way vulnerable and young victims were handled. http://www.felicitygerry.com/wp-content/uploads/2014/10/IARS-Vulnerable-witnesses-dignity-and-respect-FRGQC-FINAL.pdf one wonders if such guidance will be issued for powerful, well-connected witnesses.

[11] Tom Paine made this argument in Common Sense.

“But where, say some, is the King of America? I’ll tell you, friend, he reigns above, and doth not make havoc of mankind like the Royal Brute of Great Britain. Yet that we may not appear to be defective even in earthly honours, let a day be solemnly set apart for proclaiming the Charter; let it be brought forth placed on the Divine Law, the Word of God; let a crown be placed thereon, by which the world may know, that so far as we approve of monarchy, that in America the law is king.” [emphasis added]  http://oll.libertyfund.org/quote/308

[12] The Royal Household is covered by the Crown’s prerogative to provide assent or consent to legislation. The Crown has refused consent to some legislation that would have limited its power or authority. In particular, the case in 1999. “In one instance the Queen completely vetoed the Military Actions Against Iraq Bill in 1999, a private member’s bill that sought to transfer the power to authorise military strikes against Iraq from the monarch to parliament.” http://www.theguardian.com/uk/2013/jan/14/secret-papers-royals-veto-bills

[13] The Queen and her Royall Household are exempt from most laws. They have the power to withhold consent to the laws, which means Parliament cannot pass them. The most recent example, is when Parliament considered a bill that would transfer the war making authority from the Queen to Parliament. The Queen and the Prince (her heir) can withhold their consent to any law. For more on this power see this guidance note: https://www.gov.uk/government/publications/queens-or-princes-consent

[14]One only note the severity and alacrity with which the Crown dispense justice against those who were caught participating in the London Riots 2011. http://www.theguardian.com/uk/2011/aug/11/riots-arrests-courts-prisons-justice Some praised it declare that it helped defuse the riots. http://www.telegraph.co.uk/news/uknews/crime/8730448/Swift-justice-took-steam-out-of-riots-says-chief-constable.html yet even that contained a note of caution that proportionality was being lost.

[15] Lord Neuberger recognized this point when he quoted Lord Justice Laws,

“It may be that my perceptive and far-thinking colleague, Lord Justice Laws, will one day turn out to be right when he argued that, through judicial development of the common law, ‘a gradual reordering of our constitutional priorities [may] bring alive the nascent idea that a democratic legislature cannot be above the law.61’ But we are not there yet.” (the footnote is from: Laws, Illegality and the Problem of Jurisdiction, in Supperstone & Goudie (eds), Judicial Review, (Butterworths) (1997) 4.17 cited in Goldworthy, The Myth of the Common Law Constitution in Edlin (ed), Common Law Theory (CUP) (2007) at 204) http://webarchive.nationalarchives.gov.uk/20131202164909/http://judiciary.gov.uk/Resources/JCO/Documents/Speeches/mr-speech-weedon-lecture-110406.pdf

[16] http://www.bbc.co.uk/news/uk-politics-33431580

[17] The UK regime is not founded with a constitutional moment. The Crown constituted itself through its natural right prerogative that the strong rule the weak. Even the revolution of 1689 which did much to constrain the Crown only served to place it on a surer foundation to give it a greater validity to rule.  See for example, Vernon Bogdanor The Crisis of the Constitution  http://www.consoc.org.uk/wp-content/uploads/2015/02/COSJ2947_The-Crisis-of-the-Constitution_WEB_FINAL.pdf see also http://www.newstatesman.com/politics/2015/04/vernon-bogdanor-crisis-constitution

[18] For a brief overview of the difference between “rule by law” and “rule of law” see http://branemrys.blogspot.co.uk/2005/08/rule-of-law-vs-rule-by-law.html