No, Boris isn't breaching the rule of law. Here's why

11 September 2020

12:00 AM

11 September 2020

12:00 AM

Does the government threaten the ‘rule of law’ by asking parliament to vote its way out of a Brexit treaty? The Society of Conservative Lawyers, which has advised Tory thinking since 1947, has released this statement from some members of its executive (on which I also sit) saying they are ‘deeply troubled’ by the government ‘knowingly and deliberately breaching’ the rule of law. I agree with my colleagues that ‘upholding the rule of law is a fundamental principle of sound government’ but I do not consider that there has been a breach of the rule of law in this matter. Briefly, here’s why.

The ‘rule of law’ means that all in society, including the government, are subject to the law, and there must be a lawful basis for what the government does or omits to do. Abiding by our obligations under international law, including an international treaty obligation, is part of the rule of law (and this is so regardless of whether domestic law needs to be made or changed in order to implement a treaty). Absent anything else, a government should do so.

The mere act of laying a bill before parliament which, if it were passed into statute, would breach a treaty obligation (and would amend domestic legislation bringing that treaty obligation into effect in domestic law) is not itself a breach of the treaty or of international law. Nor would merely laying such a bill be itself a breach of the rule of law.

If the legislature passed such a bill and it became an Act of Parliament, the Rule of Law requires the government to proceed in accordance with it. That is what parliamentary sovereignty, or to be more precise the sovereignty of the Crown in Parliament, means. Whether passing such an Act of Parliament gives rise to a claim under the treaty (to which the domestic legislation is unlikely to be any defence) is a separate issue. But again, there is no breach of the rule of law.

And what is the alternative proposition? That a government is precluded by the rule of law from even laying a bill before parliament which, if passed, would put the UK in breach of a treaty obligation? Or is it to be said that the rule of law requires that such an Act of Parliament should itself be deemed by our courts to be unlawful or of no consequence?

I see no legal basis for any such proposition. Such a bill and resultant Act of Parliament might be unwise or foolish or damaging to the UK’s interests (or wise or clever or a show of strength) – those are matters of political debate. But those are not legal questions. Nor can it make any principled difference to the analysis that – to take two points which have been made repeatedly over the past few days – the treaty in question was signed recently, or by the same government.

Moreover, it is a short step from the analysis that the rule of law would constrain such legislation, or would rob the consequent Act of Parliament of effect, to Lord Carnwath’s proposal (see the Supreme Court’s May 2019 decision in the case concerning the availability of judicial review of decisions of the Investigatory Powers Tribunal, at paragraph 144) that in some cases the courts might decline to give effect to a clause in an Act of Parliament ousting judicial review ‘regardless of the words used’. That would be unprecedented, and a dramatic and unwelcome departure from the long-established principle that the Crown in Parliament is sovereign.

Contracts should be honoured and treaties should be kept: so says the (different) principle of pacta sunt servanda. But a breach of contract does not itself entail a breach of the rule of law, and breaching a treaty obligation because parliament has so legislated does not either.

None of this is to suggest – as some still say – that international law doesn’t exist, nor that treaties don’t matter: of course it does and they do. For its part, the government will argue that preventing part of the territory of the UK from being cut off economically justifies its approach.

But I do not base my argument on that contention. Rather, I assert a more basic – and (at least formerly) orthodox proposition: in our constitution, ultimate sovereignty lies with the Crown in Parliament. It is that sovereignty to which the government is answerable, and which the rule of law upholds.

I do not consider that there is a breach of the rule of law in the government’s approach. Whether it is wise or unwise is a different question – a political and not a legal one – and not the subject of this argument.

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