The Rule of Law - under fresh attack?
While perhaps an arcane, even Victorian-sounding term, the Rule of Law is incredibly important. It is essentially the framework that underpins an open, fair, and democratic society whereby everyone, including the Government, is considered equally subject to the publicly disclosed legal codes and processes.
It is equally important for businesses. They need to understand the legal framework in which they operate-how disputes will be resolved, how property rights can be protected, how they can be protected from unfair competition and so on. Above all, perhaps, they need to know what rights the Government may have to regulate their business and to be confident that the Government itself will be properly subject to the law. Confidence in the rule of law can be a large factor for businesses in deciding where to invest; businesses must be confident that the rule of law will apply in all its rigour when they deal with Government itself, whether when bidding to win a contract or, at a local level, in relation to a planning inquiry.
The role of the judiciary has for some time been a source of controversy. In 1977 a radical socialist, Professor Griffith, cast doubt on the judiciary’s neutrality from “the establishment”. Ironically the concern of the current administration is that most of the judges now form part of the “leftie lawyers” against whom it so often rails. Whereas Governments have often clashed with the courts (as the Labour Party found in the 1970s when trying to abolish grammar schools) the current Government is still smarting over its two defeats in the Supreme Court over the way it sought to steam-roller the Brexit process. It displays frequent frustration at judicial decisions to uphold the human rights of UK citizens even though these rulings were facilitated by an Act of Parliament, the Human Rights Act 1998.
The Government’s latest target is judicial review, a process whereby acts and omissions by Government officials and public authorities can be subjected to judicial scrutiny. Whereas some would see this as an essential part of the rule of law to prevent such officials and bodies acting arbitrarily, the Government seems to see it as an irritant whose scope must be radically reduced (no doubt the challenge via judicial review to the process of awarding PPE contracts was unwelcome). As Lord Pannick QC commented recently in a letter to the Times; “it is disturbing that the prime minister does not appreciate that the rule of law applies to ministers as well as everyone else”.
Of course, it is Parliament which is sovereign and not the courts. Although the role of the courts is to interpret rather than make new laws, the dividing line between the two can be fuzzy. But as Lord Pannick further stated, if the Government does not like a particular judicial decision, then it can reverse it, not by ministerial fiat as the Government might wish, but by passing an Act of Parliament.
