Playing politics with the rule of law

It ought to be uncontroversial that in democracies founded on the rule of law, the government can do only those things the law authorises it to do and that, as US Chief Justice John Roberts put it, the courts’ job is to ‘check the excesses’ of the executive. 

The Vice-President, however, sees things differently, describing Roberts’ view as ‘profoundly wrong’ and arguing that it is inappropriate for judges to prevent elected politicians from enacting their mandate. 

The mood music emanating from the government on this side of the Atlantic is very different, as the Attorney-General’s full-throated defence of the rule of law in his 2024 Bingham Lecture attests. Yet it would be complacent to assume that the UK is inevitably immune to the authoritarian assault that some other liberal democracies are experiencing. Indeed, as the next, potentially era-defining general election begins to loom distantly on the horizon, the shape of the debate to come is becoming clear. 

According to the populist playbook, international law is a threat to state sovereignty. On that view, the deliberate flouting of international obligations (see, for example, the now-defunct Rwanda scheme) is transformed from a breach of the rule of law (as Lord Bingham unambiguously regarded it) into a legitimate reassertion of sovereignty. Such thinking also lays the foundation for the type of argument recently advanced by Kemi Badenoch, who sought to justify her view that the UK will ‘likely’ need to withdraw from the European Convention on Human Rights by contending that membership is putting ‘our sovereignty at risk’. 

At the domestic level, Badenoch argued in the same speech that ‘Ministers need to be able to make decisions that aren’t endlessly challenged’ and that the problem of ‘lawfare’ — which she defined as the use of litigation, including judicial review, to ‘attack democratic decisions and common sense’ — must be tackled. Others on the right go further. Former MP turned think-tank president Douglas Carswell recently argued that the UK’s next right-wing government must ‘assert control over the administrative state’, including by limiting judicial review and authorising ministerial dismissal of judges ‘whose rulings are based on their activism rather than strict legal interpretation’. And if that sounds far-fetched, recall that Dominic Raab, when he was Justice Secretary, suggested legislating to create a ‘mechanism’ for overturning judicial decisions with which the government disagreed. 

By placing the rule of law and ‘sovereignty’ in specious opposition to one another, such arguments seek to fundamentally reframe discourse about the constitution. Legal doctrine and institutions that cabin executive freedom are recharacterised as undemocratic impositions that must be resisted. Breaching or withdrawing from international obligations becomes a constitutional imperative rather than a political choice. And the invocation of parliamentary sovereignty to statutorily shield the executive from ‘improper’ judicial scrutiny becomes not just legitimate but vital. 

Challenging such populist tropes has never been more important. As the Attorney-General recently argued, international law, far from being in tension with state sovereignty, is a precondition for it. Choosing to be bound by obligations such as those that flow from the ECHR is therefore an exercise, not a denial, of sovereignty. Meanwhile, the notion that judicial review is an undemocratic affront to the executive’s role stands the constitution on its head — as, arguably, does the supposition that parliamentary sovereignty can legitimately be deployed to free the government from judicial control. As the late Lord Justice Laws observed, Parliament can only be sovereign, in the sense of having the capacity to make laws properly so called, if there is an independent judiciary capable of interpreting and curating such laws, including those that define and limit the government’s powers. On that view, the rule of law, including the judicial oversight of government that it entails, is a prerequisite of, not a threat to, parliamentary sovereignty. 

Such issues have never been definitively tested in British courts. That is no accident in a constitution that is premised on adherence to uncodified, often unenforceable norms, and which relies to an unusual degree on constitutional actors doing the ‘right thing’, exercising restraint and exhibiting mutual respect. If, however, events elsewhere and domestic politics’ direction of travel are any guide, we may now be standing on the brink of an era that will test the wisdom and constitutional resilience of such arrangements to an unprecedented degree. The need to make the positive case for the rule of law has never been more pressing than it is today.