The Rule of Law

Do fundamental legal principles have a place in Britain's constitution?

Lady Justice (Source)

In my last essay, Lawful Revolution, I discussed a process which could lead to the monarch convening a Constitutional Parliament¹, so that dysfunctional institutions of government could be reformed even if the political establishment opposed it. I suggested that this might be a way of enshrining a set of overriding legal principles that all legislation and all government activity would need to be compatible with, constituting ‘the rule of law’.

In this essay I explore whether such a step is needed at the current time; and I discuss the implications of the existence of a constitutionally legitimate pathway to lawful revolution. (I use the term lawful revolution for a situation where a Constitutional Parliament which has been convened adversarially – i.e. against the wishes of the political establishment – enshrines in law a legal principle, or specific piece of legislation, which the political establishment had opposed.)

Separation of Powers

In principle, having three independent active branches of government – Parliament, Executive and Judiciary – should provide the combination of stability and flexibility which a mature society needs. In practice, though, in Britain today, the judiciary lack the confidence to be genuinely independent, while Parliament and the Executive have become so intricately entwined that neither can be depended upon to fulfil its proper function with integrity.

My impression is that the courts have recognised for many years that the UK’s constitution is incoherent and that many laws are incompatible with fundamental legal principles. However, they also recognise that they themselves have no democratic mandate and they are adamant that they must be subordinate to some higher authority. For practical purposes, the way our constitution is currently understood, the only higher authority they can recognise is Parliament. The courts have therefore subordinated their own legislative powers to Parliament’s and have regarded parliamentary procedures as being beyond their authority — which effectively puts Parliament outside the rule of law.

Conflicts of interest

In a previous article, Essential Functions of Government, I suggested that, in a well-constituted system, the three active functions of government (judicial, legislative and executive) needed to be monitored by some body fulfilling a passive, representative function; and that there would be, in addition, a normally dormant function (which I call determinative) that determines the overall framework in which government operates on a daily basis, and a latent (reactive) function that exists solely to activate the determinative function when it is needed.

Unfortunately in Britain today, due to the way the institutions of government are structured and the operational rules they obey, there are multiple conflicts of interest:

• Parliament is responsible for all three of the legislative, representative and determinative functions:

  • making electoral considerations a factor in legislative decisions on both ordinary and constitutional law; and

  • making self-interest a factor in decisions on the rules governing how Members of Parliament themselves are elected, re-elected and removed from office;

• Parliament and the Executive are entwined through the custom of appointing Members of Parliament to paid positions in the Executive²:

  • compromising the parliamentary voting choices of those members; and

  • creating a temptation for executive decisions to be influenced by electoral considerations;

• The integration into parliamentary processes of the interests of political parties (through the whipping system) creates a temptation for Members of Parliament to consider party interests, instead of just the interests of the electorate, when they vote on legislation.

The fact that conflicts of interest can compromise the integrity with which decisions are made is so well known that I can’t imagine anyone arguing that they should not be avoided as far as possible. I therefore regard it as a fundamental principle of governance that, as far as possible, the institutions and processes of government should be structured so as to avoid conflicts of interest.

From this perspective, government in Britain cannot be properly brought within the rule of law without some fundamental restructuring of its central institutions. As things stand, though, it seems highly unlikely that such change would be initiated by Government or Parliament — in which case, the process described in Lawful Revolution would need to be triggered.

Ultimate Authority

Before looking for a way to initiate a lawful revolution, however, it’s worth considering whether the very possibility of it alters our understanding of the constitution.

As I see it, what puts Parliament outside the law is the fact that, in the prevailing paradigm, Parliament itself is the ultimate authority. The arguments I put forward in A Trust of Sovereignty showed that, potentially, there is a higher authority; but as long as that higher authority could only be invoked by Parliament, it was constitutionally irrelevant. It becomes relevant, however, as soon as the existence of a constitutionally legitimate process by which the higher authority might be appealed to, without prior approval from Parliament, comes into view: once they become aware of this possibility, the rationale for the courts and Government to regard the Westminster parliament as the ultimate authority ceases to hold.

It remains the case that the courts cannot order Parliament to change its procedures or amend legislation which conflicts with fundamental legal principles³. It seems to me, however, that this change of perspective puts the obligations of Ministers of the Crown in a different light.

Revolution or Evolution?

Under the current paradigm (in which the sitting Parliament is regarded as the highest authority) as long as MPs are not hauling them over the coals, Ministers can be presumed to be performing their duties satisfactorily and there is no reasonable possibility of them being found guilty of misfeasance for any action committed (or omitted) in full view of Parliament. Under the changed paradigm (in which ultimate authority is vested in a body which only sits occasionally, at need) that presumption no longer holds: if they wilfully violate a fundamental legal principle, Ministers now run the risk that, following a lawful revolution, they might be found guilty of misfeasance, even if their actions were explicitly condoned by Parliament.

I should make it clear that I wouldn’t expect the courts to make such a finding presumptively. What I’m suggesting is that, following a lawful revolution – i.e. once a Constitutional Parliament which has been adversarially convened has enshrined a specific legal principle – it may, in certain circumstances, be legitimate for a court to find that a Minister who wilfully violated a fundamental principle had been guilty of misfeasance.

The principle that laws should not be applied retrospectively would protect Ministers from such a charge in respect of most decisions taken prior to a lawful revolution. In my view, though, that rule would not exclude conviction for violating a principle that no sensible person, considering the question without prejudice, could reasonably have expected a Constitutional Parliament to reject.

To my mind, this possibility alters the dynamic significantly. If the conflicts of interest discussed above were brought to their attention, the Ministers responsible for ensuring that the constitution is ‘fit for purpose’ would need to consider that, if they took no steps to remedy the situation, they might in future be found guilty of negligence⁴.

Most of those conflicts of interest could be removed with relatively simple legislation, without needing to be explicitly endorsed by a Constitutional Parliament. However, separating the legislative, representative and determinative functions of Parliament would probably involve a significant departure from current practice which would justify convening a Constitutional Parliament once possible alternatives had been proposed.

1. In a previous essay, A Trust of Sovereignty, I argued that a parliament elected to sit temporarily in order to legislate solely on a specific constitutional issue (a Constitutional Parliament) would have a superior mandate, on that specific issue, to an ordinary parliament elected to sit more or less continuously for a period of years in order to legislate on whatever matters might arise.

2. Ironically, it was well understood in the past that there was an unacceptable conflict of interest in MPs being employed by the Crown, which led to automatic disqualification. As Wikipedia records:

Originally, the disqualification of office holders from Parliament came about as part of the long struggle to ensure that Parliament would remain free from undue influence on the part of the monarch. Since anyone receiving a salary from the Crown could not be truly independent, the House of Commons passed a resolution on 30 December 1680 stating that an MP who "shall accept any Office, or Place of Profit, from the Crown, without the Leave of this House ... shall be expelled [from] this House." The prohibition was strengthened over the following decades to bar MPs from simultaneously holding certain offices.

That prohibition was introduced as part of the struggle for power between Parliament and the Crown, when the Crown had the upper hand. Once Parliament had gained the upper hand, however, it was seen as an obstacle to parliamentary control.

Moreover, it quickly became apparent that if ministers of the Crown were to be meaningfully responsible to Parliament, they needed to be able to sit in the House of Commons. For this reason, someone appointed to an office of profit was only disqualified from continuing to sit in the House of Commons; it was possible for someone already in office to be (re-)elected to Parliament without relinquishing the office.

3. In a future post, I intend to look at what the obligations of the courts might be when they find some piece of legislation to be in conflict with fundamental legal principles.

4. The seriousness of a charge of negligence covers a very wide spectrum. I suspect that many people would not see obvious specific harms that might flow from a failure to ensure that our constitution is fit for purpose, and might therefore consider it a fairly minor infringement. I take the view that every aspect of government is shaped by the constitution and anything which significantly distorts it can be assumed to have massive consequences; and where flawed laws have the effect of empowering certain sections of society (such as political parties) at the expense of the broader population it constitutes usurpation of sovereignty and, if done wilfully, should be treated as a form of treason.