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The Rule of Whose Law? Distorted principles in the Rwanda debate

As opponents of the Safety of Rwanda Bill prepare to do battle in the House of Lords next week, Anthony Speaight KC, highlights the distortions deployed by the Bill’s critics in claims that the Bill contravenes the ‘rule of law’. Neither international law nor human rights law, says Speaight, feature in the orthodox conception of ‘the rule of law’.

No fewer than 20 peers criticised the Safety of Rwanda Bill as contrary to ‘the rule of law’ during its second reading in the House of Lords. In a similar vein the Lords Constitution Committee published an assessment of the Bill laced with warnings of it being ‘constitutionally improper’ and incompatible with the rule of law.

Such assertions reflect the remarkable way in which a distorted meaning of ‘the rule of law’ has entered our political mainstream.

This distortion can be traced to a book published by Lord Bingham in 2010.  He began by setting out an orthodox definition of ‘the rule of law’:

“that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered by the courts”

He then added eight principles, two of which went quite outside the definition.  His 5th principle was: ‘The law must afford adequate protection of fundamental human rights’.  To show the breadth of what he intended thereby, his text discussed each one of the rights in the ECHR.  To assert that the law must have a particular content is to say something beyond the proposition that there be a framework of accessible law.

And it has been Lord Bingham’s 8th principle which has most profoundly revolutionised thinking:  ‘The rule of law requires compliance by the state with its obligations in international law as it national law.’   This is a proposition on a quite different plane: it is essentially an exhortation to a government, not a description of a law-based society.

Of course, upholding the rules-based international order and respecting human rights are fine values which most of us support.   But ‘the rule of law’ is drained of any utility if it becomes indistinguishable from separate political concepts.  For that reason there had been a negligible basis in scholarship for Lord Bingham’s ‘principles’.

Moreover, his theory leads to bizarre consequences.  There is an example in the Constitution Committee report:

“We reiterate that where domestic and international law diverge, the duty reflected in the Ministerial Code to comply with international law remains.”

That can mean that a minister who implements a statute of parliament is breaching the rule of law.   The Committee cites Lord Bingham as the justification.

Moreover, international law and human rights sometimes pull in different directions.  In the case of Kadi a state applying mandatory UN sanctions – an obligation of international law – was held by the Luxembourg Court to be infringing human rights.  So one is condemned by the 5th principle if one takes one route and by the 8th principle if one takes the alternative.

A further recent expansion of the supposed meaning of the rule of law now contends that it is infringed by legislation to enact an irrebuttable presumption that a country is safe for asylum purposes.  A statute in 2004 did that exact thing without the rule of law being affronted.

Britain is not alone in experiencing the conversion of what were once meaningful constitutional concepts into sloppy notions.  Something similar has happened in France to their equivalent concept of état de droit.  But in France a serious intellectual fight back has begun.   Bertrand Mathieu, a distinguished constitutional law professor at the Sorbonne, has published Le droit contre la démocratie?, a substantial work  in which he argues that état de droit must not be twisted so as to undermine representative government.

Next week the Rwanda Bill will be back in the Lords for its report stage.  Its supporters and opponents both have serious arguments available to them.   Is it too much to hope that the misuse of so important a political value as the rule of law will be exposed and that its true meaning carry the day?

 

Anthony Speaight KC is a bencher of Middle Temple and Visiting Professor in the School of Law, University of Surrey. He has served as a member of the Government Commission on a UK Bill of Rights. His legal textbooks include The Architect’s Legal Handbook (Editor), 2021. His recent papers include The Forgotten Human Right: the Right of Parents relating to Children’s Education (with Shannon Hale) (2023) and, for Politeia, Reforming Legal Aid – The Next Steps (2022).

His new publication, The Rule of Law, Rwanda and the British Constitution, will be published by Politeia.  You can see an advance copy here

Anthony Speaight KC

Anthony Speaight KC is a bencher of Middle Temple and Visiting Professor in the School of Law, University of Surrey. He has served as a member of the Government Commission on a UK Bill of Rights. His legal textbooks include The Architect's Legal Handbook (Editor), 2021. For Politeia he has written: The Rule of Law, Rwanda and the British Constitution (2024) and Reforming Legal Aid - The Next Steps (2022).

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