Is the rule of law safe in the western democracies?

Graham Ferris, External Supervisor NLS, https://www.ntu.ac.uk/staff-profiles/law/graham-ferris

The rule of law has been explained in various ways, but most accounts agree it requires that:

A. Everyone – including those acting for the state or powerful companies – are subject to law, and can be forced through court action to obey the law.

B. State officials act within their legal powers and do not have unlimited discretion but can be held to account through the courts.

C. Everyone can use the courts to defend and assert their rights.

D. Some accounts of the rule of law include basic rights be respected – such as those protected by the European Convention on Human Rights.

E. For the rule of law to be effective it requires honest and competent judges and honest and competent lawyers. Lawyers should not collude with clients to deceive courts, or to break the law, or to destroy evidence, or to bring the rule of law into contempt.

The modern conception of the rule of law is associated with the rise of the western democracies – in the USA, Europe, the UK, Canada, and Australasia.

There is reason to fear that the rule of law is under threat in the very countries that gave birth to the modern idea of the rule of law, and who proudly proclaim their adherence to the rule of law, and who advocate for the rule of law to less wealthy and powerful states.

And that threat does not only come from populist politicians and overly powerful private interests but from the practises of lawyers as well.

A few examples are in order (these are UK examples but examples from Hungary, Poland, the USA and elsewhere could easily be collected).

When the British Courts upheld the Constitution in the Miller litigation a widely read and influential newspaper accused them of being enemies of the people and published their pictures and personal details in a front-page attack on them (Daily Mail, 4 November 2016).

It is now clear that members of the UK government and their advisers did not obey the laws they imposed during the Covid 19 lockdowns but acted as if they were above the law.

The Post Office – and the lawyers they retained or employed – prosecuted hundreds of sub-post masters using evidence they knew to be flawed and of questionable worth, keeping these doubts from the courts. This led to many deaths, bankruptcies, blighted lives, and unjust periods of imprisonment.

Powerful private interests have pursued journalists and others through the courts in litigation conducted by their lawyers aimed at silencing critics through the costs and anxieties of litigation in the British courts, such oppressive litigation is common enough to have an acronym: SLAPPS (Strategic Litigation Against Public Participation).

The Solicitors Regulation Authority (SRA) has pursued lawyers who have been criticised by the government because they acted for overseas nationals making allegations against British troops in an aggressive manner and seemingly accepting the legitimacy of political demands upon their disciplinary activity.

It is normal in the public and private sectors for employers to breach employment law and terminate employment of employees and to keep this illegality private through widespread use of Non-Disclosure Agreements (NDAs) as advised by their lawyers.

Criminal defendants are finding it harder to obtain advice at the police station and legal representation due to savage cuts to criminal legal aid and the loss of more and more firms who can no longer afford to provide criminal defence work.

Civil legal aid barely functions for most people’s legal needs.

Lawyers acting for asylum seekers are subject to political criticism and labelled as ‘lefty-lawyers’ for performing their duty within the law.

Client confidentiality is used by lawyers as a tool for obscuring from public view their activity in lobbying.

Lawyers have developed what are sometimes called techniques of “creative compliance” of the law, which consists of the deliberate structuring of transactions in ways that enable clients to obtain a prohibited outcome whilst avoiding technical breaches of the law.

To return to our accounts of the rule of law:

A. Everyone – including those acting for the state or powerful companies – are subject to law, and can be forced through court action to obey the law.

Both state actors (Covid lockdown and NDAs) and private actors (through NDAs and SLAPPS) act in illegal ways because they feel they are above the law.

B. State officials act within their legal powers and do not have unlimited discretion but can be held to account through the courts.

The SRA, attacks on lefty lawyers, and withdrawal of state funding are used to protect state actors from legal accountability.

C. Everyone can use the courts to defend and assert their rights.

Most people cannot afford to use the courts.

D. Some accounts of the rule of law include basic rights be respected – such as those protected by the European Convention on Human Rights.

Freedom of expression is threatened by the use of SLAPPS.

Judges and lawyers are attacked for doing their duty, and lawyers are pulled towards collusive behaviours that undermine the rule of law.

So, the rule of law is not safe in those places it was born but under threat by forces in both the public and the private realm.

And lawyers are both under pressure for resisting these threats and themselves enabling those who threaten the rule of law.

Is it time to make threats and defences of the rule of law an organising theme in the legal curriculum?

Is the rule of law safe in the western democracies?

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