Dicey? Bingham? Or perhaps you prefer the Wrightean doctrine of the Rule of Law as it operates in the UK? For Jeremy Wright (the Attorney General for those who’ve forgotten – or perhaps never knew) has given us his thoughts on this complex and contested legal principle.
Generally “the rule of law” might be boiled down to a simple phrase: No one is above the law – even the Government. This though, is not the quite message Mr Wright wishes to get across. His speech “on the UK’s long commitment to the Rule of Law” was delivered at the London Law Expo in the City of London. The Expo is a sort of legal/business fest with, this year, Dragons’ Den man James Caan as keynote speaker. Wright’s intended audience, therefore, was the business community – specifically the international business community. What excites Wright is less Britain’s commitment to the rule of law, forged through revolts and rebellions and the slow painful birth of a democratic society. No, what excites him is this: that
“the numbers show just how successful the legal services sector has been: in 2012 it was worth over £20 billion, or 1.5% of UK GDP and contributed some £4 billion in export value. There were over 300,000 people employed in our legal services sector with over 200 foreign law firms operating in London and elsewhere in the country”.
Britain, for these reasons, is not just a place to do business. It is a place to do law. So the point of the rule of law is: it’s good for business. “Our long commitment to the rule of law I believe, is of central importance to the British economy”. For Wright has very little interests in the philosophy or practice of the rule of law; rather he is concerned to established Britain’s (or perhaps only London’s) unique selling point: “All companies know that they will be judged by clear rules applied in accordance with the law.” The rest of the speech is a promotion of UK plc’s legal services. Somehow he even manages to spin the Libor scandal as a “good” story:
“Thanks to the efforts of the SFO and others, a clear message is being sent to the world that this cannot happen. No matter how complex the crime and the challenges in uncovering it, we can market ourselves on the commitment of our law enforcement authorities to tackle the most challenging cases.”
The fact that Libor rigging has been going on for years – possibly since at least 1991 according to one trader, hardly says much for our top financial institutions’ respect for the law or our law enforcement bodies’ ability to … well, enforce the law. Be that as it may, the Wrightean theory of the rule of law is not about the rule of law at all. What is wholly missing is any acknowledgment of the real, burning rule of law question facing Britain: whether the Government of the United Kingdom considers itself subject to the rule of law.
Restraint and trade
Let us move, then, to the Lord Chancellor’s office where we have evidence of the emerging doctrine that says it doesn’t. Chris Grayling in preparing to issue contracts for a privatised young offenders’ training facility (Secure Colleges or “super child jail”) is to defy the law (as set out in R (C (A Minor)) v Secretary of State for Justice  EWCA Civ 882) which said that it is illegal to use force in such youth facilities “to maintain good order and discipline”. This wording was added by Secure Training Centre (Amendment) Rules 2007 which the Court of Appeal in C found in 2008 had been introduced unlawfully.
The rules sanctioning force were introduced following the death in 2004 of Gareth Myatt, a detainee in Rainsbrook Secure Training Centre, who died while being restrained by staff. It was found at that time that there was no legal sanction for the restraint used. So the government order was intended, not to bring a halt to the practice that had led to a death, but to legalise it. The result (whether or not the intention) would be to render private companies running such facilities beyond prosecution and largely immune from civil liability for such restraint when used for discipline (in contrast to preventing escape or self harm or inmate violence, where restraint was legal).
The rationale for changing the law of the land was presumably that private companies taking these contracts would be unwilling to do so if there was a risk of profits being leeched away by compensation and legal costs every time an inmate suffers injury from an over-enthusiastic (or simply out of control) staff member exerting “discipline”.
And far from upholding the rule of law in the Wrightean sense (ie “commitment of our law enforcement authorities to tackle the most challenging cases”) the Government went on to refuse to reveal the details of which children had been subject to illegal restraint methods while held in Secure Training Centres. In other words the Government stymied an attempt to take legal action against those concerned in illegal restraint. (See The Children’s Rights Alliance for England v Secretary of State for Justice  EWHC 8 (Admin).
So companies, including those applying for government contracts, can take away from all this, not that the rule of law applies in Britain or that “all companies know that they will be judged by clear rules applied in accordance with the law”, but instead that the Government will protect them as far as lawfully possible in order to ensure their contracts do not come hampered by costly legal risks.
Wright, in his discourse, makes passing reference to Magna Carta – though not specifically to that part of Chapter 29 that says: “We will sell to no man … Justice or Right”. It is pretty clear, according to the Wrightean doctrine and that of Chris Grayling, that we will sell justice – but thankfully, only to the highest bidder.
Interesting: interview by Carl Gardner with John Cooper QC on the government’s conflation of “the rule of law” and international business opportunities rather than legal principle here
Criminal Justice and Courts Bill The Government is currently (October 2014) pursuing another attempt to legalise “reasonable force” for disciplinary purposes through the Criminal Justice and Courts Bill. If this passes it will not constitute an offence against the rule of law since in Britain the Westminster Parliament is deemed sovereign. It can, notoriously, through primary legislation do anything – order the deaths of all blue-eyed babies, ban smoking in Paris – and certainly sanction force against vulnerable young people. (All this is examined here: Bingham’s rule of law) Parliamentary legislation is, however, currently subject to the European Convention on Human Rights.
Neither in Britain nor Strasbourg can judges strike down the primary legislation of the Westminster Parliament but they can declare it incompatible with the ECHR and in effect unlawful. Here is what the Conservatives think about that: Conservative Bill of Rights. Anyone interested in the UK Bill of Rights will be interested in this too: The State v the People. For more on the Government’s attitude to the rule of law see Alrich passim.
Parliament’s Human Rights Select Committee gives its view on the use of force for discipline here. It recommends removing the provision from the Bill and instead making it clear that force is only to be used as a last resort. It says: “It is incompatible with Articles 3 [on inhuman treatment] and 8 [respect for private life] ECHR for any law, whether primary or secondary legislation, to authorise the use of force on children and young people for the purposes of good order and discipline.”
Note: A set of government fact sheets on the bill can be found here including one on Secure Colleges.
Relevant provisions in the Bill
8: A secure college custody officer performing custodial duties at a contracted- out secure college has the following duties in relation to persons detained there—
(a) to prevent their escape from lawful custody,
(b) to prevent, or detect and report on, the commission or attempted commission by them of other unlawful acts,
(c) to ensure good order and discipline on their part, and
(d) to attend to their well-being.
9: (1) A secure college custody officer performing custodial duties at a contracted- out secure college may search the following in accordance with secure college rules—
(a) a person who is detained in the secure college,
(b) any other person who is in the secure college or who is seeking to enter the secure college, and
(c) an article in the possession of a person described in paragraph (b).
(2) The power under sub-paragraph (1)(b) does not include power to require a person to submit to an intimate search (within the meaning of section 164(5) of the Customs and Excise Management Act 1979).
10: If authorised to do so by secure college rules, a secure college custody officer may use reasonable force where necessary in carrying out functions under paragraph 8 or 9.
AV Dicey on the rule of law
a. No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the courts of the land;
b. No man is above the law; whatever his rank or condition is, he is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals;
c. It is because England has a constitution that the personal rights and liberties of individuals are always secure. This security comes from being able to go to the law courts to remedy any breach of these rights and liberties.