Dr Patrick O’Brien, Senior Lecturer in Law at Oxford Brookes University & Dr Ben Yong, Associate Professor in Public Law and Human Rights at Durham University – Written Evidence (ROL0006)

Executive Summary

1.     The defence of the rule of law is integral to the defence of democracy. It is an intensely practical matter. Too much time is spent on definition, but not nearly enough on how to sustain the rule of law.

2.     We suggest that an emphasis on guardianship treats the defence of constitutional norms – of the rule of law – as something remote from the everyday processes of government, as something that is an elite responsibility. A more practical responsibility follows from a commitment to the rule of law, however, one that extends to everyone in public life. This is a duty to foster and respect a culture of the rule of law. Defence of the rule of law is not simply a matter for elites. It is a matter for all of us.

3.     We see two threats to the rule of law in the UK: complacency and erosion. The first arises because the rule of law, though it requires no small effort to defend in an environment of constant attack, appears nonetheless to be stable. This very stability exposes those are required to defend the rule of law – politicians, officials, judges and lawyers – to political and media critique that they are obstacles to politics and policy.

4.     We also see erosion to the rule of law. Maintaining the rule of law requires constant effort at an administrative and cultural level. There have been repeated attacks on the rule of law over the past decade. We think these attacks have come to diminish both political commitment to the rule of law and the capacity of institutions, people and practices to defend it.

5.     To protect the rule of law, we must do so at a practical level. Our submission and our recommendations are intended to encourage the Committee – and everyone in public life – to look beyond just the law and lawyers, with a view to embedding the rule of law in public life. In the face of novel threats to the rule of law we must adapt and evolve. We have no silver bullet for complacency or erosion, but we cannot and should not presume the robustness of our institutions, people and practices which form part of the rule of law.

Introduction

6.     We are public law scholars, one from Oxford Brookes University (O’Brien), the other from Durham University (Yong). We have written on the judiciary,[1] Parliament,[2] and the executive,[3] with a focus on practice. In this submission, we direct our attention at the rule of law as a practice.

7.     We are living through a period of profound instability in world politics. Democratic decay or backsliding – the gradual sapping or weakening of the key institutions of liberal democracies – is a noted driver of this instability. It is something that has afflicted all kinds of democracies. The rule of law is a central democratic value, and to defend the rule of law is to defend democracy.

8.     We argue that defending the rule of law is primarily a matter of practice. The rule of law requires constant effort. It requires observance of constitutional conventions, respect for institutional comity and for officials and political opponents. It requires the practical attention of officials to low-profile matters of administrative function, such as advice to ministers, as well as to high-salience constitutional matters such as respect for adverse court judgments. Put simply, everyone in public life must practice the rule of law.

9.     In this submission we direct our attention briefly to some functional definitions of the rule of law. We then suggest practicality is a much more important consideration in defending the rule of law than talking about ‘guardianship’. What matters is creating and maintaining a culture of adherence to the rule of law.

What are the components of the rule of law? (Q1)

10. The simplest definition of the rule of law is that it requires government by law, not by people. This principle was expressed by the court of King’s Bench in the eighteenth century Entick v. Carrington,[4] resisting the government’s claim of an inherent power to seize private papers without a warrant on the basis that ‘if this is law it would be found in our books’. The rule of law is a fundamental anti-authoritarian ideal: if we are governed by law, we cannot be subject to the arbitrary whims and preferences of rulers and officials.

11. Modern conceptions of the rule of law build upon these bare bones, and there are both thin and thick understandings of the ideal. The phrase ‘rule of law’ was popularised by AV Dicey in the nineteenth century. Dicey’s thin conception was a purely formal account of the principle. For him, the rule of law meant no punishment without law, no power without law, and equality before the law. Thicker accounts, such as those associated with Ronald Dworkin, embrace these formal requirements but also broader and more substantive commitments to individuals and their rights.

12. We leave it to others to elaborate on the respective merits of these ‘thin’ and ‘thick’ conceptions of the rule of law. For our purposes, we assume that a commitment to the rule of law entails a commitment to government by law, to democratic rather than authoritarian modes of politics, and to minimum standards of treatment for individuals. Basic duties to abide by the law, to abide by requirements of form when legislating, and to respect the Courts naturally follow from this commitment.

13. The precise definition of the rule of law is, however, less important than its practice. Our core argument is that a more practical and more profound responsibility follows from a commitment to the rule of law – one that extends to everyone in public life: a duty to foster and strengthen a culture of the rule of law.

How can and should we uphold the rule of law? (QQ 4-7)

14. Constitutional law and constitutional principles are not self-executing, but require good faith implementation. As we are witnessing elsewhere in the world, even the most written and legal of constitutional systems depend for their survival on practice: on politicians and officials (together with non-state actors such as the media) continuing to observe what AV Dicey described as constitutional morality. The British constitution is noted for the important role played within it by constitutional conventions and culture.

15. Scholarship on this point places a great deal of emphasis on definition – on what a constitutional convention actually is – but not nearly enough on how to sustain them. Peter Hennessy described the working of the British constitution as something secured by the efforts of ‘good chaps’: the acceptance amongst elite figures that there are non-legal constitutional norms to which they are required to adhere. But the days of the good chaps are long gone.

16. In their place, we often now speak of guardians of the rule of law. Figures such as the Lord Chancellor, the Law Officers, the Cabinet Secretary and even the Prime Minister are assumed to have such a role within Government, as do their counterparts in the devolved administrations.[5] Parliamentary officials such as the Speaker and Lord Speaker, or (with lower profile but nonetheless enormous importance) the Table Office, are key constitutional actors. In the courts, the role of the Supreme Court as apex court and the heads of judiciary across the UK clearly conform with the ‘guardian’ model.

17. We think that this focus on guardians is misplaced. By elevating both ‘guardianship’ and ‘the constitution’, it presents the defence of constitutional norms – of the rule of law – as something remote from the everyday processes of government, as something that is an elite responsibility. To take one example, statutory duties to defend the rule of law and judicial independence are imposed upon the Lord Chancellor by the Constitutional Reform Act 2005. It is the duty of the Lord Chancellor, for example (drawing on Section 3 of the Constitutional Reform Act) to warn the Cabinet if there is a threat to judicial independence. Yet the political logic of this model is that the Cabinet will proceed anyhow unless and until it receives such a warning. The Section 3 duty was insufficient to prompt Liz Truss, as Lord Chancellor in 2016, to defend the divisional High Court publicly against the notorious ‘Enemies of the People’ headline and associated political and media furore that followed its decision in Miller v Secretary of State for Exiting the European Union.[6]

18. The evidence from democracies that have experienced democratic decay is that once the erosion of the rule of law becomes a matter for high profile defence by ‘guardians’ – by courts or officials – the game may already be lost. Politics has revealed that it is no longer committed to the values of the rule of law. Officials who wish to break to a powerful minister the bad news that a policy is illegal or –more ambiguous but perhaps more important – a violation of a constitutional norm, are chilled into silence. The burden of protecting the rule of law cannot be left to a small number of guardians or institutions; in times of stress, they will not hold. The burden must be borne by all of us.

What threatens the effective operation of the rule of law in the UK? (Q3)

19. We see two threats to the rule of law in the UK: complacency and erosion. The first threat to the rule of law is an attitude: complacency. When the rule of law is defended successfully, the threat does not materialise, and so the danger becomes counterfactual. This leads to the Cassandra problem: repeated successful defences of the rule of law highlight not the importance of the rule of law, but rather how annoying those defending it are!

20. For an easy example of this problem in a very different context, take the Millennium Bug. Due to short cuts taken in coding very early computer systems, the Millennium Bug was a serious threat to many areas of life. Had it not been addressed by enormous collective effort, the Bug would have caused serious disruption on 1st January 2000. The very success of that worldwide effort, however, and the fact that there was no significant disruption, have given rise to a popular but entirely mistaken belief that the Millennium Bug was a myth.

21. In our view, the long-term stability of the rule of law in the United Kingdom gives rise to a constitutional Cassandra problem: complacency. The costs to society of counterfactual breaches of the rule of law – those that never happened because they were resisted – are invisible. They are discounted, and only the constraints, in the form of ‘constitutional guardians’, institutional rules and human rights norms, remain visible. Guardians of the rule of law in Government, in politics, in the law and elsewhere are taken for granted – or worse still, become seen as the problem, and the object of often mocking political and media critique. Defenders of the rule of law are presented as alarmists causing disruption to politics for their own selfish ends (‘lefty lawyers’, ‘saboteurs’, etc). This kind of critique is often amplified by some forms of social media that display an authoritarian bias.

22. The second threat arises out of erosion to the rule of law. Institutions are, as Andrew Sabl puts it, like the Golden Gate Bridge: a remarkable achievement, but free from rust only if crews are constantly repainting it.[7] Maintaining the rule of law requires constant effort at an administrative and cultural level. This arises especially when there are repeated attacks on the rule of law. The Cassandra problem creates an impression that defenders of the rule of law are making a fuss about nothing. Over time this can sap the capacity of institutions, people and practices to resist erosion of the rule of law to resist. Individuals become less willing to stick their neck on the line for an abstract principle. Extreme positions, initially rejected, become normalised. Authoritarians do not begin by announcing their renunciation of the rule of law. They begin by delegitimising constitutional safeguards and those who maintain them. They start by disconnecting one fire alarm, then another, and so on, all the while isolating and ridiculing anyone who attempts to reconnect them.

23. We identify some of these phenomena in the practice of the rule of law in the UK in recent years. A sequence of troubling decisions during the Johnson Government, in particular – notably the Internal Market Act and the attempted prorogation of Parliament – exhibit many of the features we identify above. We worry that people assume that this period was an anomaly, at a moment of great political uncertainty. But that is a mistake. Bearing in mind the breakneck speed with which we have witnessed democratic decay in the United States in recent weeks, we take the view that the UK had a near miss experience with the beginnings of authoritarianism in 2019.

24. As prorogation was ultimately unravelled by the Supreme Court[8] – because the threat became counterfactual – the significance of this attempted prorogation has been discounted, and its capacity to scar and erode the long-term strength of the rule of law in the UK ignored. The Safety of Rwanda Act 2024, overruling the Supreme Court on another matter, and the politicisation in recent years of the Attorney General’s Legal Risk Guidance for government lawyers, are but two examples that suggest that the practice of core rule of law values is now regarded by many as fair game for the knockabout of ordinary politics.

Recommendations

25. Our primary aim in this submission has been to highlight our belief that there are threats to the rule of law in the United Kingdom, and that defence of the rule of law is a matter not just for the law and lawyers, but a matter of broader culture. Its defence requires input from everyone in public life, including politicians and officials. If we want to protect the rule of law, we must protect it in practice. We must adapt and evolve to respond to current and coming circumstances, just as opponents of the rule of law have.

26. Our professional experience as public law scholars tells us that serious challenges to the rule of law are coming into view. We believe, however, that many of the solutions lie outside of our expertise: as lawyers we have no silver bullet to offer. An adequate response to the challenges the rule of law faces must go beyond the law, lawyers and the formalities of law. It will require a coordinated effort across government and public life, one that brings in much wider cultural concerns: about education, political messaging, and the influence of both traditional and social media on our political culture.

27. Our first recommendation, therefore, is for the Committee to cast its net wide, by inviting submissions from experts who might not think of themselves as having anything to say to an inquiry focussed on the rule of law: experts in education, media analysis, administration, radicalisation and technology. These experts should be asked how we can begin to build a deeper and more robust culture of the rule of law.

28. Our second recommendation is for more education on the constitution and the rule of law for those in public life. For instance, there could be a session on the rule of law and the constitution at induction for new MPs and for new civil servants. We are not naïve about the limitations of such a policy, nor the likelihood that some may find such an approach intrusive or ideologically objectionable. Nonetheless, the rule of law requires at least some common substantive political commitments that we must subscribe to as a community. It is already a matter of concern that some in public life appear to reject these.

29. Our third recommendation concerns ministerial directions. In the past, the Committee has rejected the suggestion that ministerial directions should be extended to cover constitutional propriety.[9] This was for two reasons: first, the difficulties of defining constitutionality; and second, that it would interfere with the relationship between ministers and civil servants. These fears are overplayed. First, we anticipate that Accounting Officers, wary of the problem of definition, would rarely seek ministerial directions on this ground. The matter would arise only in the most obvious and serious cases. Second, in practice Accounting Officers can already seek ministerial directions on a range of grounds. If the concern was a loss of trust between ministers and civil servants, this would have already happened. 

30. The benefit of extending ministerial directions to cover ministerial proposals of dubious constitutional propriety would be twofold. It could act as an additional fire alarm to alert others: interested parties, the media and the public. Perhaps more importantly, it would incentivise Whitehall to take constitutional issues more seriously than it currently does, and would increase understanding of constitutional issues more generally. As Philip Rycroft (former DexEU permanent secretary and head of the UK Government’s Constitution Group) noted, ‘it is possible to go a long way up the [civil service] hierarchy without much need to show a functioning knowledge of how UK governance operates’.[10] ‘Good chaps’ are made, not conjured out of thin air.

31. We note that this recommendation would complement the Committee’s recommendation in a recent inquiry that ‘constitutional considerations should be more firmly embedded in the policy and decision-making process, such as by requiring officials to formally record constitutional considerations in the form that is used for write-rounds.’[11]

32. Our fourth and final recommendation is that respect for the rule of law should be included explicitly as a duty of Ministers in the Ministerial Code. Concrete obligations that follow from this duty should be explicitly spelt out, including for example duties of comity and respect owed to the courts and their judgments, and to respect the special responsibility of the Law Officers and officials to communicate advice on legal and constitutional norms. These duties are contained elsewhere with varying degrees of specificity (notably in Sections 2 and 3 of the Constitutional Reform Act 2005 and in para 6.4 of the Cabinet Manual) but there is little evidence that these duties or their practical implications have registered in the public or political mind. Statutory duties, defined at a high level of abstraction, have proven inadequate to this task. The Ministerial Code, though rarely enforced by Prime Ministers explicitly or in terms, is the most commonly cited basis for political and public critique of ministerial behaviour. Yet the Code currently contains no references to ministerial duties in relation to the rule of law, constitutional norms, or the courts.

Conclusion

33. The rule of law is under threat. Its defence cannot be left to legal elites, it is a matter for all of us. We need to start thinking creatively about how to protect the rule of law, and we need to do so now.

25 March 2025