We need to talk about the rule of law

Adobe Stock licensed. Derived from Downing Street Whitehall. London by David & Law by zolnierek

About two years ago, my wife and I set about the difficult task of choosing a primary school for our daughter, a process which involved visits to various local schools. One feature we encountered in almost every school was a poster entitled ‘British values’. This poster would generally list and describe, in colourful and engaging ways, a set of positive and important values, even if they did not strike me as peculiarly ‘British’. I have since learnt that the posters were the product of 2014 guidance issued by the Department of Education, then led by Michael Gove, to promote ‘British values’ in schools. 

The law rules, OK?

One of the values listed consistently jumped out at me: the ‘rule of law’. I wondered – given that the meaning of this concept is contested – how primary school pupils or their teachers might have tackled this thorny theoretical issue. I was mostly disappointed. The posters generally exhorted the value of obeying rules, particularly in the school setting, without further context. A simple online image search of ‘British values school posters’ will return many examples. 

You may ask, why are these posters significant? In many cases, they are likely the hurried work of overburdened teachers completing another box-tick exercise. One might also argue that primary school children should not be introduced to high-level legal and political theory. However, I would argue that these posters and their portrayal of the rule of law is significant, not least because they may suggest little popular understanding – even among some of our educators – of what is, according to Section 1 of the Constitutional Reform Act 2005, a constitutional principle. 

It is notable that many of these school posters reduce the rule of law to simple compliance. While this is one view of what the rule of law is (and perhaps even a necessary component of it), it represents a narrow, one-sided, and authoritarian idea, which perhaps reflects the anxieties and the power disparity of the more traditional school setting. Keeping with the educational theme, it may be worth remarking that the current Conservative government has appointed Katherine Birbalsingh (headteacher of a school reputed to be the strictest in Britain) as Chair of the Social Mobility Commission. Moreover, the Prime Minister, in describing Peppa Pig World as “very much [his] kind of place”, singled out ‘discipline in schools’ as one of its virtues. 

No one is above the law

Discipline as a virtue is not necessarily problematic in itself, though reasonable people may disagree on that point and its extent. The problem, as I see it, with many of the poster descriptions of the rule of law is that they call for obedience without acknowledging expressly that this a duty that applies to all. This is an especially important point to emphasise in a school setting, in which there is a clear disparity in power. As the influential constitutional theorist AV Dicey put it when setting out this understanding of the rule of law, “with us no [person] is above the law…” Therefore, the rules – and the consequences of breaking them – apply to all. In the educational setting, this means the teachers and headteacher, as well as the pupils. 

When the simple, narrow, and authoritarian conception of the rule of law is taken outside of the educational setting, and applied to the relationship between government and citizens, it takes on another significance. The current Conservative government, and its recent Conservative predecessors have on numerous occasions exhibited an understanding of the rule of law and its importance, which would not appear too different to the depictions in the aforementioned school posters. 

An unfaithful relationship with the law

Recent Conservative governments have led sustained and multi-directional attacks on institutions and actors that are crucial in holding the executive to account: parliament (the unlawful prorogation); the BBC (the new Culture Secretary being especially vocal in this regard); protestors (the current Police, Crime, Sentencing and Courts Bill 2021), etc. 

In the specific context of the rule of law, there have been consistent threats to curb judicial review, a process which is key to ensuring the legality of executive action. The government has time and again threatened to weaken the Human Rights Act 1998, which provides, among other things, that public authorities act unlawfully where they contravene certain rights contained in the European Convention on Human Rights. 

The government has also shown that it does not regard itself as bound entirely by international law. There have been verbal attacks on the legal professions by both the Prime Minister and Home Secretary. The failure of the current Foreign Secretary, when she was Lord Chancellor to defend individual judges being branded ‘Enemies of the people‘ in a tabloid newspaper in the immediate and fraught aftermath of the first Miller judgment was a particularly low point.

The current government and some of its supporters have also demonstrated a level of indifference to the idea of accountability where rules have possibly been transgressed by those in power. Lucy Allan MP’s tweet on 3 December, in which she criticised Neil Coyle MP for asking the police to investigate parties alleged to have taken place at No. 10 Downing Street in late 2020 in breach of Covid-19 regulations, seemed to typify a culture of dismissiveness to such concerns. Around the same time as these events are alleged to have occurred at Downing Street, two students in Derby were fined £10,000 each for organising parties in breach of the same regulations. Dicey’s assurance that no person is above the law might seem in the circumstances rather hollow. 

With such a questionable grasp of the rule of law in some schools and in government, it may therefore be time to have a wider conversation about the principle and its meaning. The rule of law is, after all, a ‘British value’. 

Like us on Facebook
Follow us on Twitter
Join our mailing list