The Rule of Law and Parliament: Never the Twain Shall Meet? Brian Chang
2 February 2016
In “The Ballad of East and West”, Rudyard Kipling memorably wrote
East is East, and West is West, and never the twain shall meet
Till Earth and Sky stand presently at God’s great Judgment Seat.
Is this an accurate description of the rule of law and Parliament? Is the rule of law a matter best left to lawyers, judges and courts, or do politicians and Parliament also have a role to play in upholding the rule of law, by holding the Government to account over rule of law violations, and ensuring that proposed legislation do not offend the principles of the rule of law?
A new Bingham Centre report published today makes a valuable contribution as the first ever, but hopefully not the last, empirical study on the rule of law in Parliament. By examining references to the rule of law over the 2013-14 and 2014-15 Parliamentary sessions in Parliamentary debates, parliamentary questions and written statements, using both quantitative and qualitative analysis, the report aims to improve our understanding of how the rule of law has been used in Parliament.
The most notable finding of the study was that Parliament tends to focus on the rule of law in relation to foreign affairs rather than domestic policy. Debates on Russia, the Commonwealth (particularly the rule of law situation in Sri Lanka), Ukraine, Iraq, Burma, the Middle East, Hong Kong and China were amongst the issues that generated the greatest number of references to the rule of law during the period surveyed. Of the 11 MPs who referred to the rule of law the most times during the Parliamentary sessions, 8 of them referred to it mainly or exclusively in the foreign affairs context, though the corresponding number for peers in the House of Lords was 4 out of 11. These MPs and peers tended to have Executive or shadow cabinet portfolios covering foreign affairs (e.g. David Lidington MP, who is Minister of State for the Foreign & Commonwealth Office, was the MP who referenced the rule of law the most times during the period surveyed), and they typically referenced the rule of law in their answers to parliamentary questions on foreign affairs or international development. These findings give rise to the conclusion that rule of law based Parliamentary scrutiny of the executive was overwhelmingly focused on foreign affairs and not rule of law issues in the UK.
Turning to the rule of law in the context of domestic UK issues, two findings stand out. The first finding is that the most in-depth discussion and analysis of the rule of law was focused on “legal” areas such as the justice system (especially judicial review and legal aid, but not crime), civil liberties in the national security context and human rights, but not on “non-legal areas”. While there were references to the rule of law in debates concerning British values and crime, these references were typically made in passing, without detailed consideration of the nature, content or application of rule of law principles. Parliamentarians frequently cited respect for the rule of law as part of a constellation of British values, including tolerance, freedom and democracy, but made few attempts to identify the implications of the rule of law and apply them when scrutinizing legislation or holding the executive to account over domestic issues.
The second finding is that in-depth discussion and analysis of the rule of law tended to be dominated by a small group of Parliamentarians, a large majority of whom were lawyers and former judges. The Parliamentarians who discussed the rule of law’s implication for the UK justice system most often during the period surveyed were, in descending order: Lord Faulks, Lord Pannick, Lord Cormack, Lord Beecham and Andy Slaughter MP. Of these five, only Lord Cormack did not have a legal background. The report cites Baroness Butler-Sloss noting during the House of Lords debate on “Legal Systems: Rule of Law” that
this, with some notable exceptions, is very much a lawyers’ meeting place, if not a picnic. I am afraid that, as yet another lawyer, I am contributing to that.
These findings collectively highlight gaps in the participation of Parliamentarians without a legal background in detailed discussion and analysis of the rule of law, and in the detailed consideration of rule of law principles in “non-legal” areas. The findings suggest that there is room for greater parliamentary engagement with the concept of the rule of law. The authors of the report argue that such increased engagement is desirable because of the importance of the rule of law to Government and individuals’ rights and interests, and its relevance to all areas of Government decision-making including welfare and taxation. Accordingly, Parliamentarians should have rule of law considerations in mind when they hold the Government to account on domestic issues and when they debate all legislation, and not only legislation on “legal” areas.
The report also provides a timely reminder that the House of Lords has been an important guardian of the rule of law since the removal of most of its hereditary peers in 1999, and provides one of the most detailed legislative histories of the judicial review provisions in Part 4 of the Criminal Justice and Courts Act 2015 to date. It finds that the high water mark of Parliament’s engagement of the rule of law in the period surveyed was in debates on the Criminal Justice and Courts Bill, for which there was the most rule of law discussion of any issue in the two Parliamentary sessions surveyed (and which the UK Human Rights Blog covered with 13 posts!). While the provisions of the Bill which sought to curb perceived abuse of judicial review were opposed on rule of law grounds in both Houses, it was only successfully amended in the House of Lords, following lengthy debates in which the rule of law was mentioned a total of 75 times, and was not merely cited as a rhetorical device, but as a source of obligations on the government to act lawfully, while allowing individuals to challenge bad decision-making where the government fails to do so. By contrast, during “ping pong”, all of the House of Lords amendments intended to preserve access to judicial review were rejected by the House of Commons after an hour long debate in which the rule of law was mentioned 4 times. It was only because the House of Lords insisted on the amendments preserving judicial discretion over access to judicial review and on the provision of financial information, in a three hour debate in which the rule of law was mentioned 24 times, raising the spectre of a Lords “double insistence” causing the entire Bill to fall in the final parliamentary session of the Coalition Government, that Lord Faulks then sought and obtained government amendments in the House of Commons, preserving judicial discretion to grant judicial review in cases involving “exceptional public interest”, and not to request the identity of those contributing an amount below a threshold, thereby enabling the Bill to be passed into law. This episode highlights how Parliamentarians can be sympathetic to persuasive arguments grounded in the rule of law, and in extremis, mobilised to act in defiance of their party position if they believe the rule of law is at stake.
In June 2015 a new All Party Parliamentary Group (APPG) on the Rule of Law was established, which is a cross-party grouping of members and peers with the aim at promoting parliamentary and public discussion of the rule of law as a practical concept. The APPG on the Rule of Law has held several meetings on topical issues such as non-violent extremism, the Immigration Bill 2015/16 and the removal of the reference to international law in the Ministerial Code, seeking to introduce the rule of law dimension to Parliamentary discussion of these topics. These meetings have enabled a wide array of expert speakers to brief Parliamentarians on the rule of law implications of proposed legislation and policy changes, creating a space for in-depth rule of law discussion and analysis of a range of issues, and the meeting summaries are publicly available on the Bingham Centre’s website (link here) (the Centre provides the Secretariat for the APPG). The APPG on the Rule of Law may help to strengthen parliamentary engagement with the rule of law, but the broader vision of “mainstreaming” the rule of law in Parliament will require sustained efforts by other APPGs, Parliamentary Committees, Parliamentary legal advisers, Government draftspersons and policymakers, civil society actors, and of course, MPs and peers themselves.
To conclude by returning to the question posed in the title (never the twain shall meet?), Kipling’s poem is often misquoted, as it is incomplete without the third and fourth lines of the quatrain:
But there is neither East nor West, Border, nor Breed
When two strong men stand face to face, though they come from the ends of the earth.
Like the personifications of East and West in Kipling’s poem, the report shows the Rule of Law and Parliament have met, and they both benefit from mutual respect.
Brian Chang was formerly an intern with the Bingham Centre for the Rule of Law, and contributed research assistance to the report on The Rule of Law in Parliament. He writes in a personal capacity.