Among the cliches that swamp the political lexicon the ‘rule of law’ ranks highly. It has been described as a ‘self-congratulatory rhetorical device that graces the public utterances of Anglo-American politicians’. As if to confirm this sorry state of affairs, the Government’s newly minted Attorney-General, Lord Hermer KC, recently ventured into contentious territory when, adopting the dubious view advanced in the late Lord Bingham’s popular book, The Rule of Law, he threw ‘human rights’ into the mix as part a substantive or ‘thick’ conception of the rule of law:
One of Lord Bingham’s great contributions was to promote a more substantive conception of the rule of law, including the idea that the law must afford adequate protection of fundamental human rights. I too believe that human rights – both at the level of principle, and in practice through how they are enforced – are an essential element of the rule of law and a stable democratic culture.
To import ‘human rights’ into the notion of the rule of law is misconceived. It weakens both values by loading the concept with benevolent intentions that saps its essential character as a constitutional instrument to contain the exercise of arbitrary power. And it correspondingly diminishes the powerful concept of human rights by merging it with what are fundamentally procedural devices.
And what is the point? What exactly does our senior law officer intend to do with this unwieldy augmented rule of law? What possible benefits does he believe it will serve? Is it yet another instance of an irresistible temptation to extend an agreeably liberal ideal almost to breaking point or to cram it with freight that it can barely support.
Human rights (itself a nebulous and contested concept) are most effectively protected in their own name. Moreover, a thick, substantive theory of the rule of law may actually be legally counter-productive. It could, for example, lead courts engaged in judicial review to shrink from asserting a comprehensive review of a declaration of a state of emergency.
If Lord Hermer’s goal is to instil moral values into the rule of law, they are already there. Formal requirements do have substantive foundations and normative consequences. The right to a fair trial, for example, is both grounded in principles of justice, and presumes the existence of impartial judges. There is a symbiotic relationship between procedural and substantive features of the rule of law. But this is a far cry from the misguided incorporation of fuzzy ‘human rights’ as advocated by the Attorney General.
The desire to enlarge the scope of the rule of law may be understandable in a newly appointed senior law officer seeking to display his enlightened values. But this is imprudent. Where is the line to be drawn? Will every element in our legal system be subject to a human rights MOT?
There are, of course, many elements of a democratic legal system whose deficiencies may enfeeble its effective operation and weaken the rule of law. But we should resist amplifying and encumbering the concept beyond its nucleus. The beauty of the idea of the rule of law is that it transcends the hurly-burly of ideological controversy, and provides objective standards by which to judge a legal system.
I repudiate the claim that a ‘thin’ version of the rule of law is somehow stripped of ethical or evaluative content. The proposition that, for example, the law ought to apply equally to all regardless of their social status, gender, wealth, creed, race, and so on bristles with moral force. If the rule of law means anything, it signifies a powerful check on the abuse of arbitrary power. This is not to say that it is simply a negative ideal; its strength lies in the affirmation of the values of fairness, and integrity. Hands off it, Lord Hermer!
Raymond Wacks, Emeritus Professor of Law and Legal Theory, is the author of 17 books including The Rule of Law Under Fire?
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“The right to a fair trial presupposes the existence of impartial judges.”
For once, I find myself agreeing with the unconscious bias industry. No such thing as impartiality. The arbiter is part of the outcome.
Trying to politicise it?
That happened when the Rule of Law was abandoned with Acts of Parliament – such as race, sex discrimination – giving some groups of society advantages backed by the State and legal system that others don’t have, and which can be used by the State or others for political, ideological reasons, gain, or just malice and spite.
Under the Rule of Law, it must be clear when a particular action by a citizen breaches the law, so they know they are acting illegally and in any case their action can be shown in a Court to be in breach.
The so-called hate crime act makes it an offence if just one person is offended by an action. So it is not the action that causes the breach, it is the reaction. This leaves it entirely unclear to a citizen whether their action is illegal. If nobody claims offence it isn’t, if someone does it is – and there is no time limit. The Gestapo can turn up weeks, months, years later because somebody read or heard about what was said and is “offended”.
The Rule of Law, like our other Common Law Rights no longer exists.
Yes, I think David Starkey makes this point too that “rights” laws give minorities a higher level of “justice” than everyone else: that is, if I understand him, that the minority rules the majority. For instance, a rapist who can’t be deported and the majority are expected to subsume him.
Off-T.
No articles dealing with this so it has landed here.
An absolutely fascinating article which outlines were this country is headed if we don’t pull our fingers out in the next few years. Target date is 2030 as i keep stating.
https://www.globalresearch.ca/uk-leading-global-test-bed-ai-enforcement/5877274
“Klaus Schwab convinced him – as well as his compatriot the King of England – that this is the future. “If you want to keep your job for the next four years you had better set about it right away” warn his minders.
An upright turbocharged goose step march into state controlled surveillance; big data; central control and a subservient brain damaged social constituency – is what is actually being announced by the British prime minister.
The Guardian newspaper boldly announces
“Keir Starmer will launch a sweeping action plan to increase twenty fold the amount of AI computing power under public control by 2030.”
Hello, there’s that infamous 2030 date looming up again. Everything is supposed to be in place to have achieved full spectrum dominance over freedom loving members of the human race by that date”
The area where AI seems to have the most potential is in snooping and censoring and generally making our lives more difficult – it doesn’t matter too much if it makes mistakes one way or another, it’s a case of “never mind the quality, feel the width”.
Luckily (!) we won’t have enough electricity to keep the lights on in 2030, let alone run AI systems
Lol
The internet is powered by unicorn farts
Correct.
Interesting to see that nuclear reactors are OK for powering AI installations but not steel plants or chemical works… which actually create real wealth and proper jobs.
It would be extremely helpful if the author had at least summarized what he’s criticizing. Or maybe at least provided a link. As It stands, I have no idea what he’s writing about save that he’s opposed to something.
The nice thing about human rights is that their definition is often vague enough that it can be interpreted to mean anything. The COVID era right to life included force masking people, enforcing certain distances between them and regulating who might legally meet whom under what circumstances, all claimed to be motivated by the state protecting people’s right to life by ensuring that they wouldn’t come into harmful contact with other people.
Likewise, a right to life, that is, to enjoyment of human rights, had the ECHR find that the Swiss state was not doing enough to combat climate change to protect elderly climate activists from the dreadful consequences of heat waves in summer in Switzerland, a country not exactly known for its hot climate because it’s location in the Alps.
Hence, if Hermer wants to intertwine rule of law and human rights, he most likely simply wants to make arbitrary unaccountable political decisions about stuff, eg, end all deportations of foreign criminals because of their right to whatever suggests itself and – at the same time – send any British people who critcize this to jail for incitement to whatever comes to mind first.
To import ‘human rights’ into the notion of the rule of law is misconceived
The important thing for our rulers about “rights” is that they are in the gift of the government. This is in contrast to freedom, which belongs to each individual. This is the reason for the interesting modern fact that as “rights” proliferate, freedom diminishes, and government power increases.
I like what the incomparable US Supreme Court Justice Clarence Thomas has to say about “human rights” and the law: that rights should be understood as conferring freedom from government interference rather than entitlement to government benefits.
What they want is courts run by and for the elites. That way lies perpetual socialism snd no freedom.
Surely, the law was politicised by Blair in 1997?
ECHR, Supreme Court? Lefty judges?
Wasn’t Lord Hermer the guy who pressed for the prosecution of Tommy Robinson for a civil offence which is unusual for the AG to
do? Presumably Robinson had no human rights to appeal to such as being kept in perpetual solitary confinement!
Going to the source of Human Rights, the 1948 Universal Declaration of Human Rights, I can find no actual rights at all, only well meaning aspirations. No wonder they have become so malleable for politicians and so lucrative for lawyers.
The last paragraph and Southport so much for lawyers