What is "Britishness"? Part 7: Justice and the Rule of Law

British people have a respect for the law and a keen sense of justice. They like to know where they stand and what their rights are and who they can appeal to if a decision feels unjust. The rule of law and parliamentary democracy lie at the heart of the British constitution. The rule of law dates back to the Magna Carta of 1215, which established for the first time the principle that everybody, including the king, was subject to the law and that no one should be imprisoned without a trial. As such, it provides the basis for a fair and just society and remains a powerful symbol of liberty today. Lord Denning described it as "the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot." By restraining the power of the monarch, it was one of the first steps towards the establishment of parliamentary democracy in this country.

In Britain, we expect our legal processes to be fair, accessible and efficient, ensuring that individual rights are protected, and that the country’s international reputation for upholding and promoting the rule of law is maintained. Upholding the rule of law as a pillar of society has a long history in Britain but the fact is that Britain has no common legal system and no written constitution. England and Wales, Scotland and Northern Ireland each have their own separate legal systems. Similarly, there is no single written document that sets out the rights of individual citizens and how the Government should act. Whereas in many countries a statement of citizens’ rights forms part of the constitution, is enshrined in law and enforced by the courts, this is not the case in Britain. As a result, the legal rights of individuals are not actually as clear as they might be. Protections for individual rights have to be gleaned from a range of different sources including the Human Rights Act (1998), the common law, and other legislation, such as the Freedom of Information Act (2000), Equality Act (2010) and Data Protection Act (2018).

The symbolic 22-ton, 3.5m tall gilt bronze statue of the Lady of Justice by F. W. Pomeroy stands of top of the dome of the Central Criminal Court of England and Wales, commonly known as the Old Bailey. She holds the sword of retribution in her right hand and the scales of justice in the other. Photo by Anthony Baggett on 123RF.

Notwithstanding these various layers of legal protection, the areas of workers’ rights, access to healthcare and certain types of discrimination (e.g. transgender rights) are not well covered. The Human Rights Act (HRA) attempts to tread a fine constitutional line by enabling the courts to play an active role in protecting human rights without undermining parliamentary sovereignty. An individual can sue public authorities when their rights are violated and a court can award a victim a ‘just and appropriate’ remedy but cannot set aside parliamentary legislation. This leaves Parliament with the final say on what the law should be regarding human rights issues. The HRA regularly comes in for unfair criticism for safeguarding the human rights of terrorists, hate preachers, criminals, or migrants against political decision-making. Although it is sometimes labelled a ‘charter for criminals and terrorists,’ the HRA does not actually give criminals the same rights as everyone else. In fact, the Act requires serious crimes to be investigated and those who commit them to be prosecuted. It provides that those convicted can be deprived of their liberty or, if they have no right to reside in Britain, to be deported. The only rights that are absolute under the Act are to life, to freedom from torture or inhuman treatment, and from slavery on the basis that such treatment can never be justified in a democratic, civilised society. Despite what the tabloids would have us believe, only in a small minority of cases does human rights law prevent deportation of individuals who are a threat to our national security, and then only because they will face near-certain torture or inhuman treatment in the country to which they would be deported.

The value of HRA has not been so widely celebrated but it has been relied upon, for example, by Hillsborough families to get a second inquiry to uncover the truth about how their loved ones died; by individuals to defend their right to wear religious symbols at work; and by victims of the Stafford hospital scandal to force the government to hold a public inquiry into what went wrong and the lessons that needed to be learned to prevent a similar tragedy happening elsewhere. Human rights are still not deeply embedded in British culture and continue to be a contested concept in British politics. Views differ on what constitutes a breach of a fundamental right and how protections should be interpreted and applied. When and how the courts should intervene to protect individual rights is another bone of contention, leading to accusations of them being excessively concerned with the rights of minorities at the expense of the public interest. One of the chief bugbears cited by the Vote Leave campaign was the influence exerted by the jurisprudence of the European Court of Human Rights (ECHR) over UK law, even though the ECHR is actually entirely separate from the EU and, as such, we are still subject to it. The Conservative Party keeps threatening to replace the HRA with a ‘British Bill of Rights.’ Its election manifestos in 2010 and 2015 both contained proposals but as yet no legislation has been brought forward.

Worryingly, there is a growing antipathy towards the Law and those who practice it in Britain today. There are a number of reasons for this. The Home Office’s continued attacks on ‘activist lawyers’ who act in cases against the Government both undermines the Law and has stirred up resentment against individual lawyers, who have been subjected to online abuse and even death threats. This is totally unacceptable and must stop. The Prime Minister himself bears much of the responsibility because of his fast and loose approach to the constitution in unlawfully proroguing Parliament in the run-up to the Brexit deadline in 2019. His failure to hold colleagues to account for various misdemeanours has contributed to the perception of there being ‘one law for them and another for the rest of us’ which weakens compliance culture. Furthermore, his self-declared libertine tendencies have made him reluctant to impose restrictions on individual freedoms during the pandemic and this has undoubtedly cost lives. The effect of this is that some groups are losing sight of the importance and benefits of the rule of law in protecting human rights and underpinning democracy in this country. They do not see the Law as something absolute that exists to protect society as a whole but rather as something that can be twisted to suit their individual needs, or from which they can exempt themselves. We have seen evidence of this ‘selective’ approach to the Law during the current pandemic in the way that some individuals have claimed not to be bound by the Coronavirus Regulations. These regulations impose legal obligations that are enforceable by law. Nonetheless, throughout the lockdowns, there have been numerous reports of unlawful gatherings, business owners refusing to close their premises, and individuals falsely claiming medical exemptions from having to wear facemasks in shops or on public transport. Those defying the Law make specious appeals to chapter 61 of the Magna Carta, which has long since been repealed, to claim a right to dissent. They profess rights under ‘old common law’ which no longer exist as they have been superseded by primary legislation. And they misuse contract law to assert that their consent is required before the restrictions apply to them. All of which is complete nonsense!

In addition, the EU withdrawal will undoubtedly have an impact on Britain’s legislative framework and attitudes towards the Law. The Government rushed domestic legislation through Parliament in September, the Internal Markets Bill, to give themselves the power to override parts of the Withdrawal Agreement relating to the Northern Ireland protocol and the provision of state aid. This showed a flagrant disregard for international law, and, whilst it might just have been a negotiating tactic in the context of ongoing trade talks with the EU, it nonetheless raised serious questions about their respect for and commitment to the rule of law more generally. What is our democracy based on, if not the rule of law? By seeking to unilaterally change the Agreement that was signed with the EU only last October, and potentially undermining the Irish peace process and Good Friday Agreement in the process, the Government inflicted untold damage on the UK’s global reputation as a country that upholds the rule of law and can be trusted to honour its international treaty obligations. But it does not stop there. Brexit could also be used to undermine protections currently afforded by EU law in areas such as equality law, labour law and migrant rights. So, the future of legal rights protection in Britain remains uncertain and the kind of protections that we currently enjoy should not be taken as read for the future. There is a real risk that Parliament, in seeking to strengthen its own position, will inevitably weaken the rights of the British people who could find themselves with less protections than they have now.

The British people need to wake up before it is too late. We have seen with Brexit that it is no use crying after rights have been taken away. There needs to be a proper debate about the role of human rights in post-Brexit Britain and the extent to which individuals can rely on respect for the rule of law to protect them but this will only happen if the electorate demands it.