A narrow meaning of “the rule of law” is that the government should have a legal basis for everything it does. And by this definition it is not an especially liberal concept. Indeed, some of the most repressive regimes in human history have been careful to have a legal basis for their tyranny and cruelty.
It may be that a court will nod along with an unlawful measure, or it may be that those affected by an unlawful measure have no realistic access to a tribunal, and so on. There are many conceivable obstacles to challenging state illegality. A requirement that a government acts lawfully may not make much difference in practice.
That the “the rule of law” is not in and of itself a progressive doctrine can be shown with the United Kingdom law relating to the security services. In the great case of Malone (1984) , which concerned the security services claiming they could do whatever they liked if it was something a natural person could do, the courts held that the government was required to place surveillance laws onto the statute book. The state could not act freely like a natural person and do as it wished when infringing the rights of others. It could only do what the law provided.
Since then successive governments have relentlessly brought legislation forward about national security. We have had terrorism acts and anti-terrorism acts and counter-terrorism acts. We have volumes of primary and secondary legislation giving the security services almost every power and privilege imaginable. And all of this in compliance with the narrow meaning of the rule of law.
And so, given what a UK government with a majority in parliament (and with courts generally deferent to the executive) can do within the law (which it pretty much makes itself), it was a remarkable feature of the last Conservative government that it sought to do things either outside the law or where it would significantly increase the risk that it would be found to have acted unlawfully.
The attempt by the UK state to deliberately break the law with the Internal Markets Bill, which originally proposed breaching some of the terms of the government’s Brexit agreement with the EU, was (or should be) notorious. Less obvious but perhaps far more significant were the ongoing attempts to minimise or eliminate adverse legal advice within government. The former attorney general Suella Braverman changed the guidelines for government lawyers to demand that they act in a more “solution”-orientated manner.
One may think that, given the dominance of the government in making law, it hardly needs to then neutralise internal legal advice: if a law is unhelpful to a minister then it is open to the government to get legislation passed quickly so that it can get its way. But the former attorney general wanted ministers to have a legislative cake and to also be able to unlawfully eat it.
This was a low point in our constitutional and legal history. The then government did not want to even abide with the mild discipline provided by the narrow definition of the rule of law. It wanted to routinely do things which government lawyers would otherwise advise to be unlawful.
One tonic the incoming Labour government has provided is to end this unfortunate situation. And a couple of weeks ago, the new attorney general Richard Hermer gave a significant and wide-ranging speech about how the new administration intends to approach questions of legality.
One passage is eye-catching. Regarding government legal advice, Hermer said that he “will issue an amended guidance for assessing legal risk across government that will seek to raise the standards for calibrating legality that the thousands of brilliant lawyers working in every part of government activity apply to deliver for the people of this country”. He added that he wanted those lawyers “to feel empowered to give their full and frank advice to me and others in government and to stand up for the rule of law.”
This is—or should be—basic stuff, and it is a sign of how bad the rot was in the last government that Hermer even needs to say this, let alone amend and reissue guidance.
Of course, incoming governments always aspire to be better than their predecessor—and as the years pass and challenges become more frustrating, there will be pressure for government lawyers and other officials to again be more “solution” orientated. “Full and frank” legal advice is rarely welcomed when that advice is that a thing is unlawful.
But at least civil servants will have the support of the express terms of the attorney general’s revised guidelines. We will again have a government wanting to act within the law and putting in place the means for getting the advice it needs do so.
This will not, by itself, be a marker that the government will be progressive and enlightened. Governments tend to be illiberal, the Home Office will never change, and the security services will convince ministers that yet more laws are required.
But still, it is a start. The government is required to have a legal basis for what it does, which means that—at least in theory—there are things it cannot do, unless it can show it has accorded with the law.
