This is the week that we lawyers need our rule of law primer by our side, ready to judge various actions, and maybe to take action on behalf of our clients. It is strange to think that a rule of law primer is needed in a democracy.
It is easier to begin with a democracy in a faraway place. At the time of writing, the US election has not taken place. It may be better for all of us if the result is a clear win for either candidate. Then the bitter lawsuits, finally to be settled by a Supreme Court with a built-in majority for one side, and the threatened civil violence, will presumably not materialise.
If it is close and settled by the courts, there may well be calls for civil disobedience. Shopkeepers are already boarding up their premises. That is when questions arise of which laws must be followed, and whether there can be democracy and the rule of law without the consent of the governed. We have a different system, but this issue may arise if one candidate wins the popular vote by a big margin and the other wins the electoral college vote by a narrow margin.
But we have our own severe crisis ahead, with another national lockdown beginning on Thursday 5 November. This raises serious problems for lawyers, both as business owners and as advisers.
As business owners, the Law Society is continuing with its excellent service of advice to the profession. It has issued fresh advice for the new lockdown starting this week, which is worth consulting.
But it is as advisers that the biggest challenges will arise. The regulations which will underpin the next lockdown are not due to be published until Tuesday, to be voted on in parliament on Wednesday, and then come into force hours later, after midnight on Thursday. Given that they will effectively lock us into our houses and tell us when we can go out and whom we can see, that might not be thought of as the best recipe for the rule of law.
I assume that there will be the same mixture of law and guidance, and there will necessarily be ridiculous borders, like in the past when you had to see your granny in the pub rather than in your garden, or set up a company so that you can have a working lunch at Christmas which breaks the rule of six governing other entertainment. (If these are not entirely accurate examples, blame the opacity of the regulations – the principle stands even if I am wrong on the detail.)
The rule of law is notoriously difficult to define, but that has not stopped a number of organisations from trying. According to the United Nations, two of its elements are legal certainty and the avoidance of arbitrariness. It is fairly certain that the coming combination of law and regulation will break those two elements.
That is before you get to the parts against which anti-lockdowners rage. For instance, governments hold power via the House of Commons, which acts as a protection from the arbitrary exercise of executive power. But, although these new regulations will only come into force after a vote in parliament, much will doubtless still undertaken by ministerial decree, without accountability to anyone. Certainly, that happened in the first lockdown.
The United Nations’ definition of the rule of law speaks about ‘accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making’.
The Rule of Law Index of the World Justice Project has ‘Constraints on Government Powers’ as its first factor, in which are included ‘Government powers are effectively limited by the legislature’ and ‘by the judiciary’. ‘Open government’ is another factor, with ‘Publicized laws and government data’. ‘Fundamental rights’ requires ‘Freedom from arbitrary interference with privacy’ and ‘Freedom of assembly and association’.
It is not difficult to see how many of these factors are in danger of being broken. I am not among the angry lockdowners, but at the same time it is a worry that so many elements of the rule of law are flashing danger signals.
Finally, at the same time as non-essential shops and restaurants are closing, they are being urged by the government to get ready for Brexit. This pulls some in the nation in two directions: to stop work and yet to work hard for an important looming deadline.
More and more rules are being made, at bewildering speed and complexity. There is a danger that those who fear for the economic consequences to themselves and their communities will refuse to comply.
We will each be asked to apply the principles of the rule of law carefully in the coming days.
Jonathan Goldsmith is Law Society Council member for EU matters and a former secretary general of the Council of Bars and Law Societies of Europe. All views expressed are personal and are not made in his capacity as a Law Society Council member nor on behalf of the Law Society