The idea of rule of law is not a new one. It is frequently dated as far back as Aristotle, who said “It is better for the law to rule than one of the citizens.” But the idea is at least a hundred years older. Sophocles dramatized it in his play, Oedipus the King, in which, as a result of his own investigation, the King finds himself responsible for the plague on Thebes and realises that he must be held accountable, just as anyone else would be, to his prior judgement.
Rule of law then is the idea that it is the law, independently administered, that governs a people not the whims of any monarch or minister or mob, and that no one is above the law. So, when the mob gathers with flaming torches and pitchforks outside the “witch’s” hovel, or the minister wants rid of his mistress’ husband, the law should protect the basic human rights of the wise-woman and the cuckold, and restrain human excesses, or punish them when they transgress the law.
It is this concept, one that in British law can be traced back as far as Magna Carta, that is most fundamentally under attack with Brexit. It began with press and political denunciations of the independence of the judiciary. It has continued with British government proposals to use the excuse of Brexit and the “will of the people” to grant sweeping Henry VIII powers to ministers. If these powers are granted they will permit ministers to make law without reference to parliament.
In his magisterial book on the subject, Tom Bingham sets out the fundamental principles of rule of law, noting that these include a requirement for compliance of the state with its obligations in international as well as national law. Bingham quotes Professor William Bishop as describing the international rule of law as including, “the realization that law can and should be used as an instrumentality for the cooperative international furtherance of social aims in such a fashion as to preserve and promote the values of freedom and dignity for individuals.”
But this ideal has long been anathema to powerful sections of the Conservative party. In 2015 David Cameron removed from the ministerial code the requirement for ministers to adhere to international law. Theresa May has never been shy about her wish to remove the UK from the jurisdiction of the European Court of Human Rights, an entity separate to the EU.
Brexit furthers this ambition to remove the constraints of international law from the UK government. As part of the Brexit process, the Government intends to remove the UK from the jurisdiction of the Court of Justice of the European Union. This, if it happens, will further remove constraints on ministerial power. A side effect of this will be to put in jeopardy the UK’s continued law enforcement and intelligence cooperation in Europe. But while this would undoubtedly increase the risks of terrorism for ordinary UK citizens, there is little that the pathetic foot soldiers of Islamic State can do that will pose an existential threat to the nation. However, the cynical might comment that, as in the past, an upsurge of terrorist attacks on the civilian population would provide a convenient excuse for a further concentration of power in the hands of ministers and further erosion of the civil rights of the British people.
Since the Brexit vote in 2016, the British Government have sought to find common ground with some of the most unsavoury governments and anti-democratic leaders on the planet. As well as Theresa May’s supplication to Donald Trump and the leaders of the bloodthirsty Saudi Arabian government, she has also proven herself a ready apologist for the governments of Poland and Hungary as they also strike at the foundations of human rights and rule of law in their own countries. Disgraced former Defence Secretary Liam Fox, gave more away than he intended with his declaration of “shared values” with Rodrigo Duterte, the Philippines leader whose repudiation of rule of law is so absolute that he promotes indiscriminate murder as a central tenet of his so-called “war on drugs”.
But all this should not be surprising. Because, for the empire-dreaming elite whose money and lies obtained the soiled “mandate” for Brexit, the diminution of rule of law is their central purpose. It will facilitate an environment in which ecological and safety standards, workers’ and consumers’ rights are negated. Capital will once more be given pre-eminence over labour, as newly empowered ministers ensure that the wealthiest are permanently put above the law, at least as far as their tax affairs are concerned. No matter what fantasies are spun by the leadership of the British Labour party about the possibilities of a “People’s Brexit”, they will not alter, one iota, the vital essence of this project, irrespective of who is in government.
So, the prospects of Brexit for the UK are not simply of economic decline, international isolation and irrelevance. British democratic standards and human rights, a tradition that can be traced back to Runnymede, are themselves under threat as the UK continues to seek its future alliances with new dictatorships and old autocracies.
As Shakespeare’s Falstaff reflects while Prince Hal prepares to repudiate their friendship and put him back into his lowly place, these are the “chimes at midnight”. They ring again today for any British subject not wealthy enough to indulge in tax avoidance. The lower orders have had their day. Now they must know their place.