The rule of law and the law of rules

Carl Gardner, IBA Journalism Fellow

The rule of law in advanced twenty-first century societies is complex and finely balanced. Brexit will undoubtedly add complexity, and we need to be careful not to upset the equilibrium.

Laws ought not to be subtle, wrote Baron Montesquieu: ‘they are designed for people of common understanding, not as an art of logic, but as the plain reason of the father of a family’. But, law in complex societies is becoming ever subtler, and understanding it ever more an art of unobvious logic. If it’s like talking to our parents, then these days mum and dad must be postmodern theologians. We have a problem.

Luis Muiña set up a secret prison where people were tortured in the military junta days. The rule of law has since arrived in Argentina, together with human rights and, in May 2017, Muiña was convicted of the kidnap and torture of five people. However, there was outrage when the Supreme Court in effect cut his 13-year sentence to nine. Not only should his pre-trial custody be counted towards his sentence, the court said, it should be counted twice, with the result that Muiña would benefit from a double discount. This ruling was caused by the interaction of two laws, one in force, another long repealed. From 1994 to 2001, a so-called ‘two for one’ law imposed the double discount rule where remand in custody exceeded two years, presumably to encourage prosecutors to get on with cases. Muiña’s offences occurred before the legislation was adopted, and his sentence handed down after its repeal. Yet, it has to be applied – the judges ruled by three votes to two – because of article 2 of the penal code. It says that, if there’s been any change in law by the time a historic offence is tried or at any time between, the ‘most benign’ law must be applied. It’s this overarching abstract principle, ultimately, that cut down Muiña’s imprisonment.

The Argentine congress has now amended the principle, which will no longer apply in serious human rights cases. But, the Supreme Court must still rule on the effect of the new law. All of this is, looked at one way, the working out of the rule of law. A man has rightly received the benefit of laws publicly made, to adapt the words of Lord Bingham. But, think for a moment of the outcome: a torturer has received a freedom windfall, and may end up treated more favourably than those who happen to be convicted later of torture committed at the same time. That’s about as arbitrary, and as far from the rule of law, as you can get.

At least Muiña’s case turned on an unwise higher principle laid down in legislation. Even more confusion reigns if judges themselves set up well-meaning but vague principles as higher extra-textual laws. Take the Court of Justice of the European Union’s (CJEU) Test Achats case from 2011.

For years, it was argued that the insurance business systematically discriminated on grounds of sex, because it would work out in a broad-brush way whether women or men on average were more exposed to insured risks (like death or car accidents). They’d then bump up (or cut) your premiums simply because you belonged to the riskier (or safer) sex. There were differing views on this among European politicians. But compromise was reached, and a Directive adopted that would phase out sex-based ‘actuarial factors’ yet, at the same time, allow member states, if they chose, to maintain the old approach for at least five years. That exception was too much for the CJEU: it worked against the general principle of equality in European Union law, it said, and must be struck down.

No matter that elected Brussels politicians had carefully negotiated the compromise: the solution was to be found in judges’ application of higher fine principle. As for the effect of the decision on insurers, the court had to allow an almost two-year transitional period before its ruling came into effect. Justice of a sort had been done, and damn the effect on consumers (young women no doubt pay higher car insurance premiums than before, and young men less) and on business. The case illustrates that the problem in the EU’s constitutional order is less the democratic deficit we often hear about than a rule of law deficit, as Dominic Grieve rightly argued in a speech while in office as Attorney General.

The European Court of Human Rights has got itself into a pickle too, famously, about prisoners’ votes. Between Hirst v the United Kingdom and Scoppola v Italy, it insisted on the one hand that a ‘blanket’ voting ban on every prisoner for the precise duration of his sentence is disproportionate and so breaches rights, while a more severe ban extending beyond release is proportionate and fine, precisely because it is not applied equally to all. This is a truly Alice in Wonderland doctrine: judicial arbitrariness requiring executive arbitrariness. Though most British criticism of the court is wrong-headed, its jurisprudence on this issue is rightly disliked. It shows why vague, ill-thought-out judicial principles applied in the context of a balancing analysis like proportionality are less reliable, less certain and less respectful of the rule of law than bright-line, definite rules.

The key here is to see a distinction between two approaches to the rule of law, identified by Jeremy Waldron in his essay ‘The Rule of Law as a Theater of Debate’. On the one hand, there’s the ‘proceduralist’ model of the rule of law: law is a process in which social debates are resolved, and it’s the guarantee of access to that process that means law, ultimately, is Queen. Waldron quotes Ronald Dworkin’s slightly undemocratic praise for this approach in Freedom’s Law: ‘When a constitutional issue has been decided by the Supreme Court… a sustained national debate begins… That debate better matches [the] conception of republican government, in its emphasis on matters of principle, than almost anything the legislative process on its own is likely to produce.’ The alternative is what Waldron calls the ‘rule-book model’ of the rule of law, in which society is governed by clear public rules known

in advance, the application of which is broadly predictable. What’s tended to happen in Western legal systems recently is that legal, judicial and elite fears about the possible injustice of legislation (or actual injustice: I don’t deny that politicians enact and decree many unjust laws) has led judges to interpret out their clarity in the name of the rule of law. I understand that urge; indeed, I approve of it up to a point. The judicial role should not be a mechanical one and an important balance is achieved when judges moderate and rationalise law through interpretation. Still, I fear we’ve gone too far. We need to be less subtle – and rediscover the virtues of legal simplicity.

This is especially so where there’s less public funding for litigation. If more people must represent themselves in divorce cases, then divorce law must be comprehensible. This, I predict, will be the reason England and Wales moves to no-fault divorce. Employment tribunals are meant to be accessible (and now are, thanks to our Supreme Court’s Unison case) but, to take a topical British issue, who knows if an employer can make you wear high heels? We’d be better off with a bright-line rule (as they have in British Columbia) than a mere process for deciding whether it’s reasonable in any and every particular workplace.

In Evans, the Supreme Court’s ruling on disclosure of Prince Charles’s letters, a plain and reasonable reading of the Freedom of Information Act, gave government a veto on disclosure. Everyone knows the government and its majority of Members of Parliament wanted that when the law was passed. Lord Wilson at least understood the law’s relative simplicity. But the majority in the Supreme Court, nowadays far too eager to see constitutional principle around every corner, used the ‘principle of legality’ to limit the veto in one special circumstance: if it means disagreeing with judges. The so-called principle of legality, a sensible and moderate presumption developed in the 1990s (that Parliament should only be taken to have intended to limit fundamental rights if the wording of legislation does so clearly), has morphed into a higher constitutional principle that’s too readily used to cut down clear law.

The Miller case early in 2017 was another example of a surprising ruling based on very artful constitutional logic, again based in part on the amorphous principle of legality. Lord Reed’s dissent will stand the scrutiny of time far better than the majority judgment.

But, if the law in Britain is complex now, won’t Brexit simplify things? For many who voted Leave, Brexit is a chance to sweep away a whole layer of EU law and rights sitting on top of our traditional legal system; it offers a return to straightforward Parliamentary sovereignty, particularly if we go on to leave the European Convention on Human Rights. Doesn’t it?

For your answer, look at the EU (Withdrawal) Bill currently going through Parliament. Rather than simplifying anything, the Bill would make our law more complex than ever. For the first time, it will create a genuine hierarchy of norms within British legal systems. A new category of UK law – so-called ‘retained EU law’ – will have supremacy over all legislation passed before Brexit. For the first time, such domestic law will be liable to be struck down by courts, still by reference to CJEU cases even though its jurisdiction will supposedly have ended. And Parliament will leave it to judges to decide what use to make of CJEU rulings after Brexit, and whether an amendment to retained EU legislation will make it no longer ‘supreme’. This is a system more complex, not less, than our current legal interaction with the EU. Brexit Britain will be a judge-activist’s playground.

It isn’t international rules that cause the complexity. The problem of layered judicial and legislative principle arises within complex political societies, without any need for external help. In every highly-developed country we risk making politics less accountable and life less predictable for businesses and people, while outraging their sense of fairness. And all this because we care about the rule of law and justice. We may be developing the ideal model for autocratic or oligarchic managed democracies.

It’s not easy to solve this problem. Overarchingly broad principles (like many human rights laws) have their place, and are needed; perhaps international laws are the best place for them. The line between a vague principle and a definite rule isn’t always clear. But we need to start worrying about this. We need less of the procedural, judicial rule of law, and more of the law of rules.

Carl Gardner is the IBA Journalism Fellow for 2017. He’s an established legal commentator, former government lawyer and lecturer in law. He can be contacted at carl@headoflegal.com