President Biden, now aged 80, when discussing the likelihood of standing in the next presidential election in 2024, said that he didn’t feel any different than when he was aged 50. We’ll see what  his wife Jill has to say about his campaigning for another four years in office. As we often say though, when in self-delusion mode, ‘age is just a number’. Actually, for much of our lives, age is indeed just a number: from one year to another, nothing much seems to change. The only reason we become aware of the passing of time is when we receive birthday cards reminding us (often rudely) of another milestone passed.

But as we pass from being children, to adolescents, to adults, the theory is that we become more, well, ‘adult’, more mature. But how do we define this stage of our lives? As someone who has had a career and is now retired, someone who has miscellaneous white goods, a car, a house (and a wife), I suppose that inevitably I attract the label ‘adult’ - even if I don’t think that these criteria are the last word.

You could also argue that being an adult is about how we deal with our emotions. As young infants, we scream or lash out to express our displeasure. We have no other way to communicate. As we become older, society demands that we develop more sophisticated means of dealing with our feelings. It seems that a recognisable “emotional intelligence” starts to appears around age 4 and develops at (very) different rates in different people. There is though no scientific consensus on when your emotional intelligence stops developing, if it ever does.

And unfortunately some never seem really to develop it. Criminals tend to be in that category and so, in that sense, have never truly become adults. There are of course programmes in prisons which can have an important effect on their psychological development: would that there was the investment frrom the government to make these more available. And so we come to politicians.

I’m sure that many of them do demonstrate a form of maturity, if inconsistently, but there are so many of them who are still children in their emotional reaction to life. Narcissism and bullying are by no means unusual in that world. And no, I’m not just thinking of Trump and his followers in the Republican party. I’m afraid that it starts much closer to home.

It’s pretty obvious that the last-but-one Prime Minister is a child in ill-fitting man’s clothing. His emotional intelligence must rank near to that of a toddler. Liz Truss was capable of changing her mind on big things, such as which political party to belong to or Brexit, when it suited her personal advancement. However, the book, 'Britannia Unchained', which she wrote in 2012 with Kwasi Kwarteng, Priti Patel and Dominic Raab, on how to manage the economy, has proved to be a constant. She has stood by it regardless of all the evidence – just like a petulant child.

She is of course, not alone. The inhabitants of 55 Tufton Street, who encouraged her in all of this, seem also to be afflicted by the same malady. Many on the right are still muttering that the failed budget was right – it was just implemented a little too quickly. A refusal to ‘change your mind when the facts change’ may not be a definite indicator of madness, but it is certainly a sign of immaturity.

Although we have the impression that adults are again in charge, there is something-else which has been happening in the background - and it has not gone away despite the change of Prime Minister. It relates to the rule of law. The ancient office of Lord Chancellor, in olden days the deputy to the king, was filled by the likes of Sir Thomas Moore and other luminaries from our past. There were also some rather less attractive characters but, by the Victorian era, it had all settled down, the post being filled by a series of eminent lawyers, something which continued until the early part of this century.

The role of the Lord Chancellor was to give legal advice to the government – not in the everyday sense, but when it came to the big calls. It was he who stopped governments from embarking on courses of action which were either obviously illegal or sailed far too close to the wind. His job was to be the grown-up in the room. And then there were the law officers, with similar roles, the attorney-general and solicitor-general, again in times past respected lawyers.

But, in 2004, there was a change in the law so that, instead, we’ve had the likes of Dominic Raab and Liz Truss as Lord Chancellors and Suella Braverman as attorney general. Liz Truss (a non-lawyer) was Lord Chancellor when the Express ran the headline ‘Enemies of the People’ above the photographs of the Court of Appeal judges who held that parliament had to be consulted before Brexit could be initiated. She said nothing. And Raab, once again Lord Chancellor, wants to water-down the Human Rights Act.

As explained in a recent talk by Murray Hunt, director of the Bingham Centre for the Rule of Law, a receent decision by Suella when she was Attorney-General is proving to be extremely important. The reference in the Ministerial Code to the duty of ministers to abide by international law has been removed--convenient if one does not want to abide by international treaties.

Ministers continue to have a general duty to comply with the law but, in a very significant move that received no parliamentary scrutiny, Suella issued new guidance for government lawyers on "legal risk." The intent was to loosen legal constraints for ministers who were in a hurry, those who wanted to bypass Parliament and the democratic process. The former Attorney General believed that government lawyers were too risk-averse when advising ministers on legal risk.

The crucial change from the previous guidance (2015) concerns how legal advice on legal risk should be presented by lawyers to their political masters. It must be presented in such a way that it is not perceived as a hindrance to a proposed policy or course of action. In the past, it was normal to indicate the percentage probability of success of a legal action against the policy the government wanted to adopt. 

Now, thanks to Suella, even if there is a high risk of success of a legal action against the government, lawyers not only can but must advise that there is a sufficient legal basis to proceed. Only if there is absolutely no respectable legal argument that can be presented to a court in support or defense of the action the minister wants to take, should government lawyers advise that the proposed action is illegal. The government has become a gambler using taxpayers' money to make its bets.

For those who wish to keep the government on the straight and narrow this means even more applications to the courts, applications which ought to be rarities for a government signed up to the rule of law, but which are now becoming far more common.

We can also see the consequences of this significant change of approach in the controversy surrounding the Manston processing centre for asylum seekers. Suella, the now Home Secretary, denied that she had “ignored legal advice” from officials that she would be acting unlawfully if she failed to approve alternative accommodation to reduce overcrowding there. She was able to do this because under the terms of her own Guidance, she would have a “sufficient legal basis” for taking that course even if departmental lawyers were advising her that there was a high (more than 70%) chance of a legal challenge succeeding.

Both the Prime Minister and the Chancellor of the Exchequer have acknowledged that restoring our economic credibility post Johnson and Truss means rebuilding trust in the UK’s institutions and political actors. Given the importance of the rule of law to economic credibility, that surely ought to include restoring trust in the UK as a rule of law regarding nation.

There are many things which need to be done, but reinstating the explicit reference to international law in the Ministerial Code and reverting to the Government Legal Department’s earlier Guidance on Legal Risk would be a good start. Without that, the new Government will continue to inflict economic self-harm. The damage already done by its predecessors to the UK’s former international reputation for abiding by the rule of law will continue.

Paul Buckingham

19 November 2022