It may seem strange, but there is no internationally agreed definition of the Rule of Law. Of course, there are many countries which have constitutions and so abiding by these might seem to be fundamental to abiding by the rule of law.  But not always. For example, although China has a constitution, we do not normally think of it as a country which abides by the Rule of Law. The constitution itself excludes the exercise of what we would regard as normal democratic liberties. There is an absence of, for example, the right to free speech, the right to protest or the right to put yourself forward as a candidate at an election without the consent of the government. This would be seen by most people as creating a system which was far removed from the rule of law and so turn it into its antithesis, a dictatorship.

But we don’t need to take such an extreme example.  Sometimes, constitutions, drawn up centuries ago, can be used in circumstances beyond the contemplation of the founding fathers in order to do harm.  A good example is the constitution of the USA.  The involvement of politicians in the appointment of Judges at all levels, and particularly the Supreme Court, has lead to appointments based on partisanship rather than merit and an intention to act in an unbiased way.

We have seen this in the American war over abortion, the so-called ‘Right to Life’. It is a fight which is in fact designed to put judges in power to uphold religious principles. Just like the Mullahs in Iran. This is so even though three quarters of the people are broadly happy with the existing statement of the law in Roe v Wade. Amongst voters as a whole, only 13% want to see the ruling completely overturned, whereas 31% of Mr Trump’s followers take the far more extreme view of the right to life, which a reversal of the decision would produce. They also of course wish to retain the right to bear arms in order to kill trespassers. And so, in my view, the great American constitution is being used in a way which is contrary to the rule of law. Activists openly try to produce a biased judiciary and Presidents go along with them.

But then we have the international aspect of the Rule of Law. Should we actually give International treaties the same status in terms of the Rule of Law as our domestic law – or some lesser importance?  Is an international treaty simply a contract between states?  If it relates to trading relations between states, then despite the bad feeling and lack of trust engendered by a refusal to abide by a treaty, the parties can simply go back to how it would have been if the international treaty did not apply.  In that sense, therefore, their status is lower than domestic law. Although arbitration clauses are often included in international treaties, in their absence there is no international tribunal which is competent to rule on the breach, and even less to enforce its decision.

But there has been an attempt for very many years to alter this, to make international law more like national law – both justiciable and enforceable. A good example of this is the World Trade Organisation, which interprets its rules in case of a dispute between countries and can award monetary remedies to the wronged party. At the moment, however, the American government, in an egregious attempt to sabotage the whole treaty, is refusing to agree new appointments to the panel of judges. And so the WTO is currently toothless. There is obviously no requirement to approve any particular person for a vacant role, but to fail to approve anyone at all is a failure by the USA to act in accordance with its treaty obligations and so abide by the rule of law.

Of course there are many international treaties which have nothing to do with trade, but relate to other things - such as recognition of the status of other countries diplomats, extradition of alleged criminals to stand trial or the recognition of borders. In the case of the Northern Ireland Protocol, it is a mixture of things.  At root, it is an attempt to avoid breaching the Good Friday Agreement. It is worth remembering that the agreement, sponsored by the British, Irish and American governments and the EU brought peace to an area of Britain affected by bloodshed and death.

The ‘troubles’ led to more than 3,500 deaths and thousands of injuries in the 30 years up to the signing of the agreement. The compromise was the abolition of border posts between Northern Ireland and the Republic of Ireland, whilst not acceding to the nationalists’ demand for a United Ireland.  Britain and Ireland, as members of the EU, became a kind of Schengen zone. So then, to accommodate a Britain no longer in the EU, the whole arrangement has had to be revisited. Somehow there have to be customs checks without creating a customs border on the island of Ireland. Boris’s surprising solution, previously rejected by Theresa May, was that of customs checks somewhere between Northern Island and mainland Britain, although he did say immediately afterwards that no-one would have to fill in any customs forms – a harbinger of the present situation?

There has been a so far unsuccessful attempt to agree a list of goods, for instance food supplies to supermarkets, that are not at significant risk of being exported into the EU via its Irish border. If they were on the list, then they would not need to be subject to any significant customs procedures.  I imagine that this is what Johnson is referring to in a highly exaggerated way when he says that the EU can stop NI supermarkets from stocking their shelves - even though it can’t do so.  He though wants the power to determine which goods are ‘at risk’ of entering the EU and so subject to EU tariffs. An extraordinary power grab!

It may also be related to the fact that our sanitary standards for meat exports, at the moment the same as those of the EU, have not yet been incorporated into domestic British law. This means that the EU is saying that they could not give blanket acceptance to imports into the EU of our meat products post-December. They do not want to rely on trust when chlorinated chicken is waiting in the wings following on from the anticipated treaty with the USA. 

“Sometimes you have to break the law when you are facing horrible interference from abroad.”.  No, not something Boris has said, but President Lukashenko, the gentleman who wishes to get support from Mr Putin the poisoner. But it sums up Boris’s attitude as well.  Maybe though we’re being unkind to him.  I suppose that if you're not a details person, you can easily imagine that you're signing a treaty about, say mining rock on the moon, instead of one about the far away province of Northern Ireland, with all its potentially bare-shelved supermarkets. Except he still doesn't seem to have a grasp of the detail, as the Protocol doesn't actually let the EU prevent the shelves being filled. Which raises the question: can he actually read English or is it just Greek and Latin in which he is proficient?

So then we have a government willing to tear up a treaty because there might be too much ‘red tape’ involved in getting goods to Northern Ireland and because the government has not yet done its job of incorporating existing standards into our domestic law. For these reasons we are willing to be regarded as a wholly unreliable trading partner, one which may change its mind at a moment’s notice, regardless of the Rule of Law.  That’s how we get Brexit done!

Paul Buckingham

16 September 2020