Nick Jones – Winning Entry

Graham Turnbull essay competition 2019 Has the rule of law been replaced by the rule of politics? Nick Jones – winning entry Introduction Throughout his 2019 Reith Lectures, Jonathan Sumption advanced a case for the re- emergence of the political sphere, as a remedy to a British judicial system which has come to claim a “wider supervisory authority over other organs of the State.”1 Crucially, he placed legitimacy – “a vital but elusive concept […which] is still the basis of all consent”2 – at the very heart of his analysis. It is precisely the democratic legitimacy inherent to politics, he argued, that renders it a more appropriate decision-making vehicle than legal adjudication, particularly in the field of human rights. Whether Lord Sumption is correct on this latter point is not the primary focus of this essay (several substantive critiques have already emerged, including from his former Supreme Court colleague, Baroness Hale).3 However, his notion of legitimacy is absolutely central to conflicts between the “rule of the law” and the “rule of politics”, begging the question: what happens when they collide? This essay will seek to unravel this tension by arguing that the two concepts necessarily co-exist and, increasingly, conflict with one another. Far from being mutually exclusive, these two sources of legitimacy offer competing frames of reference justifying both governance, and the conferral or revocation of rights. Indeed, there is politics, on the one hand, and law, on the other: the key question is discerning which one “rules” when each is claimed as justification for opposing outcomes. Conceptual definitions Although thinkers from all standpoints have lauded the rule of law as a central tenet underpinning the liberal democratic model, a commonly held definition remains elusive. For the purposes of this essay, it suffices to group the available definitions into two clusters: those which have been called “thin” definitions, advanced by thinkers such as Joseph Raz, and those labelled “thick”, as theorised by Thomas Bingham. In the former, the relevant characteristics are formal in nature: the rule of law merely describes the open and clear 1 Jonathan Sumption, ‘Law and the Decline of Politics: In Praise of Politics’ (Reith Lecture series, London, 28 May 2019) <http://downloads.bbc.co.uk/radio4/reith2019/Reith_2019_Sumption_lecture_2.pdf> accessed 20 November 2019. 2 Ibid. 3 Lady Hale, ‘Law and Politics: A Reply to Reith’ (Dame Frances Patterson Memorial Lecture, 8 October 2019). drafting of legislation, which is adhered to by all and supplemented by basic features such as an independent and accessible judiciary. This, Raz states, is the “rule of law” rather than the “rule of good law”.4 For Bingham, on the other hand, the protection of fundamental rights is a necessary substantive component, since “a state which savagely represses or persecutes sections of its people cannot in any view be regarded as observing the rule of law”,5 even if the basis for doing so is consistent with the principles highlighted by Raz. Plainly, politics is far from alien to either concept. On the contrary, it operates firmly within both depictions of the rule of law: political groups vie for control of legal mechanisms, in order to use and change them for their own ends. How, then, might a line be drawn between law and politics as sources of legitimacy? As alluded to in the introduction, the heart of the question is found at their intersection. For although they coexist, the rule of law and politics are frequently presented as distinct justifications for contrasting ends. Most plainly, this occurs when actors do not possess the legal mechanisms necessary to fulfil their aims, but proceed regardless. The rule of politics, read in this light, can be described as the pursuit of political ends in spite of the existence of legal mechanisms standing in their way. Importantly, such a state of affairs would constitute a step far beyond the mere notion that politics is simply more important or more appropriate than law: it would signal a fundamental shift in the source and scope of social change. Legal rights, political wrongs? The events surrounding the failed return of Shamima Begum to the United Kingdom following the collapse of the Islamic State provide an illustrative example of this conflict, with human rights at its very heart. After Ms Begum’s intentions became publicly known, the former Home Secretary, Sajid Javid, announced the formal revocation of her British citizenship, denying her the right to re-enter the country. The purported authority for doing so was Section 40(2) of the British Nationality Act 1981, which states: “The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good.” As was immediately highlighted in response to the Home Secretary’s decision, an accompanying caveat mandates that such an order may not be made where it would render that individual “stateless”. That this was true of Ms Begum (the government of Bangladesh rejected the idea that she might be granted citizenship of that country),6 did not, however, prevent the order from being issued. Indeed, as Lucia Zedner notes: “loss of citizenship can be challenged only after the order 4 Joseph Raz, The Authority of Law: Essays on Law and Morality (Clarendon Press 1979) 227. 5 Tom Bingham, The Rule of Law (Penguin 2011) 67. 6 BBC, ‘Shamima Begum will not be allowed here, Bangladesh says’ (BBC, 21 February 2019) <https://www.bbc.co.uk/news/uk-47312207> Accessed 20 November 2019. has been made”, a process which is logistically problematic when that individual is overseas.7 This case was one in which the rule of politics was pitted directly against the rule of law, with the former emerging victorious both in terms of the end result and, perhaps more importantly, regarding its framing within the national consciousness. Indeed, rather than the legal reality of the relevant facts and the Home Secretary’s statutory duties taking centre stage, the debate was predominantly framed by the factual and emotional merits of the case. Thus, on the one hand it was argued that Ms Begum should not be allowed to return because she had actively chosen to join a “murderous cult”,8 whilst on the other hand it was held that she should be brought home out of “compassion”, on the grounds that the malicious radicalisation of her as a vulnerable teenage girl is a key explanatory factor.9 Yet neither argument addresses the fundamental issue: where the law speaks, there is little space for merit, governed by political will, to enter the frame. That the law mandated Ms Begum’s continued citizenship should have concluded the matter, with political arguments a mere supplement or, at most, a call for future reform. Perhaps most troublingly of all, Mr Javid himself positioned his arguments within the case’s merits, stating: "What about the danger and the risk to the country of that [Ms Begum returning to the UK]? What about the impact on community cohesion if people come back to the country and use their presence here to try and racialise others? I have to weigh that up too” [emphasis added].10 What this episode tells us is that such developments have the potential to transform wholly legal questions into purely political debates. When this happens, the tension between the two is thrust to the fore, with potentially damaging consequences for justice: politics ceases to merely coexist with the rule of law, and instead comes to undermine its key principles as defined by both Raz and Bingham. In other words, politics rules in its own right, through the legitimacy it claims in factors existing outside of the rule of law. 7 Lucia Zedner, ‘Citizenship Deprivation, Security and Human Rights’ [2016] 18(2) European Journal of Migration and Law, 232. 8 Allison Pearson, ‘Shamima Begum chose to leave the UK to join a murderous cult. Why should we pay to take her back?’ (The Telegraph, 16 April 2019) <https://www.telegraph.co.uk/women/life/whatever-becomes-shamima-begum-will-no-justice-rest-us/> Accessed 20 November 2019. 9 Dawn Foster, ‘Britain could deradicalize Shamima Begum – with compassion’ (The Guardian, 18 February 2019) <https://www.theguardian.com/commentisfree/2019/feb/18/britain-deradicalise- shemima-begum-isis> Accessed 21 November 2019. 10 Gareth Davies, ‘Sajid Javid defends stripping Shamima Begum of her nationality, saying he would not make someone 'stateless' (The Telegraph, 21 February 2019) <https://www.telegraph.co.uk/news/2019/02/21/sajid-javid-defends-stripping-isil-bride-nationality- saying/> Accessed 19 November 2019. An international conflict We have seen how the rule of politics and the rule of law can constitute competing sources of legitimacy. The ongoing developments in Poland and Hungary provide an opportunity for situating this phenomenon within an international context, since both nations have been gripped by “rule of law crises”11 revolving around controversial judicial reforms. Contrasting with the individuated citizen-executive dispute underpinning the Shamima Begum affair, the frame of reference governing these conflicts is nationalistically adversarial: A Member State claims rule-of-politics legitimacy, on the one hand, whilst the European Union claims rule-of- law legitimacy, on the other. Nevertheless, the underlying features remain strikingly similar. Crucially, symbolism centred on the law-politics cleavage has underpinned the dialogue between the two states and the European Union, with each national government claiming political mandates as justification for flagrant impingements of the rule of law. Indeed, Renata Oitz observes that Polish judicial reforms were partly structured in a way that would alarm the European Commission: “it was essentially making a move that it knew it would have to retract at some point.

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