Rule of law: a missing principle in politics

Sharing a blog post from 2017, for those interested.
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Law, legislating and mental health are complex topics, unfathomable to some and to be avoided as much as politics and religion to others. What many a layperson fails to understand is that the laws by which we lead our lives reflect the society in which we live and therefore, the process of selecting, or rather, electing those to have the power to make those laws and rules is one of the most important ones an adult can ever make.

Like so many things around us, too many of us take this right to make a careful, reasoned choice for granted and ignore the significance of and correlation between politics and law. The law-making begins with elected representatives proposing and voting in Parliament (among many other procedures) on what will affect all of our lives.

Nonetheless, it is all too common to hear of politicians being out-of-touch and being held by the public to be above the law, doing as they please and covering up facts, data and activities when they deem fit. Now, criticism is as easy to hand out as it is to tar all with the same brush. So much so that it is equally easy to forget that politicians are human beings who can not only make mistakes but often fall victim to political scheming and are as vulnerable to being made scapegoats to satisfy a political will or the egotistical grandeur of their counterparts.

The notion of being above the law mentioned above is an interesting one and we must set aside for now the concepts of laws and rules to realise that those laws and rules, and their very creation, are underpinned in UK law by this great thing known as the rule of law. It is a "doctrine", in other words, an unwritten set of principles, the starting point of which is that to whom the law applies must not be arbitrary, it must apply to every person. This includes what individually we perceive as good or bad and I will briefly describe each principle of the rule of law and consider how it is seemingly disregarded particularly in a political setting.

Retrospective legislation is one of the UK's cherished underlying principles. The essence of this is that if a law did not exist at the time an offence was committed, it cannot be applied should it later come to exist as law.

A term often heard recently is certainty, and legal certainty is one of those underlying principles in law-making. This means laws must be enforced and applied in a way that essentially is predictable and that the guilt of a person must only be determined in the normal legal manner through the normal trial process.

The next principle, equality, is fairly simple to define: everyone is equal and should receive fair treatment. It also establishes the right to protection from discrimination from the state. Outlining the rule of law principle, AV Dicey specified that the state should be seen to treat officials in the same way as ordinary citizens, i.e. through the same legal and judicial processes and in the same courts since it is important to show that the state is not being sympathetic to its own.

A further principle is fairness. Again, a simple term which means that everyone should have access to the law, i.e. know what it is, and it should be sufficiently clear to all in order to avoid unjust discrimination.

Due process is the principle which lays down that a person must only receive punishment for his or her acts where there is substantial and sufficient evidence of their guilt. A person cannot lose their liberty, for instance, until it is proven that they have committed the alleged wrong-doing.

Certainty is the first principle where we find ourselves at odds where politicians are concerned. Some would say there is nothing more brutal than having a job, then every four and a half years having to fight for it in the most public manner possible, after which life may never be the same again. More brutal is when accusations fly over a politician's activities and without proof or investigation, they are essentially subjected to public flogging fueled by the media. Where is legal certainty in the processes available to him or her in this public arena?

Many will argue the state is guilty of being sympathetic to and protecting its own. However, the flip side to this is that with the public flogging to which political figures are subjected, the target of accusations typically receives considerably less than sympathetic treatment from some of his or her political peers or seniors, all of which are again fueled by media reactions and speculation. When this happens the political target is denied the right to the same legal and judicial processes as the ordinary person.

Considering the principle of fairness, how can the notion of unjust discrimination be avoided when headlines consisting of less than half a dozen words condemn a person before any formal hearing? Surely if the state applies its own internal rules in regard to that person which results in their public flogging leaving them to metaphorically bleed to death in the face of allegations made public with no hearing or proven fact, the state is in fact guilty of unjust discrimination?

When these unofficial public proceedings take place, the political target is punished from the second an inkling of information is made public, stripped of all dignity, privacy and, significantly, rights. The question must be asked: why do these principles of justice not apply to the practices of political organisations and within governmental or parliamentary establishments?

The principle of equality before the law does not exist in these circles. Contrast an individual accused of murder, rape or offences against children with the political figure. The former can be sat down safe in his or her anonymity, with a lawyer, reviewing the allegations against them before he or she is invited to respond to any questioning and put forward his or her defence. The latter is publicly condemned to a death sentence before full facts are known or proven. This is a very worrying state to live under.

We may despise politicians and we may criticise them but if we can easily brush aside the fact they are sentient beings like the rest of us, we allow the political establishments to be a law unto themselves. Consequently, we allow the establishment to deny these people a fair hearing based on principles of equality, to subject them to discrimination by reason of their status and to ignore the principle of innocence until proven guilty that every one of us would expect. If we tolerate this, both society and the political establishment are a shambles. It must be challenged and it must be obliged to change.