Student
Law Journal
S T U D E N T L A W J O U R N AL
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VOL.1 2015
J OUURRNNALAL
S ST TUUDDE ENNT T L LAAWWJ O
University of Bradford Student Law Journal 2015 No 1 Vol 1
The abuse of law and the erosion of democracy
Kieran Ashraf
Abstract
This paper seeks to establish how inquiries are used to assess the decisions of Tony Blair’s
government, and to show how they have failed to produce an account that would satisfy the
rule of law. It reinforces the importance of the rule of law and assesses its significance, or
lack of, in policy. It also explores the effects of the erosion of the rule of law and its
implications in the context of policy.
Introduction
The rule of law is the cornerstone of the British constitution, and its importance stems from
an unwritten constitution and a lack of foundational rights. However, it has been criticised for
its lack of precision caused by ‘ideological abuse’.1 Indeed, it seems paradoxical that such a
fundamental component of British law is difficult to define, though one could argue for its
elusiveness2 as it clarifies the open ended nature of law as an institution.3 However, the
paradigms of democracy have been eroded through the abuse of executive power,4
contributing to the erosion of the rule of law and its democratic connotations.5
The function of the Diceyan exposition is to preserve a system of checks and balances that
essentially limit the probability of abuse of power by the executive; according to Allan, the
rule of law ensures that the executive acts within the remits of power extended to it by
Parliament, and the judiciary provides an additional protection through judicial review.6
Allan also observes how the judiciary and Parliament act in tandem in order to ensure that
there is no arbitrary exercise of power and the law enforced is that which has been exposed to
the usual mechanisms.7 However, this demonstration of the rule of law does not explain how
it failed to protect the democratic principles of ministerial accountability and could not hold
the Blair administration liable for misleading the electorate8 during the Iraq war. Moreover,
one must question the weight that the rule of law exerts over the democratic principle of
ministerial accountability, as it has been afforded little importance considering the absence of
palpable culpability in the Blair administration for the mistakes that culminated in the Iraq
War.9
1
L Bingham, ‘The Rule of Law’ (2007) 66(1) Cambridge Law Journal 67.
ibid 68
3
R Greenstein, ‘Why the rule of law?’ (2005) 66(1) Louisiana Law Review 63.
4
J Blitz, ‘Blair faces new questions on Iraq war’ Financial Times (2005) 04 (1), 1.
5
D Marquand, ‘Democracy in Britain’ (2000) 71(1) Political Quarterly 269.
6
TS Allan, ‘Legislative Supremacy and the Rule of Law’ (2009) 44(1) Cambridge Law Journal 111.
7
ibid
8
See n 4.
9
See n 4.
2
1
University of Bradford Student Law Journal 2015 No 1 Vol 1
The erosion of the Rule of Law
The rule of law demands transparency of government.10 This means that the electorate has the
right to know the reason behind every political decision. Moreover, every decision requires
the relevant support from Parliament. Effectively, the Prime Minister (PM) does not have the
power to act without the support of democratically elected cabinet members.11 This is
important as every individual who has an input is accountable to Parliament and the public.
However, there is no law that affirms this, only a convention of ministerial accountability. 12 It
was clearly absent from the Blair government; indeed, the former PM was infamous for
making key decisions with the unelected instead of with members of his own cabinet.13 It
could be argued that a cabinet oriented government may have saved him from sanctioning
intervention in Iraq.14 In actual fact, many cabinet ministers did not even have the chance to
view the Iraq documents, and others failed to resign in rejection of Blair’s decision to enter
the war.15
One has to note the role of the law in the former PM’s presidential style of leadership16 that
granted him the freedom to deceive parliament; yet it can be argued that Blair did not break
the law, he simply altered the constitution to suit his policies.17 Indeed, according to sources
directly from Parliament, there was no description of a PM’s role in government until the
production of a Cabinet Manual in 2010.18 This explains how the former British Minister,
Tony Blair, did not feel the need to abide by strict rules since there was no written
constitution preventing him from consulting with President Bush in secret, 19 in a nutshell, the
law was of little significance in deterring the former PM’s conduct in the days leading up to
the UKs entry into Iraq. Indeed, Burch and Holliday20 noted how there was a need for
parliamentary committees to concentrate on collective ministerial responsibility in response
to the ‘realities in power shifts’ caused by Blair’s central government.21
Despite allegations22 of misleading Parliament and the cabinet in relation to the Iraq war,
Tony Blair has not been held to account by a parliamentary committee or an inquiry, as of
yet.23 It could be argued that Blair was within legal remits as he acted on the advice of the
10
Allan (n 6).
Bingham (n 1).
12
V Bogdanor, ‘Ministerial accountability’ (1997) 50(1) Parliamentary Affairs 71.
13
Anonymous, ‘Campbell's soup’ The Economist (14 January 2010).
14
Sue Cameron, ‘The black hole that displaced Blair's cabinet’ Financial Times (20 January 2005).
15
See n 13.
16
M Foley, ‘The presidential dynamics of leadership decline in contemporary British politics: the illustrative
case of Tony Blair’ (2008) 14(1) Contemporary Politics 53.
17
P Norton, Tony Blair and the Constitution (2007) 2(1) British Politics 269.
18
See
Parliament,
‘Prime
Minister
Office,
Role
and
Functions
Bill’
(2010)
<http://www.publications.parliament.uk/pa/cm200102/cmbills/060/2002060.pdf> accessed 1 April 2015.
19
A Sparrow, ‘What Tony Blair said in his secret Iraq war letters to George Bush’ Guardian (18 March 2010)
<http://www.theguardian.com/politics/blog/2010/mar/18/tony-blair-george-bush-iraq-letters> .
20
Martin Burch and Ian Holliday, ‘The Blair Government and the Core Executive’ (2004) 39(1) Government
and Opposition 1.
21
ibid
22
L Jones, ‘Did Blair knowingly mislead Parliament over Iraqi WMDs? Asks The Economist’ Washington
Report on Middle East Affairs 22 (1) (2003).
23
David Whyte, ‘Don’t mention the motive for war’ (2010) 82(1) Criminal Justice Matters 8. David Whyte
discusses why the Chilcot Inquiry will not hear the most readily available and concrete evidence of British
government crimes.
11
2
University of Bradford Student Law Journal 2015 No 1 Vol 1
attorney general and his policy received the backing of parliament. 24 However, the legal basis
of Tony Blair’s actions is cast into doubt if one considers Lord Goldsmiths primary advice, 25
a leaked product of the inquiry into the war.26 Goldsmith held that ‘military action would be
unlawful’.27 However, he subsequently changed his mind, but there was no legal basis for
him doing so as the relevant UN resolution could not be relied upon. 28 It seems that the
former PM considered his decision to be above the law, and therefore he was free to act
without reprimand. Indeed, Parliament itself could not act as a safeguard against the
unrestrained power of the executive as its role was reduced to that of rubberstamping the
demands of the PM.29 As Lester notes, the whole debacle that occurred during the Labour
government’s time in power has damaged the credibility of government and questioned the
relevance of the rule of law in decision making.30
What is in dispute is if the former PM can retrospectively be held to account for the secrecy
of his actions. Moreover, what are the repercussions for the rule of law if Tony Blair is not
held to account? Inquiries are the preferred method of holding a former government to
account;31 they have the dual purpose of discovering concrete facts and ensuring that
information is available for dissemination by the public. Despite this notion, it could be
argued that inquiries have little impact because they fail to ‘to confront governments over
cases where the national interest appears to be involved’.32 However, the government
preserves public interest in the inquiry through the intentional leaking of information through
the media,33 moreover, there is a false importance attributed to inquiries as the head of the
inquiry usually emanates impartiality.34 In addition, the further the inquiry is from political
actors, the more likely it will receive a favourable reception.35 In essence inquiries constitute
a smokescreen to cover the cracks in the unwritten constitution.36
24
Matthew Tempest, ‘Parliament gives Blair go-ahead for war’ Guardian (18 March 2003)
<http://www.theguardian.com/politics/2003/mar/18/iraq.iraq6> accessed 16 April 2015.
25
Anonymous,
‘Goldsmith's
advice’
Financial
Times
(27
April
2005)
<http://www.ft.com/intl/cms/s/0/8afd5778-b756-11d9-9f22-00000e2511c8.html#axzz3i23YgQKx> accessed 16
April 2015. An extract from Attorney General Lord Goldsmith’s advice to Prime Minister Tony Blair on 7
March 2003.
26
BBC,
Lord
Goldsmith's
Iraq
war
legal
advice
published
(30
June
2010)
<http://www.bbc.co.uk/news/10471170> accessed 16 April 2015.
27
See Lord Goldsmith’s advice (n 25).
28
C Ames, ‘Blair and Bush planned Iraq war without second UN vote, letter shows’ Guardian (29 August 2011)
<http://www.theguardian.com/politics/2011/aug/29/tony-blair-iraq-un-resolution> accessed 16 April 2015.
29
See Burch and Holliday (n 20).
30
A Lester, ‘Lord Goldsmith's folly has now been brutally exposed’ Guardian (1 February 2007).
<http://www.theguardian.com/commentisfree/2007/feb/01/comment.partyfunding> accessed 24th March 2015.
31
D Resodihardjo, ‘Wielding a Double-Edged Sword: The Use of Inquiries at Times of Crisis’ (2006) 14(4)
Journal of Contingencies and Crisis Management 199.
32
C Peevers, The Politics of Justifying Force: The Suez Crisis, the Iraq War, and International Law (2nd edn,
OUP 2013) 190.
33
See Lord Goldsmith’s advice (n 25).
34
See Ames (n 28).
35
See Lord Goldsmith’s advice (n 25).
36
John Baker, ‘The Unwritten Constitution of the United Kingdom’ (2013) 15(1) Ecclesiastical Law Journal 4.
3
University of Bradford Student Law Journal 2015 No 1 Vol 1
The Hutton Inquiry37 is an illustrative example of the shortcomings of political inquiries.
Indeed, the inquiry was supposed to establish the reason behind the suicide of Dr David
Kelly,38 who had provided the government with intelligence information about weapons in
Iraq when in fact there were no nuclear weapons in existence. 39 Public disapproval40 was
vented in the form of academic criticism,41 which questioned the ‘ability of such inquiries to
produce a dispassionate, impartial, and most importantly, a fair report’42 of the facts. Indeed,
one can contrast the success of inquiries into public services producing successful law that
constrained such services, such as the Cleveland inquiry43 and the subsequent Children Act
1989.44 No such sequence followed the Hutton inquiry, emphasising the dichotomy between
the ‘ruling class’45 and the masses, indeed, the integral principle of ‘reciprocity’,46
fundamental to the internal morality of the law,47 was abandoned. To clarify, Fullers’48 idea
of reciprocity essentially means that ‘the government abides by the rule of law and, in return,
citizens obey the law’,49 but the Hutton inquiry, which was supposed to produce a conclusion
that provided a justification for the government’s actions, failed to adhere to the requirements
of justice and reciprocity. The rule of law is averse to any form of secrecy, and it is evident
that the policies behind the Iraq war were disguised under the cloak of legitimacy.
Changing the rule?
On a different note, Baker emphasises the dangers of ‘legislative hyperactivity’ 50 in recent
governments that has resulted in ‘deterioration in the quality of legislation’. 51 This
emphasises how the law, as an institution, has been undermined. It could be argued that
judicial review is the most effective method of preserving the precarious system of checks
and balances that will act as a safeguard against the use of excess power by the executive.
However, there has been an elevated level of concern at the undemocratic use of judicial
review,52 which seems concerning if one considers the dangers to democracy presented by the
excess power utilised by the government. Indeed, if judges were elected, this would ensure
that their loyalties were to the electorate and to the rule of law, moreover, this may have the
effect of deterring future governments from deceiving Parliament. It would also serve to
37
A Doig, ‘The Hutton Inquiry: Origins and Issues’ (2005) 58(1) Parliamentary Affairs 104.
V Dodd, ‘Dr David Kelly: 10 years on, death of scientist remains unresolved for some’ Guardian (16 July
2013) <http://www.theguardian.com/politics/2013/jul/16/david-kelly-death-10-years-on> accessed 16 April
2015.
39
See Whyte (n 23).
40
O Jones, ‘We anti-war protesters were right: the Iraq invasion has led to bloody chaos’ Guardian (12 June
2014)
<http://www.theguardian.com/commentisfree/2014/jun/12/anti-war-protesters-iraq-invasion-bloodychaos> accessed 16 April 2015.
41
See Jones, ‘Did Blair knowingly mislead Parliament over Iraqi WMDs?’ (n 22).
42
See Ames (n 28).
43
N Davis, ‘Implications of the Cleveland Inquiry’ (1988) 297 (6646) British Medical Journal 487.
44
Children Act 1989 c 41.
45
M Benner, ‘Hart and Raz on the non-instrumental moral value of the rule of law: A...’ (2011) 30(5) Law and
Philosophy 603.
46
ibid 607.
47
ibid 609.
48
ibid 607.
49
See ibid.
50
ibid
51
Baker (n 36) 4.
52
AP Le Sueur, ‘The Judges and the Intention of Parliament: is Judicial Review Undemocratic?’ (1991) 44(3)
Parliamentary affairs 283.
38
4
University of Bradford Student Law Journal 2015 No 1 Vol 1
elevate the importance of legal accountability over futile conventions, 53 though it remains to
be seen if the public would support the dissemination of a public figure over a policy he
adopted in an open court.54
It is of concern to the rule of law that Blair did not resign after the public was made aware of
the truth behind the Iraq War, his behaviour stands in stark contrast to the behaviour of
Anthony Eden after the pivotal failure of the Suez Crisis.55 The omission to accept
responsibility for his decision is summarised by an award-winning Indian author, Siddharth
Dhanvant Shanghvi: ‘Blair will be remembered as the head of state who retired with blood on
his hands’.56 If one tries to justify the former Labour government’s actions, it can be
explained by the mentality57 of successive governments in elevating the presence of the UK
on the international stage. Therefore, there seems to be a professed right to use policy and law
in this regard. It can be suggested that an appropriate safeguard to the preservation of the
importance of the law, in order to prevent the critical exercise of power, would be a
reformulation of the rule of law, enforced in a piece of legislation that will constrain the remit
of executive power. To clarify, the rule of law would be compulsory, instead of an archaic
compliment to democracy in the UK.58 In a hypothetical scenario, the substance of the rule
will be derived from experts in jurisprudence, for example Finnis and his theory that law
should cater to the ‘common good’.59
The Rule of Law and policy
Caroline Lucas set out the legal implications following Blair’s blatant misleading of
Parliament; she questioned the lack of accountability of Tony Blair’s administration in
acquiring false evidence to fund a policy that had no legal basis, she also conveyed that
where a public service had failed there would be consequences, yet there was a clear absence
of consequences for Parliament when ‘parliamentary scrutiny failed’.60 It seems that evidence
was collated in order to ‘work up a plan’61 in order to obtain ‘legal justification for the use of
force’.62 Moreover, Blair was secretly furthering the policy of regime change, under the
pretext of disarmament.63 As a result, a picture emerges of Blair not only disregarding the
law, but manipulating it to his advantage, in order to fund his secret agenda. This fact, if
proved by the Chilcot Inquiry,64 conveys that the law is a tool that is subjugated to the much
53
D Woodhouse, ‘Ministerial responsibility in the 1990s: When do ministers resign?’ (1993) 46(3)
Parliamentary Affairs 277.
54
See Ames (n 28).
55
Anonymous, ‘Blair's Suez’ Financial Times (2002) <http://search.proquest.com/docview/228649572?pqorigsite=summon> accessed 15 April 2015.
56
Anonymous, ‘Tributes and brickbats: Reaction to Blair's Resignation’ Financial Times (27 June 2007)
<http://www.ft.com/intl/cms/s/0/919fa2b4-24b6-11dc-bf47-000b5df10621.html#axzz3i23YgQKx> accessed 15
April 2015.
57
Anonymous, ‘British Empire’ (1923) 7(2) International Labour Review 105.
58
See Greenstein (n 3).
59
George Duke, ‘Finnis on the Authority of Law and the Common Good (John Finnis)’ (2013) 19(1) Legal
Theory 44.
60
Caroline Lucas, ‘Iraq War, 10 Years On: my speech to Parliament’ (2013)
<http://www.carolinelucas.com/latest/iraq-war-10-years-on-my-speech-to-parliament> accessed 16 April 2015.
61
ibid Rt. Hon. Member for Blackburn
62
See Greenstein (n 3).
63
ibid
64
See Whyte (n 23).
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University of Bradford Student Law Journal 2015 No 1 Vol 1
bigger and selfish creature that is politics. The rule of law, by itself, is not enough to protect
itself from policy.65
Conclusion: the Rule of Law is defeated
The rule of law demands clarity.66 According to Fuller67 rules have to be ‘clear and
understandable’; conversely the rule of law has a variety of meanings that renders it
susceptible to ownership by ‘irrational and repressive governments’. 68 Rose argues that
complete adherence to the rule of law may be undesirable for some governments,69 leading us
to the question of whether or not the security of the state is commensurate to the risk of
sacrificing the rule of law. It seems as if the willingness to dispense with the law has
diminished the importance of justifying the departure from the rule.70 The actions of Tony
Blair are difficult to understand, if one utilises the microscope of the law, it is evident that
such actions are an example of ‘adversarial, atomic human relations’71 and he has prioritised
such conduct. One can conclude that there is a divide between the ‘ruling class’ 72 and the
masses, with law acting as a constraint upon one and as a habit of the other. Consequently it
seems that the unjustified power of the executive73 is the price to pay for modern democracy.
65
See Greenstein (n 3).
Jonathan Rose, ‘The Rule of Law in the Western World: An Overview’ (2004) 35(4) Journal of Social
Philosophy 457.
67
ibid 459
68
ibid 460
69
ibid 463
70
See Rose (n 72) 463.
71
ibid 465
72
ibid
73
See Le Sueur (n 52).
66
6