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Double agents, nerve agents, and the rule of law

By John de Meyrick - posted Wednesday, 21 March 2018


It's happened again!

Somehow the alarming events of recent days about which the UK Prime Minister, Theresa May, has accused Russia of the attempted murder of former double agent Sergei Skripal and his daughter by use of the lethal nerve agent Kovichok, has been characterised in statements made in the UK Parliament as an assault on the rule of law.

Here we have yet another example of the misunderstanding and misuse of the term the rule of law in relation to circumstances that have no relevance to that term or the concept to which it relates.

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The rule of law, as I pointed out in my earlier article,The rule of law: what does it really mean? is a concept of constitutional law which has been with us for centuries. The term is found in the writings of Aristotle and Plato in ancient Greece and, although Magna Carta in 1215 did not 'invent' it (as some people claim) the barons certainly tried to force it on King John without success.

Until we celebrated the 800th anniversary of the sealing of Magna Carta in June 2015, the term was rarely used as part of the everyday language of politicians, journalists and other commentators. It was largely only known and referred to by constitutional lawyers in their studies and writings on constitutional matters.

Since then however, the term has become a matter of regular use by one and all, from pubhouse lawyers and philosophers to Prime Ministers, recent and present. Indeed, it seems to have slipped into everyday discourse without common understanding of its meaning. It is to be heard, rolling off the tongues of many (otherwise well informed) speakers and commentators in reference to any incident or situation where use of the term sounds learned and spoken of with authority yet blithe to its meaning and appropriate use.

So, what's going wrong?

Where the term, the rule of law, is being wrongly used, is in reference to matters where someone who, or some organisation which, is regarded as being in breach of the law, or is thought not to be abiding by the law; whereas the rule of law relates to a situation where those who rule and those who have authority over others are immune from the laws they impose. That is, by public officials, police, judges and heads of state (in our case the Governor-General and Her Majesty The Queen).

The distinction is important: the first is a requirement that each of us must abide by the law; the other is a constitutional concept that rulers and those who exercise authority should not be exempt from the law. (Put too simplistically by the phrase: No one is above the law).

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It will be readily observed that the two notions can be read and construed as being one and the same thing. They are. But in different contexts best illustrated by example:

A magistrate may impose a fine on a driver for speeding and drink driving. If the magistrate is caught in breach of the same offences (as has happened in Australia) then the law applies equally to that magistrate. But, if the constitutional system under which those laws are made, expressly exempts magistrates from the laws they have the power to impose, then that system is contrary to the rule of law.

In Australia the rule of law is paramount in our constitutional system. No, you can't find it stated as such in our Constitution any more than you can find it referred to in Magna Carta. But in both, the concept that those who rule and those who exercise authority over others are also subject to the laws they make or impose, is patent.

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About the Author

John de Meyrick is a barrister (ret’d), lecturer and writer on legal affairs.

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