Law & politics

Has Rule of Law backsliding begun in the UK?

Professor Laurent Pech, Head of the Law and Politics Department at Middlesex University, has been researching a worrying issue he has described as ‘Rule of Law backsliding’ for more than ten years.

Here, he claims there are signs suggesting that a process of Rule of Law backsliding which, in the EU, first began in Hungary before spreading to Poland, is getting underway in the UK.

Since the early 2010s, the EU has witnessed a startling breakdown in compliance with the rule of law, as some Member States’ governments systematically dismantle checks and balances in order, incrementally, to establish de facto one-party states.

My research has examined these systematic and coordinated efforts by some national authorities to undermine the rule of law, with my work especially concerned with the deteriorating situation in both Hungary and Poland.

In the last three years, we have witnessed a number of developments in the UK which are reminiscent of what we have seen in both Hungary and Poland.

For instance, the ‘will of the people’ appeal has often been used as a way to justify violations of the rule of law. The first signs of an unhealthy rhetoric in the UK could be seen too with judges and academics, and more recently lawyers, increasingly subject to abuse and intimidation tactics.

‘Enemies of the People’

In the wake of the Miller case, the attack on the judiciary and the ‘enemies of the people’ headline in the Daily Mail in November 2016 can be considered a hallmark of autocratic regimes as only an independent judicial system can enable individuals to vindicate their rights.

Similarly attacks on ‘pro-remain’ universities was another way to ensure that a counter, in the case of the UK anti-Brexit, discourse is muted.

No voices are thus left to proffer arguments against governmental policies which some may be tempted to justify in the name of ‘the will of the people’ regardless of whether they violate the rule of law or not.

A third parallel one could draw as early as 2016/17 was the attack against George Soros and his Open Society Foundations, both in Hungary as well as in the UK where Nigel Farage sought to investigate Soros funding. The anti-Semitic overtones of the anti-Soros rhetoric can be viewed as an attempt to garner the support of autocratic and nativist forces.

It would be unwise to assume that the UK legal and constitutional system will be strong enough to withstand the ongoing process of rule of law backsliding which seems to be gaining strength in the UK.

Attacking the judges and lawyers

Indeed, the election of Boris Johnson has been followed not only by worrying rhetoric but also, and more crucially, actual steps which could lead to an autocratisation by stealth of the UK.

One may refer here, for instance, to the repeated and dangerous attacks against so-called “activist lawyers” by the Home Office Secretary and the British PM himself. This kind of attacks on the legal profession not only undermine the rule of law but endangers the personal safety of lawyers.

Image of the UK Houses of Parliament with a red double decker bus in front

In this context, let me quote Sir Anthony Hooper, a retired Court of Appeal judge: “Once you’ve lost the independent legal profession, once the judges have become enemies of the people, the future health of this liberal democracy is very much at stake.”

And indeed, under the cover of this rhetoric characteristic of autocratic regimes in the making, we have also seen the unbecoming politicisation of the offices of the Attorney General and of the Lord Chancellor.

Legalising law breaking

In addition, as if this was not enough to worry you, the British government unlawfully prorogued Parliament under a false pretext and most recently, the British government, including the AG and Lord Chancellor, have defended the legalisation of lawbreaking via the UK internal market bill.

As the Select Committee on the Constitution of the House of Lords put it last month:

“Setting out explicitly to break international law in this way is without precedent. It jeopardises international obligations the UK recently ratified, undermines domestic law and is contrary to the rule of law.”

Yet more deliberate undermining of the rule of law is on the way with ongoing governmental work on judicial review and the announced review of the Human Rights Acts should be understood as further deliberate attempts to make the executive power in the UK unaccountable.

COVID-19 has changed the rules

It’s important not to overestimate the resilience of the UK’s constitutional arrangements to the authoritarian gangrene which first began in Orban’s Hungary, especially in a COVID-19 context which has made it easy for governments everywhere to bypass normal law-making procedures on a grand scale.

To avoid a process of what I have called in my research “constitutional capture” by the current political majority in the UK, it is crucial that judges, lawyers, academics but more generally all citizens, realise what the ongoing demonisation of legal professionals and dangerous legislative steps previously mentioned may lead to, that is, the progressive transformation of the UK into an electoral autocracy where authoritarian practices are hidden behind the institutional facades of representative democracy.

While multiparty elections will continue to be regularly organised, these will no longer be fair due to the systemic undermining of most democratic and rule of law minimum standards by the ruling party. 

In 2021, Professor Pech and Dr Joelle Grogan, a Senior Lecturer in UK and Public Law, will submit a REF impact case study entitled “Challenging Rule of Law Backsliding in the European Union”.

Law & politics

Where Did The Floating Charge Come From?

Los Watkins, an MDX Law Lecturer shares a piece of ongoing research into the concept of the Floating Charge and its impact on modern banking law.

The importance of origins

I’ve always found the idea of origins to be interesting, especially in Law. Why do we need a certain law? To stop something happening, or to make something happen? Was it from the Courts or from Parliament?

The Floating Charge is part of the Banking or Company Law and is an extremely important legal concept for commerce today. Almost every business you’ll see or hear about will have had to make use of it, or is doing so presently.

It seems that the idea really came about more from the Courts with Judges sorting out what was seen as a legal problem where there was no legislation to utilise. This is known as Judicial Activism. It becomes highly important when there is a legal issue to sort out and Parliament is otherwise engaged. For instance, during the past couple of years where it was almost wholly occupied with the Brexit debate!

A man with moustache and top hat sprinting with bag of money under his arm

The history of the Floating Charge

Initially, it may help readers outside this field to have a very brief and rather simplified explanation of what the Floating Charge is and how it works.

In order to give security for borrowing, it is usual for a business to allow the lender to place a charge over some assets which they might own. This will either be over all the assets or over a class of assets; only the land, or only the machinery, for example. If this is a fixed charge (essentially a mortgage over buildings, land or other fixed assets) then the business cannot deal in that asset without the lender giving their consent.

However, if a business has its stock as an asset, then this is clearly impractical, indeed, impossible to obtain that permission for every item sold every day. Therefore, there came into existence the concept of the floating charge. This means that the charge can be over stock as a whole, and, before insolvency, it allows the charged assets to be bought and sold during the normal course of business without reference to the charge-holder (the lender). In practical terms, stock can be sold and replaced freely until the charge falls due, for whatever reason, when it ‘crystallises’, or becomes a fixed charge, and the assets can no longer be sold.

References throughout the years

The conception of a charge over stock has a long pedigree, reaching back as far as ancient Rome. It was only really used in England in a vague and rare manner, and was then disapproved of. Cases such as Ryall v Rolle in 1749, followed from legal writers such as Francis Bacon (Maxims of Law, 1630) and John Perkins (Profitable Book, 1545).

In the early 19th Century, the Courts once again considered the issue with the cases of Alexander v The Duke of Wellington in 1831 and Lyde v Mann in 1833. These cases suggested that a charge over property not presently in the ownership of the borrower may be enforced as part of an Equitable view of the case. This approach was followed by other cases in 1839 and in 1842, where Langton v Horton returned to the view that this could be legal.

Becoming a recognised entity

By 1870 there were four crucial elements of what we now know as the floating charge in place:

  1. That there could be a security over the stock in trade of the borrower
  2. That the borrower had the ability to change the nature of that stock
  3. That the charge could be self-effecting (i.e. nothing more needed to be done to make the charge)
  4. That the charge did not become fixed until a certain occurrence (usually the cessation of trading).

At first, not all Judges agreed with this new idea but it slowly became more generally accepted. In 1879, Lord Jessel, the Master of the Rolls himself, first made a specific reference to the floating charge, rather than any of the other forms of words or descriptions which had been used up to that date. This is significant because it is a recognition that a new term was required for this new concept; a thing does not need a name of its own until it is a recognisable entity in its own right.

Then, in 1897, Lord MacNaughton gave the first real comprehensive and modern definition of the constitution of the floating charge as a piece of law. This was followed by Lord Justice Buckley in the 1910 case of Evans v Rival Granite Quarries.

What we now recognise as the floating charge really had arrived.

Courts vs Parliament

This, then, was the view of the Courts. Parliament made no mention of the concept until 1845 in the Companies Clauses Consolidation Act. However, this legislation only applied to a very specific type of Company and the clause was somewhat vaguely drafted.

However, by 1854, Parliament was addressing the situation of charges and how they might work in business. The current legislation now concerned with the Floating Charge is codified in the Companies Act 2006, Part 25, Schedule A1, s.859A.

In conclusion

Taking all this into account, I would say that the need for what became the floating charge was recognised by the Judiciary long before the Legislature. The run of the cases through the early 19th Century clearly show the various elements of the modern concept being brought into being by the pragmatic actions of the Courts.

I believe that in order for companies, for whole industries to grow, it was, and still is, an absolute requirement for them to have access to capital, and for that, there must have been a requirement for security on borrowing.

The use of stock in trade as security gave a flexibility and an access to growth capital that allowed business to grow fast and to utilise all the opportunities given by the Industrial Revolution. Today, that same flexibility and access to borrowing is used by businesses all over the UK who perhaps rent their premises, lease their vehicles and would otherwise have no fixed assets as security for their business loans.

It is, I suggest, not too much of an exaggeration to say that without the Floating Charge, UK business would be in a far different position today.

Law & politics

The House of Lords explained in Post-its

This week the government was defeated by the House of Lords, which rejected its Brexit bill after Theresa May failed to guarantee the rights of EU nationals currently living and working in the UK. Lecturer in EU law and Sticky Tricky Law founder Dr Joelle Grogan and her colleague Georgia Price explain what will happen next with the aid of Post-its.

House of Lords in Post-its Joelle Grogan

Post-it photo by JogiBaer2 (CC BY 2.0)

Law & politics

Article 50 explained in Post-it notes

Today (24 January 2017) the Supreme Court ruled that, in order for Brexit to begin, Parliament must vote to trigger Article 50. But what exactly is ‘Article 50’ and why is this decision so significant?

Lecturer in EU law Dr Joelle Grogan and her colleague Georgia Price, Department and Programme Administrator in the School of Law, explain with the aid of Post-its.

Article 50 Dr Joelle Grogan


Post-it photo by JogiBaer2 (CC BY 2.0).

Law & politics

It’s time to change the tune about Strasbourg

Alice Donald Middlesex UniversityMiddlesex University Senior Lecturer Dr Alice Donald, an expert on human rights, argues that rather than distancing themselves from Strasbourg, British politicians need to engage more closely with the European Court.

A debate has taken hold in the UK that portrays human rights – and especially the European Court of Human Rights in Strasbourg – as a threat to democracy. How can it be right, the critics ask, for unaccountable foreign judges to dictate to democratically-elected institutions what they must or must not do, especially when such interventions tie the hands of politicians seeking to tackle crime and terrorism? This argument is the basis for proposals of the Conservative Party to weaken the authority of the Strasbourg Court by making its judgments merely advisory in respect of the UK (rather than legally binding, as they currently are for all 47 states of the Council of Europe), and to withdraw from the European Convention on Human Rights if the Council does not agree to such unilateral reform, as it will surely not.

Fundamental objections

This characterisation of the Court as anti-democratic is built on shaky foundations. The judges in Strasbourg (one from each of the 47 states) are elected by MPs, including 18 from the UK, sitting in the Parliamentary Assembly of the Council of Europe. Moreover, the interventionism of the Court in UK affairs is frequently exaggerated. In 2014, the Court issued just four judgments against the UK. When the Court does find a violation of human rights, it almost always leaves the national authorities a wide margin of discretion as to how to put things right. The judgment on prisoner voting rights that has inflamed such controversy does not, as commonly implied, require the UK to enfranchise all prisoners, but only to remove the indiscriminate ban and replace it with a more proportionate scheme of Parliament’s choosing (and one is ready and waiting, devised by a cross-party committee of MPs).

Research conducted by my colleague Professor Philip Leach and I – recently debated at a conference co-organised by Middlesex University in the Polish Senate – proposes more fundamental objections to the democratic critique of the Court and the wider Convention system. We argue that many of the Court’s critics have lost sight of the origins of the Convention as a system for the collective guarantee of human rights, in which each state is exposed to the same possibility of scrutiny in return for the shared benefits of regional peace and stability and the effective protection of human rights across Europe.

European Court of Human Rights
Photo by James Russell (Creative Commons 2.0)

While attacks on the Court are not peculiar to the UK, in no other European state have they become part of mainstream political discourse. Withdrawal from the Convention is a step that no democracy has ever taken. Even talk of withdrawal risks spreading anti-Strasbourg scepticism in states with much worse human rights records than the UK; indeed, the contagion has already begun.

Further, we argue that membership of the Convention enhances, rather than undermines, the democratic credentials of elected institutions at the national level. Even the strongest democracies make mistakes. The ability of individuals to apply to the European Court is a vital corrective to majoritarian decisions that may, wittingly or unwittingly, neglect or abuse the interests of individuals or minorities. The impact of the Court’s judgments for the people of the UK is felt far beyond the few contentious cases that monopolise the headlines.

Common standards

Another benefit of the supranational Court is its ability to develop a normative system of common standards across multiple jurisdictions; for example, judgments of the Court have helped to ensure the steady advance of the rights of lesbian, gay, bisexual and transgender people, not only in the UK but across Europe. The Court is also uniquely well-placed to tackle violations arising from cross-border issues such as human trafficking. As a collective system, the Convention system furthers the goal of promoting a rights-respecting culture across the continent, indeed globally, in a way that even well-functioning and motivated democracies cannot achieve by acting alone.

It is paradoxical that the UK, which has among the strongest compliance rates of all Convention members, is the source of such obloquy towards the Court.

Accordingly, we argue that if there is a ‘democratic deficit’ within the Convention system, it lies not with the Court but with the paucity of structures within national parliaments to engage with the Council of Europe and conduct oversight of the implementation of human rights norms. As our research has shown, few parliaments in Europe undertake systematic scrutiny of legislation to ensure it complies with the Convention or follow up judgments of the Court to ensure that executive bodies are responding adequately. The result is the persistence of structural or systemic violations giving rise to thousands of applications before the Court and, at the latest count, some 11,000 non-implemented judgments.

The Joint Committee on Human Rights in the UK Parliament is an exception to this pattern and is widely regarded as exemplary. It is, indeed, paradoxical that the UK, which has among the strongest compliance rates of all Convention members, is the source of such obloquy towards the Court.

False dichotomy

There is now an international consensus behind the idea that the protection of human rights is a shared responsibility of all branches of the state: the executive, the judiciary and parliament. Council of Europe governments recognised as much in the recent Brussels Declaration. Initiatives to embed parliamentary consideration of judgments (and promotion of Convention standards) are essential to reducing the backlog of cases in Strasbourg. Greater parliamentary engagement may also help to address the perception that changes to law or policy made in response to judgments of the European Court lack democratic legitimacy. Not only that, but such engagement may also in the longer term help to pre-empt opportunistic attacks on the Convention system by obliging parliamentarians to engage with reasoned, justificatory arguments about the meaning and scope of rights and the necessity and proportionality of restrictions upon them.

This would be infinitely preferable to the populist tone of much debate in the UK, which persists in framing a false dichotomy between human rights and democracy.