Boris, Bristol, and the Rule of Law

February 3, 2022

Author Articles

By David McIlroy

The rule of law was much in the news in the UK in January 2022. The British prime minister was accused of attending, organising and approving parties in Number 10 Downing Street, his official residence, at a time when government restrictions prevented more than 2 people gathering. At the same time, a jury acquitted four people, who tore down the statue of the slave-trader Edward Colston in Bristol as part of a Black Lives Matter protest, of causing criminal damage. 

The rule of law means that the same rules apply to everyone. By encouraging and participating in social gatherings, the British prime minister at the very least gave the impression that he did not think the rules applied to him. His behaviour stands in stark contrast to that of the Queen, sat alone at the funeral of her husband of more than 70 years, Prince Philip.

The rule of law also means that the rules have a certain quality, that the rules are made for the good of the people. The common law polices this requirement through its insistence that serious crimes may or must be tried by a jury. For more than 350 years, juries in England have had the right to refuse to convict an accused if they consider it would be seriously unjust to do so. This right was first established in Bushel’s Case in 1670. Edward Bushel was one of a jury which had found William Penn (the future founder of Pennsylvania) and William Mead not guilty of a breach of the Conventicle Act (which prohibited religious assemblies of more than 5 people). The judge hearing the case had imprisoned the jury for failing to return the correct verdict, but Bushel successfully petitioned the Court of Common Pleas for their release.

So, whilst the acquittal of the “Colston Four” was criticised by some commentators as suggesting that demonstrators can take the law into their own hands, it is justifiable as signifying that Edward Colston no longer deserves to be publicly venerated. Its symbolic removal signifying a rejection of Britain’s slave trading past is an affirmation that the common law failed for so long as the rule of law did not apply to black people. 

I’ve explored these different ways of thinking about the rule of law in my book, The End of Law: How Law’s Claims relate to Law’s Aims (2019). In it, I argue that rulers don’t have to govern according to the rule of law, and when they do, they often do so only for the benefit of certain groups and not others. The rule of law doesn’t guarantee justice by itself but it does exclude certain forms of injustice. It is precious and the price of its continuance is constant vigilance.

David McIlroy, Barrister, Forum Chambers and Distinguished Fellow and Visiting Professor, University of Notre Dame (USA) in England.

David’s book, The End of Law: How Law’s Claims Relate to Law’s Aims is available on our website, read Chapter 1 free on Elgaronline

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