Rule of Law

Tuesday 26th November 2024 Lords Chamber

Motion to Take Note

16:13

Moved by

[Baroness Smith of Cluny]

That this House takes note of the importance of the rule of law.

[The Advocate-General for Scotland (Baroness Smith of Cluny) (Lab) (Maiden Speech)]

My Lords, it is a privilege to open this debate as the Advocate-General for Scotland. As some may know, this is also my maiden speech, so I hope the House will indulge me in saying a few words of a more personal nature before moving on to the substance of the debate.

I start with a thank you for the welcome I have received from all sides of the House and from Black Rod, her office, the catering staff and many other colleagues who work so hard to make this place run smoothly. The doorkeepers get special mention. I am reliably informed that I am going to get lost in the corridors here for years to come, so their thank you is prospective as well as retrospective—a wee joke there for the lawyers.

I am here primarily as a law officer, and it is with great pride that I am. The role of Advocate-General is vital to the UK Government, delivering for Scotland and the devolution settlement in which I passionately believe. I will make sure that Scotland’s voice is heard and properly taken account of in both policy formation and legislation. It is by doing that that we can thrive as individual nations as well as strengthening the union. It has also been my honour to join this House, and I hope to make a meaningful contribution here as well.

The role of Advocate-General and the associated responsibilities in this House have traditionally attracted weekly attendance in London from my predecessors. Living in Scotland with just my daughter and me at home, I am pleased and proud that this Labour Government immediately and enthusiastically supported my request to undertake the role primarily from Edinburgh. In doing so, we have signalled clearly that this is a family-friendly and modern Government, leading by example. There are other advantages. I have long thought that the Advocate-General seemed a remote figure on the Scottish legal landscape and it is my view that if you are representing Scotland’s interests, it is vital to be rooted in that nation and aware of what those living there want and need.

I have gleaned that the House is prepared to indulge new Members in paying tribute in their maiden speech to those in their personal life who have supported them, so I wish to mention two titanic women. The first is my mother, who persuaded me that there was more than one way to be a parliamentarian, quietly arguing for the effectiveness of this House, despite my initial mistaken view that it was only the other place that mattered. Her insatiable intellectual curiosity continues to be an inspiration to me. The second is my daughter, the bold Ella. Being the child of a parliamentarian is not always easy—I know this—but Ella’s experience is particularly acute. When your only flatmate leaves for a trip to London and you are 10 years old, it leaves a big space. She is finding it very hard but, despite this, I have lost count of the number of times she has told me she is proud of me. I want to pay testimony to her sacrifice and that of the children and families of all parliamentarians who lose out to allow us to serve. I hope that this lesson in the value of public service stays with her for life, as it did for me.

Many in this House have very kindly welcomed me in the context of knowing my parents. If the Times diary column is to be believed, I and my mother are the first mother and daughter Peers. If nothing else, we are destined to live on in pub quizes for ever. I am very proud of both my parents and it is a privilege to bask in their reflected glory, but only for a while. I hope that this House will find space here for me to be me, not just my parents’ daughter. I believe I am here because of a hard-earned legal career, which included taking Silk, sitting as a judge in various fora and earning the respect of my profession over many years. I will contribute to this House as a product of that, with my own thoughts and beliefs guiding me. So, if I may gently encourage Members to call me Catherine, not Elizabeth—nor indeed Sarah—I can seek to forge my own way here and in time, I hope, earn your Lordships’ respect as an individual.

I also wish to acknowledge my second supporter, the noble Baroness, Lady Kennedy. The law is so much more than the black letter of it. It is a tool with which to change and improve lives, and indeed whole nations, as we will discuss today. Using the law as a campaigning tool for the greater good is something the noble Baroness, Lady Kennedy, is a past master at.

I turn to the rule of law. The rule of law is sacrosanct; it is the bedrock on which democracy sits. As the Attorney-General explained in this Chamber, the rule of law will serve as this Government’s lodestar. I will begin by mentioning the principal aspects of this Government’s position, looking at international law, human rights and the constitutional role of Parliament and the courts, before concluding by highlighting the importance of the rule of law in the context of devolution in Scotland.

This Government are clear that the rule of law encompasses international law. This Government will, without question, honour our obligations under international law and promote the rule of law internationally. The Prime Minister has already taken action through the publication of the new Ministerial Code, which reinserts express reference to the duty of Ministers to comply with international law and treaty obligations. Compliance with international law is not only the right thing to do morally; it also upholds our international reputation. That in turn enhances our ability to work with partners to address global challenges, whether they are climate change, artificial intelligence, migration or economic growth. We have made plain our commitment to our cornerstone international institutions, which the UK will once again champion.

These institutions are fundamental to ensuring justice for people with no other recourse. I have seen first hand the immense challenges to the rule of law in other countries through the work I have done in the NGO and charity sectors. I have been visiting Ukraine since 2004, when I first met Martin Harris, our ambassador there, working on projects promoting the rule of law. Both the Attorney-General and I have been to Ukraine in the last year, speaking to lawyers about how the UK can seek to support them, including through our commitment to the rule of law.

This Government are equally clear that the protection of human rights is an essential element of the rule of law. We are fully committed to complying with our obligations under international human rights law. This includes our unequivocal commitment to the European Convention on Human Rights—to which the UK was the first signatory, a fact we should be proud of—and to the treaties we have ratified in the United Nations. Domestically, the Human Rights Act is an important part of our constitution and fundamental to the rights protection of everyone in the UK. It is thanks to our robust domestic human rights framework that, out of 46 Council of Europe member states, the UK has the lowest per capita rate of applications to the European Court of Human Rights.

I will now acknowledge the importance of respecting the constitutional balance between Parliament, the Executive and the courts. Parliamentary sovereignty is a fundamental feature of our constitution. Parliament must have a proper opportunity to scrutinise the actions of the Government, and a proper balance between primary and secondary legislation is vital. In a modern, regulated society, secondary legislation is crucial to efficient government, and it absolutely has its place. However, the UK’s withdrawal from the EU and the Covid pandemic resulted in concentrating immense power in the hands of the Executive. As the Delegated Powers and Regulatory Reform Committee pointed out, this represented an acceleration and intensification of an existing trend.

This raises real questions about how we are governed. As a Government, we will seize the opportunity to reset our approach, respecting the constitutional role of Parliament. We, the law officers, will ensure that the Government’s legislation is accessible, clear and predictable and reflects the correct balance between primary and secondary legislation. To this end, the Attorney-General has already issued new guidance on the appropriate use of secondary legislation in government Bills.

In the courts, our judges are rightly respected around the world for their expertise, impartiality and independence. Judicial independence is a prerequisite of the rule of law. This Government and our Lord Chancellor will robustly and swiftly defend any attacks on this from any quarter.

I will conclude with some comments on the rule of law in the context of Scottish devolution. I believe that the rule of law underpins the success of the settlement through the promotion of effective collaboration between the UK and Scottish Governments, and the mechanisms for clarification by the courts where necessary. As a Parliament, I believe we should be incredibly proud of an excellent piece of drafting in the Scotland Act, which has stood the test of its first 25 years. Deliberation in this Chamber was fundamental to that.

Since the Scotland Act’s debate and passing in 1998, we have seen political change that many would not have predicted then: a majority Government in Scotland—indeed, a nationalist majority Government; a referendum on independence; 17 years of different political parties being in power in the two Parliaments; and not to mention the UK’s withdrawal from the EU. During this time, the Scotland Act has governed the relationship between the UK and Scottish Governments, such that these seismic constitutional events have been well managed and, in the main, handled with respect. Indeed, it is important to acknowledge the collaboration that regularly occurs between UK and Scottish Governments, underpinned by a common respect for the rule of law.

My department works constructively and effectively with counterparts in the Scottish Government on numerous issues on a daily basis, achieving consensus under the radar and away from the headlines. By way of example, the new devolved pension age disability payment in Scotland will sit properly in the mixed reserved and devolved benefits regime because of technical changes delivered through a Scotland Act order made by the UK Government in October. Scotland’s two Governments working together to put in place a coherent legislative framework, in accordance with the rule of law, for the benefit of the people—this is what a resetting of the relationship looks like in practice.

I particularly look forward to working together effectively with the Lord Advocate and Solicitor-General for Scotland. Indeed, in the vein of collaboration, may I take this opportunity to congratulate the noble and learned Lord, Lord Keen, and the noble Lord, Lord Wolfson, on their appointments as shadow Advocate-General for Scotland and shadow Attorney-General? I look forward to working constructively with them as well.

The rule of law is also fundamental to resolving questions regarding the construction of the devolution settlement. I have heard it suggested that the litigation we have seen in this area is indicative of a failure in the devolution architecture; indeed, some describe it as broken. I strongly rebut that suggestion. Litigation is, in my view, further evidence of the devolution settlement working well. The drafters of the Scotland Act had the foresight to include powers for law officers of the UK and Scottish Governments to refer questions regarding the competence of the devolved institutions for judicial determination. As acknowledged by the Supreme Court, the actual practice of the UK and Scottish law officers has borne out that the reference procedures have been exercised in the public interest. Far from being symptomatic of a system that is broken, judgments of the court have helpfully clarified the Act; and, looking at it another way, one might think it odd if those mechanisms had never been used in 25 years. For example, the Supreme Court has confirmed that the Sewel convention is a political convention, not a justiciable legal rule. This Government’s commitment to strengthening the Sewel convention will be taken forward consistent with that position.

In respect of Acts of the UK Parliament, the Scottish Parliament has granted consent in respect of over 200 Acts. The number of occasions when this Parliament has legislated without consent that has been sought is fewer than a dozen, and the majority of those occasions concerned the withdrawal from the EU, a fraught and complex legislative event that might well be thought to be very far out of the ordinary. In terms of Acts of the Scottish Parliament, 368 have been enacted since devolution. The UK Government law officers have referred to the Supreme Court the question of whether a Scottish Parliament Bill is within competence only three times.

This picture I have set out demonstrates that the Act is operating as it ought to in a mature democracy—working well day to day but containing provision for the limits of the settlement to be tested, and those provisions being used appropriately from time to time.

Lord Bingham described the rule of law as one of the greatest unifying factors—perhaps the greatest—and as an ideal worth striving for, in the interests of good government and peace, at home and in the world at large. This most elegant formulation cogently demonstrates why the rule of law will serve as this Government’s lodestar, there for all to see.

I look forward to hearing noble Lords’ insightful contributions and I beg to move.

16:31

[Lord Wolfson of Tredegar (Con)]

My Lords, it is a privilege and a pleasure to begin by welcoming the noble and learned Baroness, Lady Smith of Cluny, the Advocate-General, to her place, and to congratulate her on a very fine maiden speech. Given her illustrious background, both personal and professional, we expected a great deal from her—but she met and indeed exceeded those expectations.

As to her personal background, it must have been a particular pleasure for the Advocate-General to be introduced into this House by her mother—or should I say kinswoman?—the noble Baroness, Lady Smith of Gilmorehill. It is an underappreciated virtue of the new Labour form of the hereditary peerage that both generations can sit here simultaneously.

However, in light of her professional background, the truth is that the Advocate-General is here very much on her own merits. I did not know her, as we practise in different areas of the law and indeed in different jurisdictions, but I can confirm to the House that she has a most impressive CV and—other members of this Government should take note—one which is 100% accurate and required no embellishment. I therefore look forward to her future contributions in this House, notwithstanding our political differences.

When it comes to the rule of law, one is tempted to say that there are no such differences and we are all on the same side. I do not expect anyone in this debate—given the quality of the list, I too look forward to many insightful speeches—to speak against the rule of law. None of us wants to live in a society governed by despotic whim or by mob rule.

In opening for the Opposition Benches, I could give a speech which would be the legal equivalent of motherhood and apple pie. It is an easy speech to give. It would trace the rule of law not only to the work of Dicey in the 19th century and then to the work of Locke in the 17th but as far back as the writings of Aristotle, who wrote that

“it is more proper that law should govern than any one of the citizens”.

It would explain that, far from being some abstract constitutional principle—because that is what the rule of law is; it is not a law but a foundational constitutional principle—the rule of law underpins not only our politics and civil society but our commercial endeavours too. If the huge glass panels of the City’s skyscrapers are held together by invisible building materials, the financial markets and stock and other exchanges are held together by the rule of law.

In my own practice as a commercial lawyer— I declare the obvious interest—the rule of law is one of the reasons why litigants and commercial parties from all over the world choose to have their disputes determined in London. They come here not only because, as the Advocate-General said, our judges are independent and of unimpeachable integrity—though they are. They come here not only because our legal profession is of the highest calibre—though it is. They come here not only because English law, and perhaps also Scots law, has kept pace with the modern world—though it has, through the Law Commission and through legislation passed in this place. Ultimately, they come here to our courts because they know that the UK is a country governed by the rule of law.

What is the rule of law? At its heart, the rule of law means that the state is governed by laws and that everyone in the state, and the state itself, is subject to those laws. The core features of the rule of law are not now in doubt. They include that everybody is subject to the same laws; wealth, power, status or privilege provide no special protection. Governments and public officials are subject to the law. They must exercise their powers lawfully. The law must be accessible and clear. Disputes should be determined by independent courts and tribunals. A vibrant and independent legal profession is necessary to promote liberty under the rule of law. Without the rule of law, underpinned by an independent judiciary and the courts, much else would fail to prosper. It is one of the foundations that supports economic activity, wider prosperity and a settled society. In short, the rule of law, independent courts and an independent judiciary are not optional extras or simply a service, but one of the foundations on which everything else is built.

I want to make three points about the ambit of the rule of law. The first is as to what is encompassed by it. We have heard Lord Bingham’s name mentioned already, and I suspect that we will hear it many more times. Of course, he wrote a book on the subject, The Rule of Law, published in 2010. If you entitle your book, “The Rule of Law”, people will think that is what it is: the rule of law is what he says it is. I read with interest the recent lecture given by the noble and learned Lord, the Attorney-General, at the Bingham Centre, which is named after him. However, Lord Bingham’s view of the rule of law is a very expansive or “thick” view. It is not shared by many others. To give just one example, his view is very different from that of Sir John Laws, the Government’s senior barrister or “Treasury devil” for eight years and then a Lord Justice of Appeal, in his book, somewhat less attractively titled The Constitutional Balance.

The problem with Lord Bingham’s expansive view of the rule of law, as Professor Gardner wrote in a trenchant review in the London Review of Books, is that it includes within the rule of law

“the full range of human rights: not just those ensuring due process of law for all, but also those concerned with … life, privacy, association, property and assembly”.

On that approach, it is very hard to leave logical space for regimes that respect the rule of law but are otherwise notably illiberal; for example, they forbid gay relationships or organised religion. I would not want to live in a country like that, but is it right that such a state would not have the rule of law? Where you end up, as Professor Gardner put it, is the conceit that

“no country has the rule of law unless it would be morally suitable to join the Council of Europe”.

We do the rule of law a disservice if we try to cram within it any and every social good. Not every social good is a human right, and not all human rights are part of the rule of law. The rule of law with its traditional limits is important enough in itself. It does not need to encompass or express every conceivable legal or social good.

I now turn to international law, because the rule of law applies in the international arena too. International law is law and, just as we should obey domestic law, we as a state should abide by international law. That does not mean we should fetishise international law. It might sometimes be not very good law and might often require updating for a different world, but all that can be true of domestic law as well. Yet it is remarkable how those who, quite rightly, feel able to criticise domestic law, although they will continue to obey it, suddenly regard any hint of a suggestion that this or that point of international law might not be totally perfect as an immediate challenge to the rule of law and an affront to the international order.

Criticising a law is not a challenge to the rule of law. That is true of domestic law and it is also true of international law, especially when we are told that what we all believed to be customary international law has now suddenly changed to whatever certain lawyers close to this Government would like it to be—a process we might call the shifting sands of international law. Nor is it a challenge to the rule of law to make submissions to an international court, urging it not to do something it was minded to do. The previous Government informed the ICC that they would make submissions to the effect that it had no jurisdiction to issue the arrest warrants against Prime Minister Netanyahu and former Defence Minister Gallant, with an already-dead Hamas leader thrown in, in some grotesque form of moral equivalence.

But almost the first act of this Government was to announce that they would not make any submissions to the ICC. Why? The explanation from the Prime Minister’s spokesman was that

“this is a matter for the court to decide on”,

going on to say:

“The government feels very strongly about the rule of law internationally and domestically”.


As a reason for not making submissions to a court, that is risible. To paraphrase Mrs Thatcher, advocates advocate and judges decide. You do not offend a court, or the rule of law, by making submissions, especially if the court has invited those submissions. Perhaps the noble and learned Lord the Attorney-General will explain whether he thinks Germany, which did make those submissions to the ICC, thereby demonstrated that it did not feel very strongly about the rule of law?

Just as we should be careful not to expand the rule of law to include any and every social good, we should also not abuse the concept of the rule of law by dressing up what are essentially political decisions as legal issues. Perhaps if we had made submissions, the ICC would not have reached the legally doubtful—at its highest, I suggest—decision that it reached. But it issued those arrest warrants, and another element of the rule of law is that people need to know what the law is and what the rules are. I did not get a clear answer from the Minister when I asked her just after Questions whether Mr Netanyahu’s immunity, as the serving Prime Minister of a state that is not a party to the ICC, precludes his arrest and handover to the ICC.

That immunity—this is critical—is specifically preserved in our domestic law in a UK statute: the International Criminal Court Act 2001. The Minister told me earlier that there is a conflict between that statute and customary international law, and that it is up to the court to sort it out. On the basis, as I was told this afternoon, that the Government’s position is that this entire question comes down to a “conflict” between an Act of Parliament and customary international law, will the noble and learned Lord the Attorney-General confirm that, in this jurisdiction, a domestic statute always prevails over unincorporated customary international law? If that is right, will he therefore agree that Mr Netanyahu retains his immunity? I appreciate that the final decision on this question will be a matter for the High Court, but the Government must have a position on this issue, and I look forward to the Attorney- General telling us, finally, what that position is.

The third and last feature of the rule of law that I want to mention is equality before the law. This is a fundamental principle. All people must be treated equally and in accordance with the law. We all know the phrase: justice must not only be done but be seen to be done. That applies not only in court but, I suggest, across the entire justice system.

We are rightly proud that we live in a country where we are policed by consent—where our police are not routinely armed. But to maintain public confidence, which is critical, we must ensure that the police not only do their work without fear or favour—as I am sure they do—but are perceived to do so.

I have spoken before about my astonishment that a sign calling for jihad on the streets of London was regarded by the police as not requiring any further investigation. Last week’s Jewish Chronicle reported that a sermon that called for the destruction of Jewish homes and was delivered two weeks after the 7 October massacre was originally not deemed by the Metropolitan Police to meet the criminal threshold, once the context— I emphasise “the context”—was taken into account. After something of an uproar, the police have said that they are now reviewing their earlier decision.

I am well aware of the difficult job that the police have. We on this side of the House—and, I am sure, all of us on all sides—support the police in the work they do. But to maintain public confidence, we need to make sure that justice is done and seen to be done. That applies from the moment when there is a knock on the door by a police officer, right up to the handing down of a sentence by a judge.

I know that the noble and learned Baroness the Advocate-General and the noble and learned Lord the Attorney-General might not agree with everything I have said, but I will conclude with a point that I am sure will command universal support: the rule of law is too important to be left to party politics. Some on the right deride the left for confusing the rule of law with the rule of lawyers. Sometimes, that is a fair criticism. The rule of law should not be a fig leaf to cover up contested policy decisions. Using law as a way of avoiding political debate risks undermining the rule of law. Some on the left—as we heard from the Lord Chancellor and the noble and learned Lord the Attorney-General at Labour’s party conference—like to say that

“the rule of law is back”.

Perhaps this debate is part of that supposed narrative, but we in this House know that their immediate predecessors, Alex Chalk and Victoria Prentis, also firmly believed in, and unflinchingly upheld, the rule of law. This ought not to be a party-political point.

The truth is that we all need the rule of law, and we all want to live in a society governed by the rule of law. It is too important to become a political football. We must all defend it, or we will find that we have lost one of the critical—if often invisible—elements that holds our entire society together.

16:48

[Lord Thomas of Gresford (LD)]

My Lords, it was a great pleasure to hear the thoughtful speech of the noble and learned Baroness, Lady Smith of Cluny, who so much adds to the lustre of her family. She referred to her parents; the moment I walked out of court into the Old Bailey on an afternoon in May 1994 is fixed and etched in my memory. On a newspaper board opposite the entrance, I saw the sad headlines relating to her father and I was shocked and dismayed, even though I was not a member of his party. I wish her every success in this Chamber and in her new position, which her own talents and hard work have so richly deserved.

The assault on the rule of law started rather badly in September 2019, when the Government of the day’s unlawful attempt to prorogue Parliament was halted by the Supreme Court. But it was the bold attempt of Brandon Lewis, Secretary of State for Northern Ireland, in September 2020, to legislate in breach of international obligations that brought the rule of law into even sharper focus. He told the House of Commons that the internal market Bill broke

“international law in a very specific and limited way”.—[Official Report, Commons, 8/9/20; col. 509.]

The Constitution Committee concluded in its 17th report of that Session:

“Adherence to the rule of law is not negotiable … A government that brandishes the threat of breaching its international obligations, even in ‘specific and limited’ circumstances, is one that undermines the rule of law”.


This debacle was followed by the Northern Ireland Protocol Bill, which permitted the breach, by secondary legislation, of the United Kingdom’s international obligations as agreed in the Northern Ireland protocol. The Constitution Committee found that these were two conscious attempts to breach the United Kingdom’s international obligations, contravening Lord Bingham’s eighth principle that

“the rule of law requires compliance by the state with its obligations in international law”.

The Cabinet Office set out HMG’s legal position in 2020. The then Government argued that treaty obligations become binding only to the extent that they are enshrined as a matter of domestic law. It was claimed that there was nothing unlawful in Parliament passing legislation that was in breach of the United Kingdom’s obligations. The Constitution Committee rejected that argument in its ninth report of 2022-23, to which I was a party, stating:

“Whatever Parliament decides to do does not affect whether the state is in breach of international law … A treaty, once agreed, binds the state … the responsibility of the Government to honour the state’s international obligations requires it to refrain from inviting Parliament to legislate knowingly contrary to the United Kingdom’s international obligations”.


Parliamentary sovereignty is the foundation of our domestic law, but it is not the overarching, unbridled principle that is commonly claimed by political parties when they are in power. It is subject to constitutional principles: in particular, to the principle that a Government should not legislate to break international law. Indeed, the Ministerial Code is explicit in paragraph 1.6, which refers to

“the overarching duty on ministers to comply with the law, including international law and treaty obligations”.

The Rwanda Bill was another attempt to violate our international obligations, specifically the refugee conventions and the European Convention on Human Rights. The proposal was to bar access by asylum seekers to the courts of this country, contrary to Lord Bingham’s fifth principle of the rule of law and Article 6(1) of the European Convention on Human Rights.

The granting of an interim order by the European Court of Human Rights, which in effect prevented the removal of asylum seekers to Rwanda, had the originalists leaping snarling from their den. Originalists are those who deny that the European convention is a living instrument. The majority view is that the convention should develop through case law: modern remedies for modern problems. Society changes. Attitudes towards the status of women or towards gay rights have changed in the seven decades that have followed the signing of the convention. In the area with which I have a particular concern, military justice, the case of Findlay in the European Court set in train changes to the scope and procedures of military law in a way that the 1950 founders could never have foreseen.

As for the European Court’s interim order in the Rwanda case, it was in the 1970s that rules were made by the court, specifically rule 34, which required member states not to hinder the rights of an individual to make applications for relief to the court. You may well think that whisking Africans off on a one-way ticket to Rwanda would be something of a hindrance to such an application, and indeed a judge of the court, faced with an application by an asylum seeker, made an interim order under rule 39 to delay the flight. In due course, the UK Supreme Court ruled the proposed dispatch of asylum seekers to Rwanda to be unlawful and further European court proceedings were unnecessary.

“These European court rules were made in the ‘70s”—so wail the originalists. The scope of the European Convention on Human Rights, they say, should be confined to the powers explicitly agreed in 1950. “Do not look beyond the 1950 text, as illustrated by the preparatory papers of the time”. This argument was expounded by Professor Ekins of Oxford University in the unlikely forum of the Atkin Lecture in the Reform Club, of all places, and it has been supported by the noble Lord, Lord Wolfson of Tredegar.

Originalism is a right-wing doctrine developed in the past 40 or 50 years in the United States of America. It has found its way into the United States Supreme Court. It will not surprise noble Lords that four of the six Supreme Court justices who granted full presidential immunity to Donald Trump recently are self-confessed originalists. They believe that the US constitution should be construed as originally drafted and understood by the Founders in 1789. But somehow I doubt that Alexander Hamilton, Benjamin Franklin, Thomas Jefferson and the rest of them would have been natural Trumpsters in their aspirations.

This odd, fossilising theory of interpretation has crept across the Atlantic to this country, probably through the secret funders of the Tufton Street think tanks. That may be the reason why the recent Conservative manifesto referred to the European court as a “foreign court”—a phrase repeatedly on the lips of Rishi Sunak during the recent campaign. It is a sad withdrawal from the ideals promoted, paradoxically in 1950, by the Conservative Sir David Maxwell Fyfe, later Lord Chancellor and the Earl of Kilmuir, and developed by British judges of the court.

My final point is that, if parliamentary sovereignty and executive government are to be subject to the rule of law, an independent judiciary is essential. Your Lordships may not fully realise the necessity of an impartial court, but I have had the experience of appearing in a foreign court in an action brought against my client by the premier of the country in question. My apprehension, whether right or wrong, that no submission I made could possibly succeed before that court induced feelings of utter frustration. I was wasting my time. Subsequently, success in the Privy Council in a linked case on behalf of the same client was followed within three months by the withdrawal of the country concerned from the jurisdiction of the Judicial Committee for ever. That Government said there was no connection between the two things.

I look forward eagerly to a commitment by this Government that the United Kingdom will observe the rule of law in all circumstances, that the independence of the judiciary will be properly defended, that Parliament will no more be invited to break international laws and treaty obligations—even in “a very specific and limited way”—and that they will maintain our good name as a country abiding by the rule of law in an increasingly lawless world.

17:00

[Lord Etherton (CB)]

I too welcome the noble and learned Baroness, Lady Smith of Cluny, to her ministerial position and congratulate her on an excellent speech.

What is the importance of the rule of law? In brief, it is a national standard of minimum rights for a free and democratic United Kingdom and an international standard for democracies across the world. On both these points, I agree with much of what the noble Lord, Lord Wolfson of Tredegar, said. Lord Bingham specified in his book, already referred to in this debate, eight core ingredients of the rule of law. I shall not weary the House by setting them out, but they must be borne in mind as each is specific and limited. It is sufficient for me to say that he summarised the core principle as:

“all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly”

made, generally taking effect in the future

“and publicly administered in the courts”.

I will mention a few of the ingredients of the rule of law in more detail. First, the rule of law requires access to an adjudication process that will resolve disputes and enable rights to be enforced. Traditionally, that adjudication has taken place in physical buildings and with the parties physically present or represented before a judge or panel of judges. Nowadays, such processes are increasingly conducted remotely by videolink, telephone or online procedural processes.

There has sometimes been a tendency to see litigants as customers, paying court fees in return for service, but the provision of this facility is the responsibility of the state as part of the rule of law. People are entitled to the resolution of their disputes not because they are customers but because that is the right of a citizen living in a state governed by the rule of law. It is not impermissible for the state to charge a fee; it can do so, but only if the fee is reasonable and affordable.

The first question arising from this ingredient of the rule of law is whether this country satisfies that requirement. Bearing in mind the backlog of cases in family, civil and criminal law, the shortage of judges and, in some cases in criminal law, the absence of sufficient counsel to deal with the matters, I question whether the United Kingdom is in compliance with that aspect of the rule of law.

Next, I turn to the question of holding the Government, public bodies and officials to account for abuse of the law and of their powers. The first thing to acknowledge is that if laws themselves comply with the eight factors set out by Lord Bingham, that will in practice have some constraining influence on official oppression and abuse. If laws are generally applicable without exclusion for officials and are known and clear, the scope for corruption or other abuse of power is reduced. It is equally plain, however, that for there to be an effective constraint on official abuse and oppression, citizens must have access to dispute resolution procedures administered by an independent judiciary in which such abuses can be challenged.

As the noble Lord, Lord Wolfson, mentioned, this reflects the fact that the concept of the rule of law antedates by many centuries our present concepts of protection of human rights. Indeed Aristotle wrote about this in the fourth century BCE, as the noble Lord said. Again, as of the previous questions I posed, I think one must question whether the current state of the resources for the courts for the adjudication of these claims is adequate to satisfy our obligations as a country under the rule of law.

Before I turn to the next item, which should be the question of human rights, it is important that I address the rule of law as an international standard. In a report to the Security Council of the United Nations in August 2004, the then UN Secretary-General said:

“The ‘rule of law’ is a concept at the very heart of the Organization’s mission”.


In September 2015, the UN agreed a set of sustainable development goals for 2015 to 2030 that came into force in January 2016. Goal 16.3 enshrines a commitment by all UN members to:

“Promote the rule of law at the national and international levels and ensure equal access to justice for all”.


In March 2016, the Council of Europe’s Commission for Democracy through Law, known as the Venice Commission, published a rule that said:

“The Rule of Law is a concept of universal validity”.


The setting of UN SDG goal 16.3 to

“Promote the rule of law at the national and international levels”


underlines that the concept of the rule of law must be appropriate as an international standard capable of applying to different countries with their varied histories, cultures, constitutions and political engagements. The concept of the rule of law is rightly applied as an international kitemark of minimum standards. It is therefore used both to criticise and to encourage improvement in failing regimes.

There is not any one court which adjudicates on human rights across the world, however. Many courts adjudicate in relation to different concepts of human rights in different countries. That is why although there is, inevitably, some overlap between the rule of law and some human rights, such as the right to a fair trial before an independent tribunal according to known laws, which provide the measure of constraint against official corruption, that overlap is quite different in principle from the notion that the rule of law requires the promotion or protection of human rights generally. I agree with noble Lord, Lord Wolfson, that this thin edge—as it is called—or thin version of the rule of law is consistent with the checklist appropriate for an international concept of the rule of law and is also supported by the position of the Venice Commission in a report in March 2016.

There is here an area in which the United Kingdom, with its long history of the rule of law and human rights, can take a lead in bringing about a consensus as to the most essential human rights in a democracy, perhaps centred on the Universal Declaration of Human Rights. At the same time, however, as I have said, the United Kingdom itself must improve its adherence to the rule of law by increasing the available facilities and resources for resolving disputes between citizens and between citizens and public bodies. I hope that the Attorney-General’s welcome initiative on the rule of law addresses these important points.

17:10

[Lord Faulks (Non-Afl)]

My Lords, I congratulate the noble and learned Baroness, Lady Smith, on her excellent maiden speech. I also greatly look forward to the maiden speech of the noble Baroness, Lady Laing.

The noble and learned Baroness, Lady Smith, rightly identified many of the core ingredients of the rule of law. However, I regret to say that I have profound reservations about the use of the rule of law in political discourse. The expression is too often deployed as some sort of trump card in what are in reality highly contested circumstances.

In fairness, the rule of law has always been hard to pin down. As a Minister, I went to China. My visit coincided with Rule of Law Week in Beijing. I was told by university professors about the reflection of the rule of law in the Chinese constitution, including the independence of the judiciary. The problem, however, was that, superimposed above rule of law principles, there was always the Communist Party. When I told the intelligent and respectful audience that in this country the Government regularly lost cases, and that we regarded this as an important part of the rule of law, the response was one of amazement, accompanied by nervous giggles.

Closer to home, I remember receiving much thoughtful advice from civil servants when the Ministry of Justice was contemplating some new policy initiative. Not much of it was concerned with the merits of the particular policy, or indeed the lack of them. It was much more was focused on the potential risk of judicial review and the possibility—it was usually couched in terms to reflect uncertainty—of a violation of the Human Rights Act, or of at least of one interpretation of the Strasbourg jurisprudence in the relevant area.

In this context, the recent publication of the Attorney-General’s new legal risk guidelines concerns me. The new emphasis on international law, despite its frequent vagueness and notwithstanding our dualist system, runs the risk of a Government being hemmed in by rather subjective interpretations of what does or does not constitute a so-called “respectable argument”.

I could give many examples of rule of law arguments that have meant that a Government democratically elected, of whatever colour, have found it extremely difficult to govern. I think of the problems the Blair Government had in trying to combat the threat of terrorism and finding that their policies were unlawful. The Conservative Government of course ran into all sorts of difficulties when trying to combat illegal migration. This culminated in the Supreme Court holding that the Rwanda scheme was unlawful. There were legitimate grounds for opposing the policy, but they were, in reality, far more political than legal.

A low point for me was when, in the dying days of the last Government, your Lordships’ House was considering legislation to impose regulation on the internet to combat the anti-competitive and monopolistic practices of big tech. Cross-party amendments were put down, but we were met with the argument—no doubt advanced by government lawyers—that undermining Google’s position would be contrary to Google’s human rights and thus, in effect, contrary to the rule of law.

Decisions in the Strasbourg court about the environment and the decision by an unnamed judge in respect of interim orders under the Rwanda scheme are just a couple of recent examples of where the Strasbourg court has come to conclusions that are at variance with what most people would regard as the core principles of the rule of law. I do not regard this as an originalist view, incidentally. The influence of Strasbourg and the Human Rights Act is the subject of a powerful paper by Policy Exchange, The Impact of the Human Rights Act 1998 in Twenty-Five Cases.

When I chaired the Independent Review of Administrative Law a few years ago, I think that many thought that the panel would recommend the complete abolition of judicial review. This was of course never a possibility, although we did conclude that there were occasions when the courts had strayed into political areas. However, at the centre of the panel’s analysis was the acknowledgment that parliamentary sovereignty was the governing principle of our constitution. This was consistent not only with Lord Bingham’s views in his book but also with the views of every judge who made submissions to our committee. Other views are available and I fear that they may be held by this Government, or at least by those with responsibility for constitutional and legal matters. It may be that the Government’s view of the rule of law will be whatever government lawyers say it might be and what an international court might say it is.

To illustrate different views of the rule of law, let me compare two pronouncements by judges on the subject. Lord Hughes, a former Supreme Court judge, said in the case of Evans v Attorney-General in 2015 that

“it is an integral part of the rule of law that courts give effect to Parliamentary intention. The rule of law is not the same as a rule that courts must prevail, no matter what the statute says”.

On the other hand, one of the European Court of Human Rights judges in the recent, and controversial, Swiss climate change case, speaking for the majority, said that

“democracy cannot be reduced to the will of the majority of the electorate and elected representatives, in disregard of the requirements of the rule of law”.

In other words, judges know best.

If this latter view of the rule of law represents the Government’s approach, I see trouble ahead. Responding to terrorism, maintaining public order, combating illegal migration and even fighting a war have become judicialised. I have heard senior soldiers saying that legal advice is inhibiting their ability to fight effectively and, among allies, we are accused of “legal freeloading” because of our reluctance to participate in some military activities in the light of that legal advice.

I have enormous respect for our judiciary, well represented in your Lordships’ House this afternoon, but, as we said in the Independent Review of Administrative Law, there should be institutional boundaries. The rule of law certainly does not mean rule by lawyers—or even by judges.

17:17

[Lord Bach (Lab)]

My Lords, I start of course by congratulating my noble and learned friend Lady Smith of Cluny on her wonderful maiden speech. I enjoyed it thoroughly, as I think the House did too. I would also like to say that I look forward very much to the maiden speech that is to follow me, from the noble Baroness, Lady Laing.

I declare a registered interest, in that I am the unremunerated chair of a board of trustees of the Leicester law centre. I am also the co-chair of the All-Party Parliamentary Group on Access to Justice.

I very much welcome this debate; in my years here, I do not remember another like it. In itself it is significant as evidence that this Government mean it on the subject of the rule of law. The emphasis on the rule of law by the Attorney-General and Advocate-General has been both striking and encouraging. For me, the strong reference to it by the Prime Minister in his conference speech in October was a breath of fresh air, and the best moment of the speech. Noble Lords will understand my using the Bingham principles as the basis of my remarks. I will argue that a number of those principles were broken, or at least stretched to the limit, by the last Government in relation to social welfare law and family law.

Of course, I am immensely proud that our country, the United Kingdom, enjoys a unique reputation for putting our rule-of-law principles into practice. This is clearly, as we have already been told, what attracts so many from abroad to want to litigate in London, and so much more. But do we still fully deserve that reputation or is it the case that, over the last few years, it has slipped away in certain areas of the law? Is it because we have allowed part of our legal system to be attacked and dealt with without enough regard for rule-of-law principles? My view is that it is not too late to remedy this, but I believe that some damage has been done and we do not have endless time to put it right.

I will concentrate on social welfare law, which is a way of describing legal disputes involving mainly housing, debt, welfare benefits, immigration, asylum, and employment law. These issues may sometimes seem quite trivial compared with dramatic criminal trials or substantial civil cases between powerful interests. However, to the claimants and, I argue, to our system as well, they are of potentially huge significance. If you are evicted, if you lose your job, if you do not receive the benefits that you are absolutely entitled to, it can affect you and your family for ever, leading to that downward spiral that we read about so often. Under a system that works, many of those issues can be resolved by early legal advice. This was the purpose behind the old green form that many of us regret the passing of, and the system of small amounts of legal aid, supported by all political parties, that so often dealt with these problems quickly and without recourse to the courts.

Of course, the majority of people using this sensible, pragmatic system were poor and had little. They were not able to pay for legal advice, let alone representation. There never was a golden age, but the passing and coming into force, 11 and a half years ago, of the Legal Aid, Sentencing and Punishment of Offenders Act—LASPO—took many areas of law outside the scope of legal aid and has had a devastating effect on this crucial area of access to justice and thus to the rule of law. LASPO was part of the austerity programme but, sadly, has cost so much more than it has saved, in both financial and human terms. It has done so much damage that it is no exaggeration to say that the system is a long way to being broken.

I shall give noble Lords a couple of facts. The number of legal aid cases to help people get the early advice they need and are entitled to dropped from almost 1 million in 2009-10 to just 130,000 in 2021-22. The number of people having to go to court without representation has trebled. The number of advice agencies and law centres doing this important work has fallen by 59%. It is estimated that the number of people helped by legal aid in that period dropped by 4.5 million. Not surprisingly in this context, by next year a single person will not be eligible for legal aid unless he or she earns less than £9 a day, or £268 a month, 81% below the minimum income standard. Frankly, if it were not for the wonderful and selfless work done by lawyers and others, including law centres and advice centres—and pro bono work too, of course—this part of the law would be gone by now.

How does what I have tried to describe fit it with the Bingham principles on the rule of law? In my fairly amateur view, three come into play. The first is:

“The law must be accessible”.


Clearly, it is not accessible for many thousands of our fellow citizens. Another is:

“The law must afford adequate protection of fundamental human rights”.


It does not. The exceptional case funding part of LASPO has been pretty much a total failure. Perhaps most tellingly, Lord Bingham said:

“Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve”.


This is exactly what the present state of the law does not allow for.

The truth is, and it is disappointing to have to say it, that the rule of law does not seem to apply meaningfully to this—I would argue—vital area of the law. There will always be a majority of people of good will in this House and beyond who will agree that this sounds like a common-sense issue that in theory at least can be reasonably easily put right. To be fair, the last Government began to see the errors of their ways, and small steps were taken to try to relieve the worst of LASPO, which had been pointed out in many reports and studies over the years.

Of course, what is needed is an increase in legal aid and making it available for early advice in the areas of law struck down by LASPO. I accept, of course, the dire straits of the state of the finances bequeathed to this Government. My plea would be that such an egregious and clear breach of access to justice, and thus to the rule of law, should be remedied as quickly as possible; in other words, this issue should be given high priority.

I end by quoting from the Westminster Commission on Legal Aid in 2021. It said that

“there must be a recognition across government that the Rule of Law is not something we can have for free. It is a choice we make as a society: either we decide that the law should apply to us all equally or we don’t. If we decide we do, then there is a cost. It is a small cost relative to other areas of public spending and it is one that we believe is worth paying”.

17:27

[Baroness Laing of Elderslie (Con) (Maiden Speech)]

My Lords, it is with some trepidation that I rise to speak for the first time in this magnificent Chamber. How fortunate we are to spend so many of our working hours surrounded by such historical splendour.

I begin by thanking a great many people. First and foremost, I am eternally grateful to the residents of the Epping Forest constituency who returned me as their Member of Parliament at seven general elections. It was an enormous privilege to be their representative and, although I no longer represent them, I hope I can still speak up for them and the things they care about. Epping Forest is a hidden gem—not far from London, but far enough—and I am so very fortunate to live there among so many friends.

I thank sincerely the Clerk of the Parliaments, Black Rod and the wonderful doorkeepers for their guidance in recent weeks. I worked with them all for many years in my previous existence. The Clerk, Black Rod and I have dealt with some tricky issues together and I have always held them, and their colleagues, in the highest regard.

I am also extremely fortunate in my official supporters and other mentors. My noble friends Lord Forsyth of Drumlean and Lord Gardiner of Kimble were very kind, courteous and extraordinarily patient in the way in which they introduced me to your Lordships’ House. My noble friend Lord Forsyth was one of my first political heroes when he was stirring up trouble—there is a surprise—in the Scottish Conservative Party while I was a young candidate during the 1987 general election campaign. He remains my political hero, of course, and I note that he is still stirring up trouble.

My noble friend Lord Gardiner of Kimble was my opposite number as Senior Deputy Speaker for many years. We have fought many battles together, and I have always valued and relied upon his wisdom, experience and courtesy.

My noble friend Lady Stowell of Beeston has been a brilliant mentor to me over these last few weeks. She is of course full of knowledge and experience as a former Leader of your Lordships’ House, but she is also brilliant at answering the trivial questions that it seems too silly to ask. There is much to learn here and—for me, with the customs and procedures of the House of Commons running through my very veins—much to unlearn.

I crave your Lordships’ indulgence to allow me to thank two other mentors. The first time I ever set foot in the Palace of Westminster, I had just graduated from the law school at Edinburgh University. In those days many people just laughed at a young woman who wanted to be taken seriously in politics, but the Member of Parliament for Edinburgh South did not. He encouraged me and invited me here to Parliament. He was then Michael Ancram, more recently known to your Lordships, until his untimely death just a few weeks ago, as the Marquess of Lothian. It is heartbreaking that Michael is no longer with us. I am sure that noble Lords all share my sadness and my enormous admiration for such a lovely man.

I also thank Lord MacGregor of Pulham Market, who, although he has retired from your Lordships’ House, continues to observe noble Lords’ proceedings from his home in Norfolk. Lord MacGregor, to whom I was special adviser for the many years during which he served in the Cabinets of Margaret Thatcher and John Major, is a highly principled politician who elevates argument with decency and kindness. I am extremely fortunate to have been taught so much by him.

Lord MacGregor was also a distinguished member of the Magic Circle, and while training me in politics he also trained me as a magician’s assistant. On one momentous occasion, on the big stage over in St John’s Smith Square, we set up a guillotine and cut off Jim Naughtie’s head. It is for your Lordships to decide whether putting Jim’s head back on was an appropriate, or indeed wise, course of action.

I congratulate the noble and learned Baroness, Lady Smith of Cluny, on introducing this important debate and on her maiden speech. Many of us remember with affection her esteemed father, who was held in great respect on both sides of the political divide. His legacy clearly flourishes in the noble and learned Baroness, but I commend her determination to forge her own way—and I commend her decision to operate mainly from Edinburgh. We are one country.

When I made my maiden speech in the other place 27 years ago, I quoted Anthony Trollope’s Phineas Finn, which said that, as Finn stood up in the House of Commons for the first time:

“All was confused, and there arose as it were a sound of waters in his ears, and a feeling as of a great hell around him”.


How very different is your Lordships’ House. Having spent almost 11 years trying to keep order in the other Chamber along with my partner in crime, the noble Baroness, Lady Winterton of Doncaster, I am most impressed by your Lordships’ ability to self-regulate—extremely surprised, but most impressed.

I am grateful also to the Garter King of Arms and the Lord Lyon King of Arms for permitting me to take the title Laing of Elderslie. Elderslie is the village, about 12 miles from Glasgow, in which I was born and brought up. It is the place where my grandfather set up a small business in 1910, and it is the village that my father represented on the district council for 25 years, and of which he was immensely proud.

Rather more notably, Elderslie was the birthplace of Sir William Wallace, the Scottish patriot who led the fight against oppression in the 13th century. Make no mistake: William Wallace was not fighting for any kind of modern-day nationalism. He was fighting for the basic liberty of the people he led. He was fighting for freedom, and surely we are all warriors in the cause of freedom. Wallace was defeated in battle, subjected to a show trial here in Westminster Hall and brutally executed. In 1305 there was no open justice, no protection for the weak from the strong, no rule of law.

I fully appreciate that a maiden speech should be uncontroversial. I thought the subject of today’s debate would provide that opportunity, as we must all surely agree on the importance of the rule of law, but everything is relative and nothing is absolute. It is a privilege to listen today to the wise arguments of noble and learned Lords, but I dare to question whether our current governmental processes are fulfilling their constitutional role in an adequate way. Are the legislature, the Executive and the judiciary really correctly balanced? There must of course be the potential for judicial review of administrative action but, as things stand now, the fear of judicial review is in practice hindering the proper implementation of policy. That may largely be due to an inappropriate risk-aversion culture among Ministers—and I mean Ministers of all parties, as the noble Lord, Lord Faulks, just alluded to.

For the rule of law to operate effectively, those who make the law must have confidence that their intent will not be diverted or diluted by other parts of our constitutional apparatus. The way in which we make laws is as important as the laws themselves, and what a challenge that is for your Lordships’ House. What a heavy responsibility for the revising Chamber.

I am in danger of straying into contentious territory, so I must conclude. I reiterate my praise for the noble and learned Baroness’s introduction of this important debate, along with my thanks to the many wonderful people who have given me so much personal and professional support in my journey to your Lordships’ House.

17:38

[Lord Lilley (Con)]

My Lords, we have had two excellent maiden speeches from two feisty Scottish noble Baronesses, who are a great addition to our House. I particularly welcome from the noble and learned Baroness, Lady Smith, her thoughtful and promising remarks about secondary legislation, an issue where I think her talents will be put to good use.

It is a particular pleasure to congratulate my noble friend Lady Laing of Elderslie on her outstanding, amusing, punchy and at times moving maiden speech. She is best known for her near-record tenure in the Speaker’s Chair as Senior Deputy Speaker and the first woman chair of Ways and Means, where she was a commanding figure, as we probably appreciated from her maiden speech. In that role she had to practise that most valuable and rarest skill: the art of listening. It also meant that she was constrained in expressing in the Chamber what I know from private conversation are her always sensible and well-informed opinions. That did not stop her impressing her constituents, as her share of the vote over her seven elections rose from less than half the vote to nearly two-thirds. And now she will be able to express her views openly and bring her wisdom, learning and enthusiasm to your Lordships’ House, and we look forward to hearing much from her in future.

We are blessed to live in a democratic country with freedom under the law. I speak with some trepidation as the first non-lawyer to contribute to this debate, but to me the freedom of the law, as it has developed in Britain over centuries, surely means this. First, we are free to do anything, not just some list of things but anything not prohibited by law. Secondly, laws are made in Parliament, which is elected by and accountable to us. Thirdly, all of us—every citizen, public official, policeman, Minister, MP, Peer of the realm—is subject equally to those laws. Fourthly, the role of the courts is to implement those laws impartially and fairly, by due legal process. Finally, if the courts interpret statutes in ways Parliament did not intend or develop common law in ways Parliament feels is out of line with the values of the electorate, Parliament can change the law.

As a result, British people feel we own the law and overwhelmingly abide by it, and we look to Parliament to defend our freedoms. That is what generations of British people have been prepared to risk their lives to preserve. It was good enough for them, but it is not good enough for the noble and learned Lord the Attorney- General, who described it in his Bingham lecture as “thin gruel”. He said:

“Viewing the rule of law through this distorting lens of ultimate decision-making authority … risks mistaking it for the purely formal, and thin, conception of rule by law”.


He wants something “thicker and more substantive”. It turns out that means he wants it to be supplemented by

“an authority that requires that Parliament maintains in its legislation the ideals of the rule of law”

as determined by that authority.

I can find only one country constituted on this model, where an elected Parliament and Government are overseen by an unaccountable authority—a council of guardians—that can tell the elected representatives what laws they may, must and may not enact so that legislation accords with those guardians’ interpretation of their sacred text. That country is Iran, the guardians are the Ayatollahs and their sacred text is the Koran. Here, according to the Attorney-General, our unelected, unaccountable guardians are judges and lawyers. Their sacred text is the European Convention on Human Rights. In Iran, the system was established by a popular revolution; here it is being imposed by a stealthy constitutional revolution.

There has been no upsurge of public demand for the courts to be able to override Parliament. Such support as there has been has come almost entirely from lawyers, many of whom, not surprisingly, favour a system which assumes that their judgment is always wise and objective. The Attorney-General would of course deny that our courts have been given powers like those of the Ayatollahs to annul or replace laws. The Human Rights Act gives our courts the power only to declare a law incompatible with the European Convention on Human Rights. It is then up to the Government and Parliament to decide whether to repeal, amend or replace the offending legislation.

But that is half the truth which conceals the real truth, because, if the Government decline to make the law compatible, a citizen affected by it can take the case to the European court. It is then a racing certainty that the Strasbourg court will uphold or reinforce the Supreme Court ruling and the UK will then be treaty-bound to implement that judgment. That is why, of the 47 declarations of incompatibility so far, 12 of which have been overturned on appeal, which shows how subjective they are, all the rest have resulted in Parliament amending the law.

Many lay people assume that this cannot be a problem in practice. Human rights sound eminently sensible to all of us. Who could object to the right to life, freedom of expression, respect for family life, and so on? Moreover, they sound as if they are clear and absolute—but far from it. Convention rights were open to a wide range of interpretations even before the court decided that the convention is a living document into which they can read whatever they decide is appropriate, without waiting for any changes to the articles of the convention to be made by those adhering to it.

Even when the convention was being negotiated, the British team recognised that these vague rights would give the courts the right to create new laws. They concluded that it was

“inconceivable that any Government … would take the risk of entrusting these unprecedented powers to an international court, legislative powers which Parliament would never agree to entrust to the courts of this country”.

This is why, contrary to the assiduously propagated mythology, both the Attlee and Churchill Governments accepted the convention only on the basis that the UK opted out of the jurisdiction of the court and treated the convention as being purely declaratory, requiring no change in laws, even those known to conflict with it—a position which continued for 15 years.

The only thing that is certain about the meaning of human rights, so vague are they, is that they mean whatever the Strasbourg court decides they mean. The court’s interpretation cannot be repealed, amended or changed by Parliament. Take even the first right: the right to life. That sounds pretty clear-cut, but when does life begin and how should it end? Parliament is shortly to consider the Assisted Dying Bill. Suppose we enact it but the Strasbourg court were then to decide that the state cannot participate in taking life—a very plausible interpretation of that article. Then the court would prevail: the Bill would have to be annulled and Parliament would have been overruled. Suppose the reverse happens and Parliament rejects the Bill but the Strasbourg court rules, under some other article, that state-assisted dying is a human right. Again, the court, accountable to no one, would prevail over Parliament. Those are theoretical scenarios to show how the power to make intrinsically political decisions has been transferred to unaccountable judges.

Consider the recent Strasbourg court decision, mentioned by the noble Lord, Lord Faulks, telling the Swiss Government to set aside a referendum result that had agreed a gradual route to net zero by 2050, and replace it by an accelerated programme costing billions of francs. The court ruled:

“Democracy cannot be reduced to the will of the majority of the electorate and elected representatives, in disregard of the requirements of the rule of law”—


in other words, the opinions of the Strasbourg judges. Do the Government share the European court’s view of the relationship between democracy and the law? If they do, they are effectively saying that the rule of lawyers should replace the rule of law. The two are very different, as the excellent work of the Policy Exchange judicial power project has shown.

Indeed, the rule of lawyers, giving lawyers the right to create laws rather than implement them and encouraging US-style judicial activism, is one of the most dangerous threats to the rule of law. Giving judges and lawyers who are accountable to no one the power to make laws and tell Parliament what laws it may, may not and must make inevitably politicises the judiciary. This undermines public respect for the judiciary and for law itself. It is already happening and it will lead inexorably and ineluctably to demands for the political appointment and vetting of judges. Those demands are already being voiced.

We do not want to end up like America, where Supreme Court judges are appointed on the basis of their political opinions and their actuarial life expectancy, so that the President who appoints them can determine legislation for decades ahead. That sort of thing is the almost inevitable consequence of continuing on the path described by the Attorney-General in his Bingham speech. The Attorney-General may think the rule of law is “thin gruel”, but I fear that rule by lawyers is a mess of pottage, and a dangerous brew at that.

17:49

[Lord Verdirame (Non-Afl)]

My Lords, I too congratulate the noble and learned Baroness, Lady Smith of Cluny, on her excellent opening remarks; I wish her every success in her new role. With the noble and learned Lord the Attorney-General and the Solicitor-General in the other place, they make a very impressive trio of law officers. I also congratulate the noble Baroness, Lady Laing of Elderslie, on her very gracious and thoughtful speech.

I will focus my remarks on the meaning of the expression “the rule of law” and on international law. In his essay, “The Rule of Law and Its Virtue”, Joseph Raz began with a warning:

“Not uncommonly when a political ideal captures the imagination of large numbers of people its name becomes a slogan used by supporters of ideals which bear little or no relation to the one it originally designated”.


Raz went on to argue for what is sometimes described as the thin conception of the rule of law. It was thin, not because he did not believe in other values such as democracy, human rights and international law— I think that a number of noble Lords here who knew him will confirm that he was no conservative—but, on the contrary, because he wanted to set forth a viable and coherent conception of the rule of law that did not conflate the rule of law and the rule of good law. The latter, as he put it, would require “a complete social philosophy”.

Inflating the concept of the rule of law to accommodate other ideals, wishes and causes, however worthy, is a bad idea for at least two reasons. First, we will not be able to agree on it, as today’s debate shows. The thicker the conception of the rule of law, the more politicised the rule of law will become. The scope and interpretation of some fundamental rights, and the ways in which conflicts between rights should be resolved, are an example. Those issues will remain contested. I agree with the noble and learned Lord, Lord Etherton, that a fair trial is the obvious exception because it is intertwined with the rule of law.

Secondly, the key features of the rule of law are legal certainty, clarity and predictability—that is the very first principle of the rule of law, according to Lord Bingham. By expanding the rule of law to include democracy—a list of fundamental rights that is itself unsettled and ever expanding—as well as every rule of international law, we end up with an all-encompassing, panoptic concept of the rule of law that itself becomes a source of unclarity, uncertainty and unpredictability; in other words, we end up with a conception of the rule of law that does not advance the rule of law. As anticipated by Raz, when the concept of the rule of law is bloated in this way, there is also a risk that it becomes a perfunctory slogan.

As far as international law is concerned, it has been the long-standing policy of successive British Governments that Britain complies with its obligations under international law and promotes respect for international law globally. This commitment has historically been accompanied by a well-informed and savvy understanding of international law, of how it is created and of the fundamental differences between international law and national law. The noble Lord, Lord Faulks, referred to the new guidance from the Attorney-General on legal risk; I am less concerned than the noble Lord, but I would welcome a discussion on that document because it is very important and useful.

The two main sources of international law—treaties and custom—have no equivalent in domestic law. Critics of international law have often argued that international law does not have the clarity and certainty that the rule of law requires. They say in particular that customary international law is too vague. Customary international law is defined by two elements, each of which is linked to the state. It is formed through the practice and the views of states—states create custom. For that reason, states that support the rule of law, such as Britain, have a responsibility to be transparent and clear about what they consider to be the rules of customary international law. This is one of the ways in which, historically, Britain has ensured the progress of international law. It was one of the states that published the most complete records of its practice and statements on its position on customary international law. One of the most wonderful books in international law is Law Officers’ Opinions to the Foreign Office, 1793-1860, edited by Clive Parry. It shows how Britain contributed to the formation and development of international law more than perhaps any other state. It also shows what made the reputation of Britain in international law. In the 19th century, when law officers were asked what their views were on the right to stop and search vessels on the high seas in certain circumstances, they always had a clear answer.

This takes me to a very topical question, on which I have written a paper with Professor Ekins: whether, under customary international law, there is a rule that requires the United Kingdom to respect the immunity of a Head of Government of a state that is not a party to the ICC. I believe the answer to be clear: I do not think that there is a conflict between customary international law and domestic law. The position under customary international law is clear, and it is reflected in Article 98.1 of the statute. However, it is important for us to know what the Government’s position is. To invoke the rule of law as a reason for not stating their position on this or other matters is, with respect, rule of law double-speak.

In conclusion, I will make three points that I hope can help us to rebuild consensus on the rule of law. First, we must proceed on the basis of a meaning of the rule of law that is coherent and enjoys wide support across different political views. We cannot have the Government of the thin conception of the rule of law followed by the Government of the thick conception of the rule of law. We cannot use the rule of law as a vehicle for imposing a particular political wish list, or a particular philosophical view, on others.

Secondly, no political party owns the rule of law. In an adversarial political system, Newton’s Third Law of Motion applies:

“For every action, there is an equal and opposite reaction”.


If one political side claims ownership of the rule of law—or of human rights or international law—someone on the other side will disown it, and we will all be worse off because of it.

Thirdly, we have to protect the rule of law from demagogues. That was the focus of the Attorney-General’s very well-chosen theme for his speech at the Bingham Centre. I agree on the importance of this objective, but I take issue slightly with a comment that was reported in the press. To be fair, it was probably off the cuff, but it was reported quite widely. He said that

“we need to be militant about our belief in the rule of law … We should be shouting it from the rooftops”.

It is precisely because I am concerned about populism—as he is—that I am wary of metaphors. Populism thrives on the effective use of metaphors to mobilise the masses behind certain emotional causes. At a time of great political division, such as we are going through now, there is no shortage of people in our society who want to scream slogans on megaphones, bang pots and climb lamp posts—we see them on the streets of London every Saturday—but that is not what lawyers do. We should not be the ones who try to climb higher or scream louder—although, unfortunately, looking at social media, there are lawyers these days who seem to think that this is precisely our role. Our social responsibility is to resist these populist trends. We listen to and respect each other because we value civil disagreement. We only ever seek to persuade through argument. These are the best traditions and habits of the legal professions, and they are crucial to the rule of law.

17:58

[Lord Sikka (Lab)]

My Lords, I congratulate the noble and learned Baroness, Lady Smith of Cluny, and the noble Baroness, Lady Laing of Elderslie, on their excellent speeches. I welcome them to the House and look forward to working with them.

The rule of law is the foundation stone of democratic, open and peaceful societies. It provides stability, accountability and the protection of rights. When applied correctly, it can limit the arbitrary powers of the state and wealthy elites. But all is not well: the rule of law is weakened when people cannot afford access to the courts and are forced to suffer in silence. With the erosion of legal aid, access to the law is now denied to millions of people. The backlog of some 60,000 Crown Court cases means that legal processes are not delivered on a timely basis and justice is denied.

There can be no equality before the law unless there is equality of access to the law. Even if people get access to the courts, at best they will get only an interpretation of law, not justice. The rule of law and justice are not synonymous. Justice is a higher-order concept and is concerned with fairness, equity, respect for others, freedom, equality, human rights and much more. Such concerns are increasingly downgraded in the creation of new laws.

There is also concern that some are not subject to the laws applied to the masses. For example, the Duchy of Cornwall enjoys tax exemptions not available to other businesses that compete with it. Its exemptions, in my view, are not consistent with the rule of law. To the best of my knowledge, no one has ever organised petitions or marches demanding social harms, but that is what is inflicted on the people by Governments and Parliament as they enact a large number of laws.

Some 6.34 million people in England are waiting for 7.57 million hospital appointments; 2.8 million people are chronically ill and 300,000 people a year die while awaiting hospital appointments; but Governments prioritise arbitrary fiscal rules over human welfare. For the last 14 years and more, Governments and Parliament have passed numerous laws to impose austerity, cuts in real wages—especially in the public sector—and cuts in benefits and public services. Major parties now compete to see who can cut the most, but they never talk about justice and human cost and what the consequences of these new laws are in human terms.

Earlier this year, a report published by the Institute of Health Equity at University College London reported that more than 1 million people in England died prematurely in the decade following 2011 due to poverty, austerity, and the impact of Covid, all of which could have been controlled by the Government. This month, Marie Curie reported that last year 111,000 people died in poverty; 16 million people, including 5.2 million children, live in poverty. Many go hungry, but Governments continue to enact laws which perpetuate hunger, injustice and poverty on people.

Governments remain obsessed with austerity. Laws are passed to impose a two-child benefit cap and winter fuel payment cuts on pensioners living below the poverty line. Hungry children, shivering pensioners and premature deaths of millions are the product of the contemporary rule of law, which is increasingly held in contempt by many people for the hardship that it inflicts on them; yet at the same time they want laws changed so that they can be protected. The Criminal Justice Act 2003 introduced indeterminate prison sentences for minor offences, and has blighted lives. Such laws are the outcome of political populism, which has little regard for the human consequences, and a political system where legislators are pressurised to follow the diktats of the party machine. Justice simply takes a back seat. It is good to know that the Legal Aid, Sentencing and Punishment of Offenders Act 2012 abolished IPP sentences, but the abolition did not apply retrospectively to people who had already received such a sentence. Injustice continues.

Parliament plays a dual role. It excludes people and inflicts injustices, yet at the same time it is the only body that can address them. Women had to resort to violence to get the right to vote. People have long highlighted the evils of gender and racial discrimination through petitions, marches and social disruption before Parliament could be persuaded to move. Why does the rule of law seek to exclude people and make them second-class citizens? Why is Parliament not proactive in dealing with injustices? Why do these injustices have to linger on for decades and decades?

Such is the rule of law in this country that the state actually protects organisations with criminal records. Water companies are permitted by law to dump sewage in rivers, seas and lakes because it is profitable. They have 1,109 criminal convictions, yet this House has just passed a law saying that these organisations can remain in control of the supply of a vital resource.

Any discussion of the rule of law ought to ask these fundamental questions: whose rule, whose law, and for whose benefit? We live in a society differentiated by class, income, wealth, age, gender and many other factors. There are no universal laws that benefit everyone, but that is what we should be aiming at. Regulators often act as judges, juries and quasi-courts. They very rarely act with any impartiality. Just today, a report by the Investment Fraud and Fairer Financial Services APPG said that the Financial Conduct Authority failed to investigate frauds.

Frauds at HBOS go back to 2002 but are yet to be investigated. No Minister is pushing the FCA to investigate. In 2012, HSBC pleaded guilty to “criminal conduct” in the US and was fined $1.9 billion but the then Chancellor, George Osborne, and the regulators secretly urged the US authorities to go easy on HSBC. To this day, there has been no UK investigation, and no Statement has been made to Parliament to explain the Government’s position. People expect the rule of law to be impartial and fair, but that is not the case.

Parliament makes laws which privilege the rich and powerful. A carer earning £1 over the income threshold faces the possibility of being prosecuted and forced to pay back large sums of money. That does not apply to people dodging taxes by using offshore vehicles. No questions are asked about their conduct. HMRC has absolutely no estimate of the taxes lost due to profit shifting. The Criminal Finances Act 2017 was introduced to curb corporate tax abuses, but to this day there has been no prosecution at all under it.

Under the insolvency laws, secured creditors, which are usually banks, private equity or hedge funds, have the first bite of the assets available when the borrower goes bankrupt. Small people—SMEs or individual traders—get nothing. There is no equity in insolvency law; there is no equality; there is no fairness. We really need to ask questions about whose rule it is, whose law it is and who actually benefits from it.

18:08

[The Lord Bishop of Norwich]

My Lords, I am grateful to the noble and learned Baroness, Lady Smith, for bringing this debate forward and congratulate her on her outstanding maiden speech. I also congratulate the noble Baroness, Lady Laing of Elderslie, on hers.

While I feel an utter novice in this area, especially following such informed speeches, I am acutely aware that your Lordships have a role in reviewing decisions of the General Synod of the Church of England and passing—or not—our Measures into law. As such, our ecclesiastical laws are also laws of the land. The Church of England values its participation in this process, and, by virtue of that, engaging with any debate on the rule of law that strengthens the ordering of a safe, healthy and flourishing society.

The speech by the noble and learned Baroness the Advocate-General reminded me of themes that confront any pilgrim to the isle of Iona, a thin place so beloved of her late and admired father. For, in the hymns of the Iona Community, themes of justice, equality, fairness and transformation are entwined, living out in a very modern way the care and communal responsibility that St Columba lived in that ancient place of prayer.

Although the concept of the rule of law predates Judaism and Christianity, both faith communities later adopted and adapted substantial elements of legal codes and practices from antiquity to order their community life. In turn, they commended the core principles within these legal codes for application in wider society, with the hope of promoting communities in which all could flourish.

Among the important ways in which Judaism and Christianity modified the pre-existing legal tradition was to change a system that explicitly favoured the powerful in its laws into one that was infused with the idea of equal justice for all, regardless of social class. Christians, together with our Jewish neighbours, continue to believe this fundamental principle of equality of all human beings before the law—just as we believe in the equality of all human beings before God. It is perhaps one of the greatest gifts that Judaism and Christianity have given to cultures shaped by the Bible. In fact, the historian Tom Holland makes the case in his book Dominion that much of what is shared in so-called western culture—ideas about human rights and a legal system that treats all equally—has its underlying rationale in Christian belief and its influence on society in promoting the flourishing of all people.

Jesus, drawing on the Book of Leviticus, appeals to his followers to love our neighbours as ourselves. This commandment continues to order so many of the convictions about the rule of law that are expressed from these Benches and from others in your Lordships’ House. We see it lived out in our work in seeking to have legislative and judicial processes that balance protecting the innocent with the aim of rehabilitation and restoration of the guilty. We see it lived out in seeking to safeguard nature by honouring our commitments under international law and treaties to care for our planet home through fairness, transparency and accountability, and, for example, in combating illegal logging, poaching and wildlife trafficking.

We see it lived out also in our work in seeking a just and fair society that uses its laws and its judicial system to protect the vulnerable and marginalised. When Exodus calls for protection of the widow, the foreigner and the orphan, this is so that the most precarious and vulnerable receive legislative and judicial care. Of course, all people deserve our care and proactive concern, but protection for the most vulnerable may need to be enshrined in law and judicial decisions in order to ensure that the rule of law is administered equitably to all.

We have seen in recent years a sad willingness to disapply human rights legislation, particularly with respect to the most marginalised people in the asylum and criminal justice systems, in direct contravention of our proud traditions in this country. Does the noble and learned Lord the Attorney-General agree that when we allow a chipping away of universal rights, we are in fact betraying a proud tradition and undermining the society we all seek to build?

18:14

[Lord Bellamy (Con)]

My Lords, I add my congratulations to the noble and learned Baroness the Advocate-General for Scotland and to my noble friend Lady Laing on outstanding maiden speeches.

I will address something that has not been directly touched on so far, which is the importance of the role and the integrity of lawyers in the application of the rule of law. I will then come on to discuss some of the issues that may arise as a result of the Horizon scandal.

I ask first, as some other noble Lords already have: what is the essence of the rule of law? My answer is the same as that of Thomas Fuller in the 17th century:

“Be ye never so high, the law is above you”.


Indeed, we sit here in this Chamber under the visual representation of that principle. If noble Lords opposite look at the fresco up on the left-hand side, they will see the famous scene from Shakespeare in which King Henry V—in modern terms, the Government—kneels in front of the Lord Chief Justice, Judge Gascoigne, and accepts his authority as embodying the rule of law. If every thought one has ever had is to be found somewhere in Shakespeare, for the rule of law please see “Henry IV, Part 2”, act 5, scene 2.

In a modern, democratic society such as ours, the law in question, and hence the rule of law, requires not only the consent but the trust of the governed. This trust we achieve, broadly speaking, through parliamentary democracy and an independent and incorruptible judiciary, both priceless aspects of the rule of law. But in our adversarial common-law system, the judges determine cases that are presented and largely conducted by the lawyers. So today I would like to concentrate on the role of lawyers in the English common-law system, particularly in cases where the resources of the parties are not evenly matched.

I say the role of lawyers in the English common-law system since very long ago, in the last century, I once worked as an EU judge in a system essentially based on the more inquisitorial approach of French civil law. In a more inquisitorial civil law system, the role of the lawyer is much reduced: it is the judge who has the primary responsibility for ascertaining the truth, examining the witnesses and deciding the law, with only limited participation by the lawyers. By contrast, in our adversarial common-law system, the lawyer’s role is central. The lawyers assemble the evidence, present and shape the case and challenge the witnesses. The role of the first instance judge, or in criminal cases the jury, is essentially to decide which of two rival versions is to be preferred. The judge and the court rely on the lawyers to a very considerable extent to draw attention to the evidence, to ensure disclosure, to cross-examine and so forth. So the fairness and the integrity of our legal system in practice depend significantly on the competence and integrity of the lawyers. If that competence or integrity weakens for any reason, the system is vulnerable to injustice, particularly where there is inequality of arms between the parties, and thus the rule of law is itself diminished.

It is for that reason that lawyers have ethical duties, not only to the client but to the court, to act with

“complete integrity, probity and trustworthiness”—

to quote Tom Bingham when Master of the Rolls. But, as the noble and learned Lord, Lord Hoffmann, has said, for the lawyer, this in turn gives rise to “divided loyalties”, because the lawyer also has a duty to the client to do the best they can for the client. In practice, there may be very heavy pressures on the lawyer to act primarily in the client’s commercial or reputational interest, in the interest of the lawyer’s firm or, for an in-house lawyer, in the interest of his or her employer. In a civil law system, those conflicts are reduced because the role of the lawyer is reduced, but in a common-law system, very difficult dilemmas are sometimes presented to our lawyers. Those very difficult dilemmas and the rules applicable to them must be worked through very openly and very thoroughly for the rule of law to thrive.

I am sorry to say that in my short time as a Minister, answerable to your Lordships for the affairs of the Ministry of Justice until the last election, I began to wonder whether everything in these regards was entirely in order. In my conversations around the country, judges in courts and tribunals operating at the sharp end, if I may call it so, raised concerns about declining ethical standards, not least the widespread use of inexperienced and often poorly trained paralegals. Then along came SLAPPs, where lawyers in essence weaponised the law to the detriment of weaker parties. Before your Lordships on behalf of the Government, my noble friend Lord Sharpe and I sought to address that problem, at least in part, in the Economic Crime and Corporate Transparency Act. Later, when I was responsible in your Lordships’ House for the Arbitration Bill, questions of ethics came up again, including what is known as the Nigeria case, where it turned out that even the lawyers conducting the arbitration were personally implicated in corruption.

However, towering above and overshadowing all that was the Horizon scandal, involving hundreds of wrongful convictions, wrongful imprisonment and many other cases where money was wrongfully extracted from sub-postmasters or sub-postmistresses, leaving lives ruined, families in deep distress and, in some cases, deaths or suicides. My last ministerial duty was to support my noble friend Lord Offord in passing the unprecedented legislation needed to overturn those convictions. I have been asked by fair-minded observers how the legal system in this country can be said to uphold the rule of law if such an appalling disaster as Horizon can be allowed to happen. There are no doubt many views, but in the post office inquiry, great attention has been focused—whether fairly or not, I do not know—on the role of the lawyers. We need to wait for the outcome of Sir Wyn Williams’ report before we have the full picture, but there is a question as to whether Horizon was a one-off or whether there are weaknesses in how our lawyers approach their duties and responsibilities.

Richard Moorhead, professor of law and ethics at the University of Exeter, considers that there is a problem. He sets that out in his Hamlyn lecture this month, entitled “Frail Professionalism: Lawyers’ Ethics After the Post Office and Other Cases”. These are highly prestigious lectures. Recent lecturers having included the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Thomas of Cwmgiedd. Professor Moorhead suggests that current ways of thinking in the legal profession result in some cases in damage to the rule of law, particularly where there is inequality of arms. He discusses ways of promoting more rigour and honesty on the part of our lawyers.

Therefore, does the Attorney-General agree, in the light in particular of Horizon, that there should be now a full review of the ethical standards and training of all lawyers in England and Wales, including paralegals, and that that review should further define the ethical standards applicable, reinvigorate those standards and ensure that there is proper accountability and effective regulation of the legal profession?

18:25

[Baroness O'Loan (CB)]

My Lords, the rule of law is a pillar of our constitution, proudly proclaimed and promoted across the world. We criticise autocracies and dictatorships which deprive people of that due process which enables them to access their rights, yet we have problems. I was very reassured by the commitments made by the Minister in her excellent speech. I congratulate her and the noble Baroness, Lady Laing, on their maiden speeches.

In 2010, Lord Bingham said:

“Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably”.


In 2022, your Lordships’ Constitution Committee described the rule of law as

“vitally important to the health of our democracy”,

saying that it was “critical” that Ministers understood the rule of law’s key principles and considered these to have primacy over political expediency.

I am not sure that we have a mechanism for ensuring that all Ministers understand the primacy of the rule of law. We do not have a requirement to consider whether a proposed law is compliant with the rule of law. Would it be desirable to introduce such a requirement? Even the requirement to ensure compliance with our obligations under the ECHR does not seem to work. In 2023, Justice reported, correctly, that there had been

“a growing legislative disregard for human rights … Laws like the Public Order Act 2023 could have a chilling effect on our rights to freedom of thought, expression, and peaceful assembly”.

It cited the excessive use of Henry VIII powers, saying that this was evident, for example, in the European Union (Withdrawal) Act 2018, in which

“power is bounded by whether the minister thinks its exercise is ‘appropriate’, rather than it being objectively ‘necessary’”.

In 2022, the much-missed Lord Judge, speaking of the extensive use of secondary legislation under the Public Health (Control of Disease) Act 1984 during the coronavirus epidemic, observed that of the 582 measures passed under that Act, 537 were made by negative resolution and 66 came into effect before the statutory instrument was laid before Parliament. He spoke graphically of the nature of those measures, which had the effect of interfering with our right to live our lives, carry on business and try to conserve the economy. Breach of the Covid-19 regulations was a criminal offence, and almost 120,000 fines were issued over the two years. It now appears that many of those restrictions were not necessary, effective or proportionate.

Most regrettably, the UK has recently seen a number of very questionable Acts and statutory instruments forced through Parliament. The Illegal Migration Act, referred to at length by the noble Lord, Lord Thomas of Gresford, required the detention and removal of individuals arriving in the UK without a visa, either to Rwanda or another safe third country, with no consideration of the asylum or human rights of any asylum seeker, who could be detained with no access to judicial review or immigration bail for the first 28 days. In November 2023, the UK Supreme Court unanimously found the Government’s policy of sending asylum seekers to Rwanda unlawful, because it is not currently a safe country. Government then entered into the Rwanda treaty, forcing through the Safety of Rwanda (Asylum and Immigration) Act 2024, which states that courts, tribunals, the Home Secretary and others, when deciding on the removal of a person to Rwanda, must conclusively treat Rwanda as a safe country. Passing a law saying that Rwanda is a safe country did not make it one.

We also saw the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 come into effect in May this year. Under that Act, bereaved families of Troubles bombings and other murders, no matter where those atrocities occurred, were deprived of the ancient legal processes of inquests and civil actions. In many cases, the prospect of prosecution even for murder was removed as a consequence of giving immunity to those who provided an account to the ICRIR describing their Troubles-related conduct.

This May, inquests in progress, which had not reached the point of final determination, ceased. In Belfast 38 inquests involving 70 individuals stopped: a small number for the coronial system, yet of massive importance to the families who sought those inquests. Many inquests involve allegations by families that state agents, from both republican and loyalist paramilitary groupings, working for or employed, assisted or enabled by the state, were involved in murders and other serious crime during the Troubles.

In April this year, the Court of Appeal rejected a claim that a coroner’s decision that a limited summary of some material should be released to the family of Paul Thompson would cause too much damage to national security. The Lord Chief Justice of Northern Ireland, Dame Siobhan Keegan, said:

“We are not convinced that disclosure of the information would breach or depart from the (Government’s) NCND … policy”.


Similar issues apply in a number of other cases, and the Secretary of State immediately announced plans to appeal the ruling to the Supreme Court.

In other cases, coroners declared their inability to continue inquests because they cannot hear evidence in closed session and called for public inquiries. Sixty year-old Sean Brown was abducted in 1997, driven some six miles in the boot of his car and shot dead. His inquest began in 1997; the first hearing was in 2023. There were 40 hearings to discuss disclosure of sensitive material, which was opposed on grounds of national security. In February this year, it emerged that more than 25 people, including state agents, have been linked by intelligence to his murder. The inquest concluded in March because the coroner would have had to use intelligence material to answer the questions that he must by law answer. Mr Justice Kinney said that a public inquiry was

“the appropriate way to consider the circumstances of Mr Brown’s murder”.

The Secretary of State rejected this and has said that the Brown family should go to the ICRIR, yet it has been criticised by the Court of Appeal because the Secretary of State can restrict access to precisely the information with which the coroner could not deal. I understand that the Brown family are now engaged in judicial review of the Secretary of State’s decision not to grant an inquiry.

Following a Northern Ireland High Court decision about the Troubles Act, the Secretary of State appealed, as did some of the families. The Court of Appeal ruled two months ago and said that Article 2(1) of the Windsor Framework imposes an obligation on the UK

“to ensure that no diminution of rights, safeguards or equality of opportunity”

arises for individuals who are resident in Northern Ireland as a result of the UK’s withdrawal from the EU, that this provision is “directly effective”, and that relevant civil rights were engaged, including certain rights under the EU victims directive.

The court said that the legacy Act had resulted in a diminution of the rights of the applicants, who have been

“deprived of access to inquests, police and Police Ombudsman investigations”,

the potential of criminal investigations of offenders and civil remedies against alleged perpetrators. All those constraints were “incompatible with the Directive”. The court concluded that by virtue of Article 2(1) of the Windsor Framework, the UK-EU withdrawal agreement and the European Union (Withdrawal) Act, the correct remedy was disapplication of the legacy Act

“to the extent of the incompatibility”.

There may yet be appeal to the Supreme Court. The Government have lodged notice of appeal but have yet to decide whether to proceed.

Before the election, the Labour Party stated that the Troubles Act would be repealed. The Secretary of State has repeatedly said that he will do so—nothing has happened yet. There has been international condemnation of the UK’s passing of the Act. Ireland is bringing proceedings against the UK in the European Court of Human Rights. More importantly, people whose loved ones died or who were seriously injured over 30 years throughout the United Kingdom have been deprived of the legal remedies that are available to all other people in the UK in cases of non-Troubles-related injuries and deaths, and their pain and suffering has been enormously exacerbated.

Trust in the rule of law and in the integrity of successive British Governments has been seriously eroded as a consequence of what has happened. It is to be hoped that His Majesty’s Government will honour their repeated promises to repeal the Troubles Act. What is required is a system that does not limit investigation, and that enables the operation of the rule of law in the context of the ongoing resolution of these matters.

18:35

[Lord Stewart of Dirleton (Con)]

My Lords, I join the whole House in welcoming the noble and learned Baroness to her place. I seek to give the House an assurance of two things that she already knows. First, as Advocate-General for Scotland, she enjoys the support of a dedicated, professional and, in every way, excellent department of civil servants. As a self-employed advocate, it may come to her, as it did to me, as something of a surprise to find, among other things attaching to the role of Advocate-General, that one is suddenly responsible for 500 employees. I am sure that the noble and learned Baroness will take to that readily. Secondly, in her role she will enjoy the support of all of us who have had the honour and privilege to serve in the office she now holds.

I am particularly glad to see the noble and learned Baroness in her place, as there seemed to be some delay in her appointment after the general election—so much so that when I was in the House for the debates on the King’s Speech, I was approached by the noble Lord, Lord Foulkes of Cumnock, who asked: “Are you still Advocate-General?”. I had to tell him that, as far as I was concerned, the Government had elected to seek advice about Scots law from another quarter. He said: “Well, they haven’t appointed a successor yet”. I said: “Well, that may well be the case, George, but they have stopped paying me and, as far as I am concerned, that determines the matter”.

The excellent debate, which we have enjoyed, points up something of the Protean nature of the rule of law: a concept shifting subtly in our hands as we seek to define it. It was that very act of pinning down to which the noble Lord, Lord Faulks, spoke in his submission to your Lordships. It was also echoed by the noble and learned Lord, Lord Etherton, and the noble Lord, Lord Verdirame. It defies a simple definition that is universally applicable. It is made up of a number of component parts, and I associate myself with the remarks of the noble Lords, Lord Bach and Lord Sikka, concerning the importance of access to law. In so doing, I declare my interest as an advocate with a justiciary practice who is therefore paid substantially out of the public purse.

We must also be careful to test some of the assertions made by the noble and learned Baroness in her excellent speech. When she says that compliance with international law is the right thing to do morally, does that not rather beg the question of whether international law in specific circumstances is moral in itself? Does it not beg the question of whether its materials are apt, necessarily, for contemporary circumstances? When the noble and learned Baroness pays tribute to the role of the Human Rights Act in protecting human rights, is that not as much a recognition of the hard work done by generations of our predecessors as lawyers and as parliamentarians? It is not surprising, surely, given that the convention was conceived of as a means of inoculating other jurisdictions with our legal norms—other jurisdictions as culturally and as materially sophisticated as ours.

We cannot, as lawyers and parliamentarians, be blind to the fact that law has, over the course of history, supported oppression. My noble and learned friend Lord Bellamy, in his thoughtful submission, made reference to that in the context of the ongoing Horizon scandal. The House will be aware that, over the years and centuries, eminent lawyers in different times, working within noble legal traditions, have bent their talents and learning to erecting a framework for what to us, but not to them, seemed to be morally indefensible concepts. The obvious examples that I can give would be the use of Roman law in erecting a framework around the concept of slavery, or the role of lawyers in South Africa who did not honourably distance themselves from the exercise, working within the noble Roman Dutch tradition, in building a structure for apartheid.

My noble friend Lord Wolfson, replying to the noble and learned Baroness, gave a speech with not one word of which I would disagree. In the course of my short remarks, I seek to echo just a couple of the points he made. I contend that one of the most important would be that we must not, and must be careful of, dressing up political decisions as legal ones. There is a worrying trend of judicialising what are political matters, of taking out of the political realm matters that belong there and placing them out of the reach of democratic oversight. Parliaments, courts and judges put law in place, but they cannot of themselves clothe law with authority—my noble friend Lord Lilley made that point in his excellent submissions to your Lordships. Ultimately, in a parliamentary democracy, it is for Parliament, the apex of the rule of law, to confer authority on law. We must acknowledge that and seek to live up to it. To the Executive alone rests that task.

Only the Executive have the expertise and infrastructure properly to enact law, to research its implications, to predict its outcomes and to see it in the context of other law. The legislature is the means by which we and the Executive can be satisfied that laws proposed will be acceptable to the electorate. Because our judges have no mandate: unlike Governments, they cannot be voted out. Our courts lack the scope to assess the impact of their decisions, and that is sensible where they operate in their proper role of interpreting and applying laws enacted by Parliament. To echo something said by the noble Lord, Lord Verdirame, in an earlier stage of today’s proceedings—during Questions—laws must be clear and intelligible. That principle inspired the initiative of King Alfred the Great to express law in the English language so that it could be acceptable and accessible to everybody. We must recognise the importance of that democratic consent—my noble friend Lady Laing of Elderslie alluded to this in her splendid and moving maiden speech. The public will not have confidence in law enacted in a manner remote from them and apparently dismissive of their concerns.

My noble and learned friend Lord Bellamy gives voice to the view that all things are ultimately to be found in Shakespeare. Let us be careful lest the public come to echo the call of the rioters in “Henry VI”,

“first … let’s kill all the lawyers”.

The second verse of our national anthem contains a series of desiderata. The third is, “May he”—the antecedent of the pronoun “he” being the King—

“defend our laws,


And ever give us cause

To sing with heart and voice

God save the King”.

By our laws, that conveys laws enjoying the confidence of the governed. Any consideration of the rule of law must bear that important concept in mind.

18:44

[Lord Inglewood (Non-Afl)]

My Lords, I, like other speakers, begin by welcoming this important debate and the remarkable speeches we have heard. In addition, I congratulate the noble and learned Baroness the Advocate-General on both her appointment to her role and the splendid maiden speech she gave us.

We are talking about something that really matters in today’s turbulent and uncertain political world, both here at home and abroad. From my perspective, freedom, democracy and the rule of law are the main building blocks of our own country’s political being. None of them by themselves can ensure its continuance, but each is a necessary, if not a totally sufficient, component. I do not think that it is alarmist to point out, as others have in this afternoon’s debate, that it was not all that long ago that we spent quite a lot of time in this Chamber discussing the then Government’s wish to disapply the courts’ oversight of their own activities. It concerned me then, and it concerns me now, and I do not think it is an esoteric or theoretical topic: it is a contemporary and a relevant one. These things are now in the political air, and when they are there, it is time for us all to be vigilant.

In the run-up to the general election, some of the incoming Government’s advocates were calling for reform of the House of Lords to remove some of their political opponents from Parliament. I should explain that I am a hereditary Peer and, unlike the noble Baroness the Advocate-General, I am heading for the knacker’s yard—although I can say that I became a Member of two Parliaments in one week and, since the other one was the European Parliament, neither is now possible. I think there are plenty of good reasons to reform your Lordships’ Chamber, but that particular one is the worst, not least because of the Parliament Acts.

I have said it before and, no doubt, may well say it again: there is a real case for at least thinking about and looking at the Parliament Act 1911, as amended, in the context of the abolition of the hereditary Peers Bill, to see whether it is necessary and appropriate for some special additional exclusion to be included, lest, at some time in the future, some Government wish to completely reform the second Chamber or abolish it—or even, I suppose, possibly, in theory, abolish Parliament. We are not now in 1911 or 1949, and the world is a different place: the “good chaps” theory of government is less widely endorsed.

When we were thinking about this debate, something struck me—and I am clearly not the only member of your Lordships’ House who thought it. While enormous areas of current activity in the world are regulated in some form or other by soft law, which is hardly touched on in Lord Bingham’s seminal book, the cocktail of policy, hard law and soft law is various and wide ranging, and the rule of law—which, as we have heard, apart from anything else, has to provide redress—is in a bit of an uncertain place in some respects. This got me thinking about the recent budgetary announcement in respect of BPR and APR.

First, I apologise for bringing it up in this context. Secondly, I have to declare a personal interest, which will affect my family more than me, I think. I am sure the noble and learned Lord the Attorney-General will tell me that this is completely irrelevant, so I raise the point now to save him the trouble—but actually I am not quite so sure. We know from what the Secretary of State for Defra has publicly stated that he and his department were blindsided by this move. We also know that the Government have laws and policies in respect of food, land use, the wider environment, climate change and so on, and these clearly were not taken into account when formulating that policy.

We also know from the recent cases of Finch and West Cumbria Mining that the Government, in exercising their discretion, must take all their policies into account. The purpose of raising the tax is to get your hands on the money—the money that the farmers and the businessmen own. That is what taxation is all about. It would be perfectly possible to do this without damaging the other policies and destroying working capital in an important sector that is currently under the cosh because of the policies of this Government and the last and which, in a period of change, faces particular expense.

While many in this debate are lawyers of much greater distinction than I could ever be, I am possibly the only one of us who has a City and Guilds qualification from an agricultural college in dairy enterprise management and farm business management. Agricultural economics is different and distinct from conventional mainstream economics and does not necessarily accord with the more generally understood rules of City banking and academic and commercial analysis.

Empirical analysis suggests that the way in which farming and land use happens is a bit different. In approaching this, the Government have not only ignored their own policies but applied an inapplicable methodology: conventional business economics. This is not the right way to do it. The proper way of approaching this matter would be a bit different. What they have done does not accord with the principles of the rule of law; the process is flawed and will not command public confidence.

I conclude my remarks by saying that the rule of law should and must be at the centre of our political processes and culture because, if it is not, we shall be replacing it with the law of the jungle, where life is nasty, brutish and short—and I do not think that any of us wants that.

18:50

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I have been listening to some very high-level exchanges, including two extremely distinguished maiden speeches. I am one of the minority of non-lawyers participating in this debate today, so I am afraid I shall be operating at a less rarefied level. For the purposes of this debate at least I, as a non-lawyer, will be the man on the Clapham omnibus.

I want to make it clear that this man on the Clapham omnibus understands, appreciates and supports the vital role that the rule of law plays in our society. You cannot study history at university, as I did, without realising that to be the case. But I am also of the view that there are aspects of the rule of law, as seen from my omnibus, that are under strain. This non-lawyer offers three for thought and discussion.

The first is the danger of the law becoming deracinated and distanced from the society it seeks to serve. An essential part of maintaining general confidence in the rule of law is what I have called before in speeches in your Lordships’ House “informed consent”—my noble and learned friend Lord Stewart of Dirleton dealt with this topic a bit in his remarks—by which I mean that the rule of law cannot consist of ex cathedra judgments from some lofty chamber. Rather, it has to take cognisance of how our society is changing and how our social attitudes and approach are altering. In short, it has to remain in touch with, and be seen to be relevant by, those of us on the Clapham omnibus.

I appreciate that many lawyers will see this as wrong and inappropriate. Some might say that I am suggesting that the courts bow to the whims of temporary public opinion and that, if society wants a different approach, it is up to Parliament to change the law and make it so. I understand this up to a point, but we all know that the law needs interpreting and there is no fixed, immediate and completely correct view. That is, after all, what legal cases are about. Where on this possible spectrum of interpretations does the judicial judgment fall? If these judgments are seen by us on the Clapham omnibus to be at odds with our life experience, and persistently so, our confidence in the rule of law will be weakened. That is my first point.

My second point is about the rule of law and secondary legislation. I was interested to hear in her very impressive maiden speech the noble Baroness the Advocate-General refer to this issue, as indeed did my noble friend Lady Laing of Elderslie.

Some Members of your Lordships’ House will recall that I was, for a time, chairman of the Secondary Legislation Scrutiny Committee. With my noble friend Lord Blencathra, who was, at the same time, chairman of the Delegated Powers and Regulatory Reform Committee, and assisted enormously by, sadly, the late Lord Judge, we ran a campaign. Our report was called Government by Diktat. The DPRRC report was called Democracy Denied?

There were several debates on these reports held in your Lordships’ House and, if the noble Baroness the Advocate-General, and indeed the noble and learned Lord the Attorney-General, have a moment to glance through Hansard, they will see that there was an overwhelming level of support for addressing this issue from across the House, not least from the Front Bench of what was then Her Majesty’s loyal Opposition —now His Majesty’s Government. We have heard a little less about this since the general election, although tonight gave me renewed hope that things might be changing. The Advocate-General said in her opening speech, while promising a fresh approach, “This is what a reset looks like in practice”. I hope I have quoted her correctly and that she will forgive me if I say that it is a little skeletal for what I am hoping for in this. I wonder whether the Attorney-General might be able to give the House a bit more detail about this reset when he comes to wind up in an hour or so’s time.

From a rule of law and a secondary legislation scrutiny point of view, it is not the regulations themselves that cause the major part of the trouble but the stuff that comes with them—the guidance, circulars, statements and codes of practice on which judges seem to be tempted to make comments.

Let me give a very quick example. Members of the House will recall that, when Covid struck, we were all restricted on how much we could exercise. We could exercise once per day, as the House may recall. But, in fact, that was not in the law; it was in the guidance. The law—the regulation—said nothing about how often you could exercise; it was up to the guidance. In my humble view, courts and judges are unwise to allow themselves to be tempted to comment on matters of guidance. Inter alia, if judges comment, as many have, about the need to have regard to the guidance, I, as the man on the Clapham omnibus, will take that to mean that I had better do it. Therefore, guidance morphs into law and practice. This development, along with the deracination point I made earlier, comes close to offending the Bingham principle of the law having to be

“accessible … intelligible, clear and predictable”.

My last point is about another of Lord Bingham’s points:

“Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes”.


This is about the practical application of the rule of law and the issue of equality before the law referred to by my noble friend Lord Wolfson in his opening remarks, and indeed dealt with by my noble and learned friend Lord Bellamy.

I have been distressed many times in my career by the way in which big companies, rich men and, dare I say, dishonest men, can bend—note that I say “bend”, not “break”—the rule of law to their purposes. Let me give a simple example again. I have advised a small company. It had the capacity of inventiveness and found a way to create a better chiller mechanism—the chillers that you see in your supermarket. A big company bought six of them, not to sell them but to take them apart and re-engineer them so that the patent my client company thought it had was not broken. The advice that my client had was that actually the patent had been broken. A seminal meeting took place at which the big company said, “Fine, we’re going ahead and if you don’t like it, sue us—and by the way, before you start, our lawyers say it’ll be two years before this gets to court”.

That is game over—no small company has the resources, let alone the psychological stamina, to keep up with that pressure. Then we move on to individuals. An individual architect I knew had a client who asked for work to be done and then refused to pay any of the bill on some minor fault. When the case was coming to court, the client claimed he was ill, he changed his solicitor, the case was not ready, and the delays went on and on. Individuals, particularly individuals dealing with rich men, wish to bring a case to court so that their life can go on. They want to have closure and move on, and too often the law has not provided the right balance and the right protection to these people. Part of my vision of the rule of law is that they should be provided with that—they should be allowed to have that and the law should be there. The equality, in essence, is too often being broken.

I conclude where I began. Of course I am a strong supporter of the rule of law, but there are some areas where it needs persistent examination, to look at and consider the ways that we can make it real for everybody, including the people with me on the Clapham omnibus.

19:00

[Lord Kakkar (CB)]

My Lords, I join noble Lords in congratulating the noble and learned Baroness, Lady Smith of Cluny—the Advocate-General for Scotland —and the noble Baroness, Lady Laing of Elderslie, on their magnificent maiden speeches. They were truly great contributions to begin their long service in your Lordships’ House. I also congratulate the noble and learned Baroness on the thoughtful way in which she introduced this important debate.

As a surgeon by training I too am nervous about intervening in this debate, but I do so as chairman of the Judicial Appointments Commission between 2016 and 2022. The noble and learned Baroness, in mentioning the importance of an independent judiciary in securing the rule of law in our country, provided me with an opportunity to make some observations about one of the most important elements that underlies the fact that we have an independent judiciary in this country: it is that we enjoy an independent judicial appointment process. It was secured in the Constitutional Reform Act 2005, nearly 20 years ago. An important part of that legislation sets out the two statutory duties of the independent Judicial Appointments Commission: to appoint on merit individuals of good character, and to ensure diversity of application among those seeking judicial appointment. By large measure, that has been achieved over the past 20 years. We know that the principles that underlie independent judicial appointment include transparency, ensuring that there is no corruption in the judicial appointment process, appointments made on merit, and diversity of representation in the appointment process. Indeed, that appointment process can ultimately achieve diversity among the judiciary.

In pursuing independent judicial appointment, the Constitutional Reform Act rightly ensured that the levers that might be properly exercised to achieve diversity of appointment and representation in the judiciary were distributed across three main bodies: the Lord Chief Justice, the Lord Chancellor and the Judicial Appointments Commission. In so doing, it might be suggested that there was some limitation in bringing those three elements together to ensure that action could be taken that would drive forward achieving diversity among the different jurisdictions in England and Wales.

When one looks at how other common-law jurisdictions have performed and succeeded with regard to judicial appointment to secure independence and achieve diversity, one finds research undertaken a few years ago by the Judicial Appointments Commission and recently published. It established that we have the largest number of initiatives and give the greatest attention to achieving the important objective of diversity, but always in the context of putting at the very heart of our appointment process the need to appoint on merit. We also take every possible action to ensure that candidates are not put off by the appointment process but rather are encouraged to seek appointment and therefore to serve in the judiciary and to ensure, as a result of that, that we secure and maintain the confidence of the public in the judicial system and, indeed, our judges.

There are important challenges that face all this. One of the difficult questions that has been faced over recent years is criticism of judges. Criticism of judges for whatever reason has, as mentioned by the noble Lord, Lord Lilley, the potential to suggest that judicial appointment in our country should be conducted in a different way. Some commentators have suggested that rather than having an independent commission responsible for that independent process—indeed, the previous Administration made clear that they would not interfere in it—one of the ways to overcome the problem of the perception that the courts are some way distant from the will of Parliament, or indeed the will of the Executive, is for there to be greater parliamentary scrutiny of judicial appointments.

It is quite right that the appointment process is scrutinised. The chair of the Judicial Appointments Commission is obliged to appear before the Justice Select Committee in the House of Commons on a regular basis and before the Constitution Committee of your Lordships’ House to ensure that Parliament has the capacity to scrutinise that independent process and give a view on it. However, to move to the system in the United States where there is congressional involvement, with direct questioning of candidates appointed to senior judicial office, would be quite alien to our system and would draw Parliament into a position of direct influence in the appointment of an independent judiciary that would be very unhelpful and unwelcome.

Indeed, one might argue that if one day the House of Lords Appointments Commission, which I also had the privilege of chairing for a period of time, were to be put on a statutory basis and its criteria were to become statutory, ultimately there might be an opportunity for that statute and decisions based on those criteria to be challenged in the courts by way of judicial review. If that were the case, ultimately judges might start to determine who would sit in your Lordships’ House. That would be considered inappropriate, so these divisions are vital.

In answering, will the Attorney-General confirm, first, His Majesty’s Government’s commitment to independent judicial appointment as laid out in the Constitutional Reform Act 2005? Secondly, with regard to the important challenge pertaining to the diversity of the judiciary and the pace at which it is achieved—we always hear about it when there is a discussion about judicial appointment in the jurisdiction of England and Wales—can he confirm that, although there are well-meaning suggestions that quotas might be introduced and imposed on the appointment process to determine the proportion of judges appointed, the best way is to ensure that the system is fair and transparent and that every opportunity is taken to ensure that there are schemes and opportunities through exposure and other tools to develop those who wish to seek judicial appointment, so that they are properly prepared to participate successfully in the process and then serve on the Bench, in such a way that every appointment is considered to be made on the basis of merit and merit alone?

19:09

[Lord Banner (Con)]

My Lords, I add my welcome to the Advocate-General and congratulate her on a powerful and moving maiden speech. Having cut my teeth as a judicial assistant to Lord Rodger of Earlsferry when he was a Lord of Appeal in Ordinary of this House, I have particular respect for Scottish law officers—as well as English ones, of course—and wish her well in her new role. I also congratulate her fellow Scot, my noble friend Lady Laing, on her similarly excellent and moving maiden speech.

I also belatedly welcome to his place the Attorney-General, the noble and learned Lord, Lord Hermer. We are on opposite sides of this House now, but he may recall that in April 2007—can he believe it was that long ago?—we acted on the same side before the Appellate Committee of the House of Lords, including Lord Bingham presiding over the committee, in a case called Al-Skeini. We were led by one Keir Starmer QC—whatever happened to him? Our unison in that case, despite our differences of political stance in this House now, is a paradigm illustration of the cab rank rule of the Bar. That itself is a manifestation of the United Kingdom approach to equality before the law, which is in turn an important illustration of the rule of law.

These are not new concepts. My noble friend Lord Wolfson, with whom I am entirely in agreement, said that the concept of equality before the law goes back to Aristotle. In fact, it goes back at least 124 years prior to the reforms of Cleisthenes in 508 BC, pursuant to which isonomia—equality before the law—was the precursor to and foundation of the world’s first democracy, in Athens. Just as a foundation stone must be stable, constitutional principles need to be based on consensus if they are to have legitimacy as the ground rules of democracy, as my noble friend Lord Lilley said. In that context, I will make a few observations on the focus of much of today’s debate: the difference between the thin and thick versions of the rule of law.

The thin conception—which, broadly speaking, I favour—holds that the rule of law requires clear, prospective rules, known in advance, applied equally and fairly through proper procedures. It demands that no one is above the law, that justice is accessible and that state power is exercised through established legal frameworks. None of these fundamental tenets is or should be controversial. By contrast, the so-called thick conception is broadly understood to incorporate political considerations and subjective moral values into the definition of the rule of law. With respect, this approach risks conflating what the law is with what some might wish it to be. It risks judges and lawyers substituting their moral judgments for those of Parliament—a role for which they are neither equipped nor democratically mandated—and risks undermining legal certainty, which is a core component of the rule of law, properly understood.

The advantage of the thin conception lies in its clarity about the respective roles of Parliament and the judiciary, as Sir John Laws recognised in his book The Constitutional Balance, which has been quoted already. Parliament makes law, incorporating subjective values that it deems appropriate. Courts ensure that those laws are clear, prospective and properly applied. That division maintains democratic legitimacy, judicial authority and legal certainty.

Against those general principles, I will make three observations. The first is on legal risk in the context of the Attorney-General’s recent guidance. I suggest that it is not unconstitutional or contrary to the rule of law for the Government to take decisions which are at risk—indeed, at considerable risk—of legal challenge. To hold otherwise would be to sterilise government decision-making and neuter innovation. The rule of law requires the Government to respect successful challenges to their decisions but not to act shy of taking difficult or bold decisions for fear of such challenge, provided that there is a proper, reasonable basis for considering them to be lawful. To be fair, unlike some on this side of the House and some recent literature, I do not read the new Attorney-General’s guidance as necessarily being in conflict with what I have outlined. I welcome his clarification and see him nodding; to my mind, there is not much difference between a respectable legal view and a tenable one. They are different ways of saying essentially the same thing.

Secondly, I turn to international law. There is plainly a duty on this country and all countries to follow international agreements that they are signed up to. That duty is in the international law sphere, so to that extent there is an international rule of law. However, we must be mindful that in this country we apply a largely dualist constitutional approach to international law. It is normally for Parliament to legislate to give effect to international treaties so that the Government cannot, in using their treaty-signing powers, legislate through the back door by committing us, and therefore changing the law, without parliamentary consent. Therefore, treating international law as equating to constitutional principles and the rule of law domestically risks undermining that principle. It is important to be mindful of that.

Thirdly, in the context of the rule of law, there are fundamental rights—distinct from human rights as enshrined in the convention and the Human Rights Act. In principle, I take no issue with the concept of fundamental rights, properly understood, forming part of the rule of law. Obviously, that begs the question of what that means. I go back to what I said at the beginning of my speech: provided that those fundamental rights are uncontroversial and based on consensus, as opposed to politically subjective considerations, there ought not to be a problem. There is a problem when the concept of fundamental rights is used to wedge in political factors under the disguise of being part of the constitution.

In conclusion, if the rules of the game are slanted, the game cannot be fairly played.

19:16

[Baroness Whitaker (Lab)]

My Lords, after that brilliant maiden speech from my noble and learned friend Lady Smith of Cluny, who is not in her place at the moment, and so many learned speeches from eminent colleagues, including a notable one from the noble Baroness, Lady Laing of Elderslie, I speak with trepidation as a non-lawyer. I brave myself to do this because I believe law is for people, and lawyers are its distinguished engineers, if I may say so. I have two very simple points—I hope not embarrassingly simple: first, to repeat, the rule of law is essential to democracy, but democracy also requires a framework of human rights; secondly, this is a package that should be taught in schools as part of instilling that culture. I declare an interest as an advisory board member of the British Institute of Human Rights.

I want to try to explain my lay man’s view of the first point. Our democracy is based on our consent to various rules. We consent that their principles apply to all of us. They are the law. These conform to the norms of the time, and if we think the law has not caught up with changing norms we can influence or elect a Parliament which promises changes. If we think any of these rules have been broken to our detriment, we can have recourse to the law for a remedy. So far, so obvious. For that law to be fair, it must accord with a system that takes into account not only our rights but the rights of others. That is where responsibilities come in. I think that system is what our law calls human rights. When many years ago the Joint Committee on Human Rights, of which I was then a member, proposed a human rights commission, we decided it should be an Equality and Human Rights Commission so that it was clear that equal treatment was essential or the rights would not have general application; that is, they could not be fairly applied.

This makes a powerful culture, and it is one which exemplifies the generally accepted principles of fairness, respect for others and acknowledgment of their dignity. These are what we incorporated into our drafting of the international human rights instruments, where we played a leading part, and what the Labour Government incorporated into domestic law. They are recognised British values. Because they are generally accepted principles, they can form the basis of consent to or disagreement with the rules Parliament makes.

This culture has a particular importance now, which brings me to my second point. We live in a diverse country, with several religions and beliefs and multiple heritages. This is demonstrably an enrichment of our world, but it has also been interpreted to cause alienation, discrimination, prejudice, hostility and violence. We cannot say that any single one of our religions or beliefs or heritages should be the only basis of our rules because that would not be fair to others. So fairness—equality—demands that we find a way to tolerate difference. But we do still need a basis of accepted norms to test our consent, and I think the acceptable one is human rights.

This would be an important ingredient in our counterextremism strategy. It could help to erode the scepticism about democracy which has crept into our public discourse. The respected charity HOPE not hate has found that over a quarter of British citizens—27%—would choose

“having a strong and decisive leader who did not have to bother with parliament or elections”.

Among 18 to 24 year-olds this rises to 41%. From that we must surely conclude that our children need as much education in human rights, democracy and the rule of law as they do in their culture or their religion or belief. The education department is clear that the rule of law should be taught in schools as a “fundamental British value”, but can my noble and learned friend the Attorney-General urge his colleagues to get it packaged with democracy and human rights?

Finally, we should make sure we have the right texts which can engage, in particular, young people. We have no equivalent of Abraham Lincoln’s Gettysburg Address. There are some attractive books—Amnesty International has a picture book on human rights law, We Are All Born Free, which is eminently suitable for primary schools. But I have not seen an authoritative text which links the rule of law, democracy and human rights, suitable not only for schools but for new arrivals in this country and for citizenship tests. Does my noble and learned friend know of one? If not, what about a national competition to produce one?

19:22

[Lord Macdonald of River Glaven (CB)]

My Lords, I join others in welcoming the noble and learned Baroness, Lady Smith of Cluny, and congratulate her on both initiating this important debate and her wonderful maiden speech. I also welcome and congratulate the noble Baroness, Lady Laing of Elderslie, on her maiden speech. I will focus on one defining aspect of the rule of law: the requirement to secure a fair, open and timely means of adjudicating disputes between citizens and the state, typically in criminal justice.

I want to address this issue because I believe that the quality of its criminal justice speaks eloquently about a country’s attachment to the rule of law. In fact, our country has a proud record in this area, often held up as an example to the world, and followed in many other nations whose own systems of justice are correspondingly impressive—with incorruptible judges, fair trials, and associations of lawyers that are strong and independent. These are all British legacies—rule-of-law legacies.

Of course, there have been exceptions to the high quality of British justice but it is notable that when they have occurred we have usually recognised them as historic failures requiring a condign response. One thinks of particularly shameful executions in the days when hanging was a process of law: Ruth Ellis, David Bentley and Timothy Evans—all long since dead, but these travesties contributed a few years later to the eventual abolition of capital punishment.

The Maxwell Confait case imposed a terrible miscarriage of justice on two youths of impaired mental capacity who were bullied into confessing to a sadistic murder they had not committed. But it led, eventually, to the setting up of an independent prosecuting authority, the Crown Prosecution Service, in England and Wales, to take prosecution decision-making away from the police, and to provide a bulwark against such abuses in the future.

The dreadful miscarriages of justice in the 1970s—the Guildford Four, the Birmingham Six, the Maguire Seven and Judith Ward—all featuring a combination of false confessions, police misconduct, non-disclosure and unreliable expert testimonies, led eventually to the creation of the Criminal Cases Review Commission to pick up where justice had previously failed.

More generally, shaken baby syndrome, killings of their tormentors by women subjected to decades of abuse, and rape within marriage are all areas where lawyers, the courts and finally Governments used the living instruments of the criminal law to secure new routes to justice.

In the past, more often than not, we learned from our mistakes. But are we learning now? I pose the question because now our criminal justice system is facing a challenge that I think is broader and deeper than any individual miscarriages of justice, although it will surely bring those along in its wake.

This challenge has been growing for some years. Between 2010 and 2014, my old service, the Crown Prosecution Service, lost more than 30% of its budget and more than 30% of its front-line prosecutors. Imagine if the NHS lost 30% of its budget and 30% of its front-line doctors. Imagine if our schools had faced a similar catastrophe. During this period, legal aid rates were slashed, and they remain today much lower in real terms than they were many years ago.

These cuts have been mirrored across the criminal justice system—which was seen as an easy target by many Ministers—from the courts service to prisons and probation, which, like our trial processes, have never really recovered and are terribly understaffed, underfunded and suffering from poor morale.

Today, many court buildings are a decrepit disgrace, with broken heating, ramshackle furniture, worn-out carpets, and buckets in corridors and courtrooms to catch rainwater from leaking roofs and windows. This is a shabby message to send the public about the importance and dignity of our institutions of justice and about the pre-eminence its delivery should enjoy in our national life. To cap it all, chronic underfunding has led to a huge exodus from the ranks of criminal lawyers, from among solicitors of course, but particularly from the criminal Bar.

It is right to acknowledge that in the recent Budget, the Government allowed modest increases in spending for criminal justice, in place of feared further cuts, which would have been disastrous. This is very welcome and the Government are to be congratulated on it, particularly in relation to increases for the Crown Prosecution Service, which has been under impossible strain for many years, and which now receives an additional 7.5%.

The Probation Service, too, is in dire need of the extra officers it has been promised, although it will need many more. It is important to note that the bulk of the new money, £2.3 billion, will go on prison expansion and renewal. According to research conducted for the Bar Council, these single-digit increases come in the context that spending on justice decreased by no less than 22.4% in real terms between 2010 and 2023.

Furthermore, in October the Justice Secretary declined outright a request from the Lady Chief Justice that courts should return to sitting at greater capacity to deal with the disastrous backlogs in our courts, which are so corrosive of public justice. Instead of the 5,500 extra sitting days a year she asked for, the courts were given just 500. In response, the senior presiding judges wrote a letter to the Circuit Bench, which was immediately leaked. It said that

“the consequence … is that a very large number of trials and other hearings that are scheduled to be heard will now have to be rescheduled … probably for a lengthy period”.

This is precisely what has happened, at great human cost. I have spoken to circuit judges who, in the face of the Government prioritising relatively minor savings over the timely delivery of justice, are beside themselves with frustration. They are having to share one prosecuting barrister between several courtrooms because there are no others available. They are forced to adjourn cases again and again for want of defence counsel who no longer do criminal work because the rates and conditions are so poor. Resident judges are having to shutter several courtrooms in their Crown Court centres because of the Government’s decision to refuse the Lady Chief Justice’s request. As we conduct this debate, I am told that no less than 25% of the courtrooms in London’s largest and busiest Crown Court complex are locked and dark, doing justice for nobody. Meanwhile, the backlog in the Crown Court approaches 70,000 cases. Trials in the London area are being listed for 2027 or even in some cases 2028.

Some people in Britain used to sneer at other countries, particularly in Europe, for the length of time their criminal procedures took. Perhaps now they are sneering at us. To state the obvious, to postpone the arrival of justice by three or even four or five years after a crime has been committed destroys deterrence, makes sentencing a farce and adds the grossest insult to every true victim’s injury.

This cannot go on. Since the election, we have heard stirring words from the Prime Minister and the noble and learned Lord the Attorney-General about the United Kingdom’s adherence to the rule of law. Personally, I take great pleasure in these expressions of principle, which are consistent with our very best traditions. They have underpinned not only our individual rights and freedoms over the years, but also the success of our banking, trade and commerce. Indeed, they come from old colleagues whom I know well, like and have always held in high professional esteem at the Bar, as I still do.

However, we are now at a point where the faltering state of our criminal justice system is a reproach to words alone. They must be matched with action—action at a far greater scale than the recent Budget allowed, and which begins to deal with the deep systemic problems that lack of funding, lack of care and, in the end, plain old lack of interest have brought in recent years. Let the Government demonstrate a real adherence to the rule of law, beyond protestations of fealty that cost nothing, by making a new commitment to treat justice as a great and deserving public service without which no democracy can expect to retain the allegiance of its citizens.

19:32

[Lord Hacking (Lab)]

My Lords, with your Lordships’ leave, I would like to make a short intervention in the gap. I join all other Members of the House in congratulating our two maiden speakers on their excellent speeches—first, the noble Baroness, Lady Laing of Elderslie. As she told us, Elderslie was the birthplace of William Wallace. I mention not what happened to William Wallace when he came down to our realm. Secondly and most importantly, I congratulate my new noble and learned friend Lady Smith of Cluny. As a hereditary Peer, I am rather excited by her arrival, because my party is now being more respectful than it has hitherto been on hereditary Peers, with her joining her much-respected mother—the noble Baroness, Lady Smith of Gilmorehill—in this House on these Benches.

Speaking in the gap gives the advantage of being able to listen to some excellent speeches. I will not outline those speeches, because noble Lords have heard them all, but the noble Lord, Lord Wolfson, as usual made a very good speech. I did not agree with him about the International Criminal Court but, other than that, I agreed with everything he said. The noble Lord, Lord Thomas, made an absolutely splendid speech. I agreed with it and, if noble Lords were listening, they will have heard me saying “Hear, hear” quite strongly after he spoke. The noble Lord, Lord Faulks, gave another excellent speech, as did my noble friend Lord Bach. There were also others of high quality.

We have been discussing a difficult subject. Justice described the rule of law as,

“a phrase much used and little explained”.

We have assistance from Lord Bingham in his seminal work on the rule of law. Interestingly, he said:

“There is a significant disagreement initially on how to define the rule of law”,


and that:

“The rule of law has been referred to as a ‘wrapper’ that is placed around a bundle of constitutional principles”.


This leads us to the fourth century BC and not only to Aristotle but to Plato, as Aristotle was a student of Plato. These great Greek philosophers identified the rule of law as separate from the “rule of men”. That is a very interesting test to be applied if society has a different agenda from that of the men at law.

When my noble and learned friend the Attorney-General sums up, I urge him to stand stoically behind the European Court of Human Rights, notwithstanding the speech by the noble Lord, Lord Lilley, who was not exactly enthusiastic about it. I also ask my noble and learned friend to travel back with the noble Lords, Lord Wolfson and Lord Banner, and myself to the fourth century BC.

19:36

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I also beg the indulgence of the House. I did not want the day to pass without also paying tribute to my special friend, my noble and learned friend Lady Smith, who made a wonderful maiden speech. She will be a great Minister, I have absolutely no doubt. As the House will come to know, she is not just a brilliant lawyer and a person with a very sharp mind and great insight. She is also incredibly good fun company and I recommend that all noble Lords should get to know her.

I also welcome the noble Baroness, Lady Laing. She was a great inspiration when she was in the other place and to have her adorning this House is also a great pleasure.

I want to emphasise something I mentioned earlier today. The principles of the rule of law have been expounded in this wonderful debate, but the main thing to emphasise is that to have the confidence of the public—whether in this country or internationally—courts have to be seen to be just and fair and the law has to be applied in a way that is impartial. No one should enjoy impunity. No one is above the law. To repeat the words of the noble Lord, Lord Wolfson, wealth, power, status and privilege should in no way influence, for example, the issuing of warrants.

I was invited to be on the external evidence review panel for the International Criminal Court in relation to the warrants issued against Hamas, Prime Minister Netanyahu and Minister Gallant. It is not unusual for an independent panel to be invited to review evidence to see whether it reaches thresholds and to make sure external eyes are being applied. I was part of that panel, which comprised a number of very distinguished lawyers; I do not put myself in that category.

We were in the hands of the most remarkable man, Theodor Meron. He is a Holocaust survivor; his parents were murdered in the camps. He managed, as a child of 13, to be given a home with a Jewish family in Palestine. They brought him up. He went to the Hebrew University, then to Havard and then Cambridge. He went back and was a government lawyer of great esteem in Israel. He was then an Israeli ambassador and became the president of the court that tried the cases that came out of the horrors of Yugoslavia and that war. He is a great war crimes lawyer. Being in his company and being led by him was like being in a masterclass. The other lawyers were Adrian Fulford, a retired Lord Justice of Appeal from this country, Elizabeth Wilmshurst, a very distinguished government lawyer, Amal Clooney, Danny Friedman, myself and two very distinguished leading academics from the field of war crimes scholarship.

We reviewed the evidence, which is what I have spent my life doing—reviewing evidence to see whether it reaches the thresholds required at different stages in a case. I say in response to the noble Lord, Lord Wolfson, who is a colleague in the law, that this was not about equivalence. It was quite different. The warrants for the Hamas leaders were very different from the Israeli ones. They were individuals who had held real responsibility; these were not allegations about disproportionality of the conduct of the war—it was very specifically about the failure to provide humanitarian aid, water and so on, and the creation of starvation and malnutrition.

I just wanted the House to know that I had played that role. We cannot have impunity for certain people. There are no children of a lesser god. A very high percentage of children have died, and we have to make sure that there is a just process. That is what the International Criminal Court is there to provide.

19:40

[Lord Marks of Henley-on-Thames (LD)]

My Lords, this has been a very important debate on the rule of law. We have been very fortunate to be able to have it, and it has been a great credit to this House. It has also been a great privilege and pleasure to hear two fine maiden speeches. The noble and learned Baroness, Lady Smith of Cluny, delivered a maiden speech that has been unanimously acclaimed as a tour de force. She spoke clearly for the House and the Government, but also for Scotland, the devolution settlement and the Scotland Act. She also spoke movingly, if I may say so, about her family, her mother and her daughter Ella. In her new role, her dedicated commitment to our international obligations and the European Convention on Human Rights these Benches unstintingly support.

The noble Baroness, Lady Laing of Elderslie, another distinguished lawyer from Scotland, also gave us a brilliant maiden speech. She is a distinguished constitutionalist and parliamentarian of note, “with the customs and procedures of the House of Commons running through her veins”, as she put it. She reminded us of how democratic argument in Parliament also requires the honest and impartial application of a system of rules, another aspect of the rule of law, which is important in any democracy. Along with the speech of the noble and learned Lord, Lord Stewart of Dirleton, and the one that we are about to hear from the noble and learned Lord, Lord Keen of Elie, we are reminded of the importance of Scotland’s distinctive voice in this House on legal issues and the discussion of the devolution settlement and constitutional affairs in the United Kingdom.

As might have been expected, a majority of our speakers have been lawyers, but the voice of non-lawyers has also been important and significant in today’s debate. I found in particular the speech of the noble Lord, Lord Hodgson of Astley Abbotts, really helpful on equality before the law and making the rule of law real. Significantly, last week also saw the 103rd plenary meeting of the European Committee on Legal Co-operation, which approved a draft convention for the protection of the profession of lawyer. At a time when both the rule of law and lawyers’ independence are under threat, international co-operation to enable lawyers freely and independently to represent their clients is a vital component of the rule of law. As the Bar Council’s Manifesto for Justice put it:

“Recent and repeated public attacks on the legal profession and on the independence of the judiciary by politicians, coupled with negative rhetoric, has undermined the trust and confidence in our justice system—both at home and abroad”.


I ask the Minister and the Government for a commitment that the United Kingdom will take steps to ensure that this country plays its full part and signs up to this convention. That would recognise the importance of lawyers to the rule of law, stressed by the noble and learned Lord, Lord Bellamy.

However, we can be too defensive—and I say that for two reasons. The first is the positive. Our outstanding judges and our legal system as a whole maintain the highest reputation for independence, integrity, incorruptibility and impartiality—but increasing diversity is also crucial, as the noble Lord, Lord Kakkar, argued. The noble and learned Lord, Lord Bellamy, reminded us of Fuller’s principle:

“Be ye never so high, the law is above you”.


That is a principle that underlies all that we say. The result has been that our civil justice system enjoys an unparalleled reputation, particularly in the commercial world, as the noble Lord, Lord Wolfson of Tredegar, said, and our international standing and the earnings that it brings to this country are very high indeed.

In this connection, I mention the success of international arbitration; the passing of the Arbitration Bill through this House after an unwarranted glitch in the wash-up has advanced that cause. I ask the Government now to turn their attention to passing legislation on litigation funding to reverse the PACCAR decision, as was to have been done before the election, with all-party support, leaving the acknowledged need for regulation of funders to be considered by the Civil Justice Council later.

The second reason we can be too defensive is negative. Much of what has gone wrong in the fields of criminal justice, our penal system, access to justice and public respect for the law is our fault—the fault not just of lawyers but of politicians and government. I depart from those who maintain that a commitment to the rule of law does not extend to those political and societal features of our national life that generate the confidence of the public that the law is there for them and that the law will be fairly administered. I regard it as central that the concept of the rule of law is close to the theme of government by consent. That means trust in the police, the courts and the penal system, and trust that Governments and government agencies will apply the law fairly. It is about maintaining the compact between government and governed that keeps trust alive. As the noble and learned Lord, Lord Stewart of Dirleton put it, it is about our laws “enjoying the confidence of the governed”. Regrettably, I suggest that that confidence and that trust has been breaking down.

The rule of law on our streets and in our communities is not just about policing. In the criminal context, or the quasi-criminal context, the failure of the system over recent years to address increasing violence against women and girls has been lamentable. I welcome the commitment of the Government to halve violence against women and girls, and I welcome the 16 days of activism against gender-based violence that is currently under way. The public commitment to ending domestic abuse in particular has improved beyond recognition, but the real-life plight of women and children in their homes, at risk from those they live with, remains a sad reflection on the unreality of the rule of law for millions.

On the police, we in this House, and in politics in general—I suspect because of there being different Ministries—tend to separate out issues of criminal justice and policing. A mistake, I suggest. We cannot sort out issues of policing unless we sort out issues of criminal justice, and vice versa. The rule of law demands that we address the inability of police to tackle low-level crime; the ability of street gangs to operate unchecked in our communities; poor community relations and often still outright hostility between black communities and police; the courts’ inability to handle their case load, discussed by the noble Lord, Lord Macdonald of River Glaven; and the crisis in our prisons and probation service.

The rule of law is imperilled by a lack of public confidence that the law will be followed and enforced by the agents of the law. Certainly, much of the difficulty in maintaining trust in policing on our streets and in our communities, in our criminal justice system and in our prison and probation services stems from lack of resources.

Part of the challenge is to maintain and rebuild trust in the face of shortage of resources, but more is to restore the levels of funding that the noble Lord, Lord Macdonald, rightly argued the case for a little earlier. With all these resourcing issues, we need to persuade the Treasury to take a fresh and far less bunkered approach. Reoffending costs this country £18 billion a year and that is just the direct cost of reoffending. It does not cover the costs across the rest of national and local government: social services, education, housing, and lost tax revenues. The Treasury needs to work on developing a cross-government strategy on spend to save, and it is miles away from it yet.

I suggest that it is uncontroversial that the health and working of the courts and justice system are central to the rule of law. Continuing court backlogs are disgraceful. We have too few criminal courts that are working. We have a shortage of judges. That could be solved, partially, at least, by recruiting more assistant recorders and by increasing sitting hours and sitting days. It is wrong that there is an imposed cap on sitting days: 105,000 this year, down from 107,700 last year. There is a shortage of lawyers, caused in large part by a shortage of resources, because criminal barristers are unhappily unwilling—by which I mean they are unwilling, but that is because they cannot afford to be willing to accept the work.

The rule of law suffers real damage from delays, as well as from miscarriages of justice, as those tied up with cases that have not come on have their lives put on hold, as cases are abandoned, as witnesses withdraw their evidence, and as recollections inevitably dim. The main issue, again, is lack of resources. A secondary issue, though, is reluctance to innovate. We need smarter use of technology and cleverer ways of listing cases and ensuring that resources are properly used.

In the civil justice system, lack of accessibility is a central issue. The damage to access to justice and the availability of legal aid discussed by the noble Lord, Lord Bach, who has been a tireless campaigner for access to justice for many years, has been incalculable. The increase in access to justice for all our citizens is essential across the board. Legal aid is hardly available for housing cases, debt cases, social security cases, education, immigration or the interface between government and system, and where it is available, it is inadequate. The restriction of legal aid has largely destroyed access to justice, a case that has been eloquently argued by the noble and learned Lords, Lord Etherton and Lord Stewart of Dirleton, and the noble Lord, Lord Sikka. Protection of the most vulnerable was the paramount theme of the speech of the right reverend Prelate the Bishop of Norwich.

In all courts, we need to welcome innovation. I mentioned the greater use of technology, but we need to reduce unnecessary hearings and delays and lawyers must be astute not to be Luddite about this. We have also considered in this debate the ways in which our lawmaking here in Parliament and in government affects the rule of law. The noble and learned Baroness the Advocate-General spoke of the balance between the Executive and the legislature. I suggest that we need two major changes. First, there must be an end to skeleton Bills full of powers for Ministers to make law by secondary legislation. In this House, we had the pleasure and the privilege of hearing frequently from the late Lord Judge on the excessive grant of Henry VIII powers, as mentioned by the noble Baroness, Lady O’Loan.

Secondly, we need more pre-legislative scrutiny. I was a member of the committee that heard the pre-legislative scrutiny of the Defamation Act and, more recently, the Arbitration Bill, as well as the Special Committee. Those were Law Commission Bills, and the Law Commission does very thorough work. It has the benefit of a mass of expert input into proposals before any draft legislation is introduced, and the legislation that is introduced as a result of Law Commission work is generally the better for it. A wide range of Bills that come to this House receive thorough consultation, but I am afraid that many do not. That is an important point: when we are asked to legislate on Bills that come to us, frankly, half-digested, we cannot do a proper job.

A further point of great importance to the rule of law relates to the balance between the legislature and the Executive. As the noble and learned Lord, Lord Etherton, pointed out, the law must sustain a balance between officials and citizens. That means a clear commitment to the law being able to hold, and actually holding, government, local and national, to account. In this country, much of this has been guaranteed by judicial review—it may be no surprise that I do not necessarily agree with everything that fell from the noble Lord, Lord Lilley, on this. That goes particularly for human rights, the subject of the speech by the noble Baroness, Lady Whitaker. Yet under the last Government, we were frequently given the impression that they saw judges as getting in the way of democracy and that judicial review was a nuisance that ought to be curbed.

There is always a tendency in government to dislike judicial interference, and one can understand why there is a natural tension there. The account by the noble Lord, Lord Faulks, of his experience as a Minister was instructive, and although he and I do not always agree on the limits of judicial intervention, his account was, I suggest, balanced. Nevertheless, my view of judicial review is that it is one of the most important developments of the law over the last half-century. From these Benches, we will see this new Government’s approach to judicial review as a litmus test of their commitment to the rule of law.

Internationally, our standing depends on our respect for the rule of law. The last Government’s willingness to flout our international commitments relating to Northern Ireland and the Rwanda legislation, now thankfully abandoned, were lamentable departures from the rule of law and threats to our international reputation and standing, as argued by my noble friend Lord Thomas of Gresford and the noble Lady Baroness, Lady O’Loan. On these Benches, we are strongly encouraged by the noble and learned Baroness’s commitment to the Government’s compliance with our international obligations. In the wider context, respect for the rule of law at home is reflected on the world stage by our international commitments and our honouring those commitments, and we should never forget it.

19:57

[Lord Keen of Elie (Con)]

My Lords, first, I extend my welcome to the noble and learned Baroness, Lady Smith of Cluny, both to her place in this House and to the office of Advocate-General. I thank her for a thoughtful maiden speech. I also extend my welcome to my noble friend Lady Laing of Elderslie, who also made a very gentle and compelling maiden speech to this House.

As the noble and learned Baroness, Lady Smith, and I both began our careers at the Bar of Scotland, some anecdote might be appropriate, but that presents something of a generational challenge. However, I can notice this. I first encountered her when she was in about primary 4. This came about in 1984, when I was instructed to appear in the Court of Session to challenge the relevancy of a series of personal injury actions brought on behalf of a firm called Thompsons. I appeared in court, as a rather callow junior, to find that Thompsons had instructed, on the other part of the case, one John Smith MP. And so, we went to debate for a full day. As noble Lords might expect, he proved to be not only a formidable opponent but a most charming colleague. At the end of the day, he invited me to Cluny the following evening for drinks. I arrived there at about 7 pm to find a young lady handing out canapés and a number of formidable political and legal luminaries in the room, including the late Lord Stott, who was a neighbour and who had been Lord Advocate in Harold Wilson’s first Government.

After about half an hour, John’s wife came into the room and announced that Tam Dalyell MP was on the telephone. He was in a public telephone box in Yorkshire and required immediate advice on the law of secondary picketing. More observant Members of your Lordships’ House will recall that this was in the midst of the miners’ strike. John went to the telephone and returned rather quickly, at which point Lord Stott observed that his advice on the law of secondary picketing must have been rather concise, to which John answered, “My advice would have been longer, but Tam ran out of change”. Thus was our first meeting, although I will forgive the noble and learned Baroness if she does not recollect it in detail.

This debate has been rather like one of the opening rounds of the FA Cup; it seems to be 20-0. None of your Lordships came out in favour of tyranny or despotism. I will not say I am surprised by that, but of course there was a fundamental difference of view about what the rule of law actually is. Generally speaking, it fell between two areas—the thin approach to the rule of law, which embraces fundamental rights, and what was termed the thick approach to the rule of law, which is intended to embrace the wide spectrum of human rights, which are flexible, elastic, and sometimes politicised, as well as being in constant development. I come down on the side of the thin approach to the definition and understanding of human rights.

The rule of law is not a rule, and it is not a law. The rule of law is not the rule of a tolerant society as contrasted with the rule of an intolerant society. The rule of law is not the rule of democratic institutions as contrasted with the rule of undemocratic institutions—albeit that experience and history tell us that the rule of law is far more likely to be adhered to when we have democratic rather than undemocratic institutions of government.

The rule of law is a conceptual framework—some might say a principle—within which we can decide what kind of society we want to live in and what laws we wish to be subject to. The rule of law does not define that society and it does not determine those laws. What it tells us is that our society should be governed by law, and not by despotic whim; that such law should be certain and accessible; and that law should be applied equally and without favour to all persons and institutions within our society. For example, a society that determines by law that only persons over the age of 40 may vote in any election may adhere just as closely to the rule of law as a society that determines that anyone over the age of 16 will vote. A society that determines by law that a person may be subject to physical punishment may adhere just as closely to the rule of law as a society that absolutely rejects any such form of punishment. A breach of the laws made by society is not per se a breach of the rule of law. However, the rule of law requires that those who breach the law should be able to determine the existence of such law and be treated equally.

This is where I agree with the observations made by the noble Lords, Lord Sikka, Lord Bach, Lord Bellingham and Lord Hodgson, and the noble and learned Lord, Lord Etherton, that without access to justice there cannot be equality before the law.

In his work on the rule of law that has been referred to on a number of occasions, Lord Bingham described it as follows:

“The core of the existing principle is … that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts”.


To that extent, Lord Bingham’s definition of the rule of law is consistent with that of Dicey and Joseph Raz, but Lord Bingham went on to specify eight subcategories to his definition. This is where he appears to depart from both Dicey and Raz. For example, his subcategory 4 states:

“The law must afford adequate protection of … human rights”.


This is where we part between the thin approach to what is properly the rule of law and fundamental rights and the thicker approach which seeks to embrace the rather more flexible concept of human rights.

Of course, the law of any civilised society should afford protection to what are identified as human rights, but is that what we define as the rule of law? The law might expressly place limits on freedom of movement or freedom of expression, both of which may be regarded as human rights. Such a law, publicly and prospectively promulgated, is not per se a departure from the rule of law. If we attempt to merge a society’s present perception of human rights with the principle of the rule of law, then we are liable to create confusion rather than certainty. There, I agree with the noble Lord, Lord Verdirame, that while there is room for fundamental rights at the core of the rule of law, such as equality before the law, it cannot be expanded into the more politicised area—and always developing area—of what are termed human rights.

The Roman republic developed a sophisticated legal system and courts which made citizens of Rome subject to the law and not the rule of tyrants. At the same time, it embraced slavery and had a well-developed jurisprudence dealing with all aspects of slavery. Slavery was subject to the rule of law in the Roman republic and not the whim of individuals. Both master and slave were the subject of law. I give that example in order to emphasise that while the rule of law as properly understood and expressed by Aristotle is clear, it is not to be confused with our perception of or belief in human rights. We consider the concept of slavery to be abhorrent. It does not follow that a society which embraced slavery had abandoned the rule of law. The same essential principles apply at the level of international law between states. The relationship between states is generally governed by customary law, conventions and treaties consented to by the states. Such law should be certain and accessible. Such law should be applied equally between states.

Nation states adhere to their treaty obligations as a matter of principle and indeed political expediency. Nation states adhere to their obligations under international conventions on the understanding that, if they do not do so, they may be subject to sanction. However, a breach of a treaty or convention is not to be regarded simply as a departure from the rule of law.

I suggest that it is critical that we begin and end with a correct and certain understanding of what the rule of law is. When you seek to incorporate all aspects of human rights, as interpreted from time to time by courts and international tribunals, you are going to lose the certainty that is required in such an important definition. Indeed, such a step will, as the noble Lord, Lord Lilley, observed, lead eventually not to the to the rule of law but to the rule of lawyers.

So I have to take issue with the noble and learned Baroness, Lady Smith, on the suggestion that all human rights, the Human Rights Act and all human rights embraced by the Council of Europe are fundamental parts of the rule of law. That, I suggest, is to diminish them and confuse what the rule of law actually represents. Of course, human rights have an important place in our society and law, but they stand on their own feet and are not to be confused with the rule of law as such. I thank your Lordships for your attention.

20:10

[The Attorney-General (Lord Hermer) (Lab)]

My Lords, it is a great honour to close this important debate on one of the Government’s key priorities, which is upholding and reaffirming our commitment to the rule of law, and I thank noble Lords for their many contributions this evening. I spent too many years going to rule of law seminars, but I can genuinely say I have never experienced a debate of this quality. It has been a privilege.

I welcome my noble and learned friend Lady Smith, the Advocate-General for Scotland, and congratulate her on her maiden address to this House. With her wealth of experience, it is a privilege to serve with her as a law officer, and I know she will make an enormous contribution to this place. I also welcome the noble Baroness, Lady Laing, and congratulate her on her excellent maiden speech.

I echo the Advocate-General’s congratulations to the noble and learned Lord, Lord Keen, and the noble Lord, Lord Wolfson, on their appointments as shadow Advocate-General for Scotland and shadow Attorney-General respectively. I consider that not only does their party benefit from two such esteemed lawyers but this entire House benefits from the contributions that I know they are going to make. I look forward to working with them constructively on the many areas of shared concern—and to disagreeing with them respectfully on the many areas on which we are not going to agree.

I observe from the outset that we are privileged to be in a country where there can be a rule of law debate in which there are so many areas of agreement for so many of us. We all agree on the importance of the rule of law, and we agree with many of its essential tenets. Laws must be clear; they must be accessible; they must apply equally to each of us, and they must be adjudicated on by an independent judiciary—and we in this country all agree that we are blessed with an independent judiciary that is admired the world over.

There are areas on which we disagree, though, and, if I may say so, the noble and learned Lord, Lord Keen, identified those brilliantly. In the course of the time allotted, I shall try to respond to as many of the contributions by noble Lords as I can. I am going to leave until the end—and I shall make sure I have plenty of time—what the noble and learned Lord identified as the sharp divide in beliefs as to what the rule of law encompasses and what it does not, particularly human rights, democracy and international law.

Before addressing the subjects raised by noble Lords, perhaps I may begin by setting what the Government consider to be the important context: that there is a great deal of work to be done to restore this country’s reputation, internationally and domestically, on the rule of law. I was grateful for, and learned greatly from, the speeches of the noble Lords, Lord Thomas and Lord Marks, and the noble Baroness, Lady O’Loan, and their analysis of the degradation of rule of law standards over recent years.

I want the rule of law to be a project that we all work on together. As I have already said, there are many aspects of it on which we agree and I do not wish to descend to point-scoring, but it is important to set the context. At home, I suggest that respect for the rule of law was materially undermined by Covid. I do not just mean the point that has been raised by some noble Lords in respect of the acceleration of the use of delegated legislation, to which I will return, but it was also because people felt genuine, visceral anger that lawmakers were seen to be rulebreakers. That undermines a real fabric of the rule of law. It was also undermined, I respectfully suggest, by the failure of government to protect independent judges from shameful attacks in the media, and indeed then engaging in shadowboxing with the judiciary, with veiled threats to curtail judicial review and impose parliamentary scrutiny of judicial appointments.

Likewise, our reputation nose-dived internationally. As some noble Lords have raised, we legislated expressly to avoid a recently signed treaty obligation. It was followed by further legislation that was not simply a breach of international law but was contrary to our own constitutional principles, not least, under the Rwanda Act, to apply fiction in the courts—to mandate fiction rather than fact. I pay tribute to the noble Lord and the noble and learned Lord in respect of some of these aspects for taking principled stands.

All this was watched by friends overseas with surprise, pity and shame. Not only did it damage our reputation as a country, a proud champion of the rule of law, but it was potentially hugely damaging to our economy. All noble Lords will know that what international and domestic businesses want is the certainty and stability that come in countries that comply with international law. Why sign an investment treaty with a party that you know might ignore its terms when it gets a bit uncomfortable? Rule of law is paramount to the fabric of our society; it reflects who we are as a country, and it is very important to our economy.

I will start with access to justice, drawing on the speeches of the noble and learned Lords, Lord Etherton and Lord Stewart, and the noble Lords, Lord Marks and Lord Sikka. We obviously accept and endorse the principle that meaningful access to a court is a fundamental component of the rule of law. If people do not feel they can have access to a court to vindicate what they would see as their rights, and if people observe others getting away with crime, it unravels the very heart of our fabric of society and cuts to the quick of international law.

As a Government we have inherited a profound problem, raised not least in the speeches of the noble Lord, Lord Macdonald, drawing on his great experience as DPP, and the noble Lord, Lord Marks, and others. To give one example, it can now take years for a rape case to get to trial and the not infrequent but nevertheless shameful experience of many is that they can attend a courtroom—often, as described by the noble Lord, Lord Macdonald, falling apart—to be told that there is no prosecution counsel available and their case needs to be adjourned to another date. We would all agree that is an unacceptable state of affairs. Similarly, in civil, family and social welfare cases, meaningful access to justice is either sparse or non-existent.

Of course, the Lord Chancellor would wish, if she could, to change the entire position overnight to properly fund legal aid across the board, to rebuild our courts to the condition in which we would expect them to be, and to have unlimited sitting days in the Crown Court and in other courts and tribunals. But we have inherited an economic situation that simply does not permit us to wave that magic wand, however much we want to and however much we identify the need as urgent. What I can promise your Lordships’ House is that this is a priority for the Lord Chancellor. We understand the problem, we understand its importance from a rule of law perspective, and we are determined to deal with it. To respond to one point from the noble Lord, Lord Marks, let us take the scourge of violence against women and girls as an example. We want to do it in a multilayered and intelligent way. We want to tackle it not simply through the criminal justice system; we want to understand the causes of it; we want to work within education, so that girls and boys in schools have education about how they relate to each other, what consent means, et cetera, to fundamentally grasp the problems that currently blight society.

I will now deal very briefly with the question of my legal risk guidance, which was the subject of the concern of the noble Lord, Lord Faulks—and it is a pleasure to be once again debating with the noble Lord, albeit in a different environment. I will try to put some of the concerns to rest—and I hope I was able to do that by a nod during the speech of the noble Lord, Lord Banner. Any Government who aspire to comply with the rule of law will want to ensure that they attain the highest legal standards in their decision-making. I think that is a virtue that would be shared across the House. We are supported in that endeavour by a quite brilliant government legal service of dedicated and hard-working lawyers, and I have been anxious to ensure that they have the tools necessary to ensure that the Government stay within the confines of the law. There are going to be many areas, as the guidance expressly recognises, in which the law may be uncertain and a risk may need to be taken, and in the circumstances specified that is absolutely legitimate. I want to move away from a default position in which Ministers are told there is a respectable argument without being told that that means it is probably unlawful. The Government are determined to drive legal standards up.

In that light, to respond to the noble Baroness, Lady Laing, judicial review is not an inhibition on government. This Government are not afraid of taking decisions because they may be challenged in the courts. That will either improve our decision-making if we are challenged and found to be wrong or it will send out a clear message that we are not going to be intimidated by those bringing legal threats. Judicial review is an essential component of society to challenge decisions of government for people to be able to hold us to account.

I turn next to the speech of the noble Lord, Lord Lilley, and his analysis of the speech that I gave in the Bingham lecture. The noble Lord outlined concerns about the relationship between courts, lawyers and parliamentary sovereignty. I wish to put his concerns to one side. He may see that, in that speech, I was not addressing parliamentary sovereignty in the context that he outlined. I started with the completely unremarkable premise that Parliament is of course sovereign. In that passage of the speech—I will repeat it now—I was addressing precisely the point that Sir John Laws was making in his collection of essays, The Constitutional Balance. It is a given that Parliament is sovereign, but with that enormous power comes responsibility about how Parliament chooses to exercise that power in relationship to the courts and certainly in the Executive’s relationship to Parliament. It is about the constitutional balance that protects and enshrines our constitution.

I turn next to a further point made by the noble Lord, Lord Lilley, about the European convention and the Human Rights Act, which was not the point I made about parliamentary sovereignty. The Human Rights Act reflects the sovereignty of Parliament. It was passed by Parliament, and Parliament decided that it wanted to indirectly incorporate some convention rights. So I respectfully say that the argument that those convention rights are somehow irreconcilable with parliamentary sovereignty begins and ends there. Also, the impeachment is undermined by the careful balance that Parliament itself struck within the body of the Act. It does not empower courts to strike down primary legislation; it merely empowers courts to identify, by way of declarations of incompatibility, when that legislation is not convention rights compliant—it remains a matter for Parliament.

With respect, equally misplaced is the notion that somehow the rights that Parliament has chosen to place and protect as human rights are, in some way, foreign. That is simply not correct. Unsurprisingly for a convention that was drafted not least by David Maxwell Fyfe, the rights contained reflect long-standing traditional common-law rights in England, Wales, Scotland and Northern Ireland: habeas corpus in Article 5; freedom from torture in Article 3; and the right to privacy in Entick v Carrington. That was a nod to some of the lawyers in the House.

I turn to the role of lawyers and the rule of law, raised by the noble and learned Lord, Lord Bellamy. Any system—as the noble and learned Lord raised and as Lord Bingham described—depends, for its adherence to the rule of law, on those who work within it, striving to those very same principles. The noble and learned Lord identified the tension that can sometimes arise between them. One of the great joys of being Attorney-General is that I am the head of the Bar, a profession that has a very high ethical standard. There are very few professions in which you can be disbarred for misleading a court. That is not to say that it is perfect, and it is certainly not to say that appropriate lessons cannot be drawn from the various inquiries that touch on legal behaviour. This Government, like any Government, will want to learn those lessons; they will see the report on Horizon, as well as other reports, and seek to learn their lessons.

There is the flip side—a point raised by the noble Lords, Lord Banner and Lord Marks—that lawyers must be protected in going about their job. The essence of the independent Bar and the independent solicitors’ profession is that we represent our clients without fear or favour. That is a hallmark, and lawyers must be protected.

I will deal very briefly with judicial independence. The Lord Chancellor is a champion of judicial independence; she will stand up for it fearlessly. The Judicial Appointments Commission—I declare an interest in having been appointed a deputy High Court judge through it—is an essential part of that. There are other constitutional frameworks overseas in which there is a different system. They are absolutely not better systems, but they can often be distinguished and explained because, in those jurisdictions, courts often have a power, which courts do not have here, to override what we would describe as primary legislation.

I will very briefly touch on the point about culture and the rule of law that the noble Baroness, Lady Whitaker, raised. We see it as a cross-party venture to work together to ingrain the core rule-of-law values on which we agree in society. The noble Baroness asked for some examples of what can be done in education and for suggestions of books or a national competition. I went to Spellow Library after the riots in Liverpool and chatted to children who had volunteered to help clear up. I gave them some books on the rule of law and discussed it with them. In addition to To Kill a Mockingbird for the teenagers and Equal to Everything: Judge Brenda and the Supreme Court for the children, I also gave them a copy of The Rule of Law by Lord Bingham.

I will be as quick as I possibly can on thin and thick conceptions, if your Lordships will indulge me for an extra minute or two. The noble Lords, Lord Wolfson, Lord Verdirame, Lord Faulks and Lord Lilley, all advocate for the thin conception of a rule of law. The noble Lord, Lord Wolfson, describes Lord Bingham as if he were an outlier. I suggest that the contrary is the case: Lord Bingham’s conception—that human rights, democracy and international law are integral parts of what a rule of law means—has been accepted as mainstream not only domestically but, increasingly, internationally. They also reflect a long Conservative tradition, from Churchill to Maxwell Fyfe through to great Attorneys-General past such as Dominic Grieve.

In responding to the challenge from the noble and learned Lord, Lord Keen, I will identify why a thick conception of the rule of law is the one that is true to rule-of-law values. It draws upon an analogy given by the noble and learned Lord, Lord Stewart, of apartheid in South Africa. Under apartheid, the laws were very clear. There was certainty as to the contents of those laws. Those laws were passed by a Parliament; those laws were adjudicated upon by an independent judiciary, including some brilliant lawyers who afterwards sat in your Lordships’ House—one still does. That, I suggest, was not a country that operated according to the rule of law. That was rule by law. As the right reverend Prelate the Bishop of Norwich set out in his brilliant and insightful speech, fundamental human rights have to be an integral part of what we understand to be the rule of law as distinct from ruled by laws.

Fundamental human rights reflect what underlies rules and what underlies our systems: our belief in the fundamental dignity of our fellow human being and the need for laws to protect it. Laws have to have a quality that protects those fundamental rights in order to properly comply with what we would understand to be a society truly ruled by law. So too with democracy and the consent of those who are governed—if we are to be bound by people’s laws, we need a say, and a proper say. That is why I endorse your Lordships’ comments about the importance of secondary legislation being applied when appropriate, and that is why I have taken steps to produce a toolkit for policymakers to try to raise standards.

Finally, if your Lordships will indulge me, I will deal with international law very briefly. Just like domestic law, international law is not perfect, but just like domestic law, we have an important role to play in its shaping. Certainly, this country has played an enormous role in its creation, and so too do we in its shaping in the halls of the United Nations through the Sixth Committee, through the International Law Commission, and through our work through the Foreign Secretary, moulding and shaping international law.

Compliance with international law also benefits us all. It is a source of pride for this country, it makes us a safer and more secure world, and, as I have already said, it is necessary to provide a foundation for growth in this country. We should all be immensely proud of it, and this Government will seek at every turn to comply with our obligations.

There is little time in this job for reading things I used to once read on weekends, but I was struck by reading the words of the great constitutional scholar Professor Tribe over the weekend:

“By all means valorize the rule of law and the integrity of our legal institutions, including the traditions and customs that provide the guardrails beyond those of our inevitably imperfect constitutional design. But never forget that law can oppress as easily as it can liberate and that it is the content and spirit of our laws and the character of those we entrust with enacting and enforcing them that makes fidelity to law so central to our experiment in self-government”.


The Government accept that challenge.

Motion agreed.

House adjourned at 8.35 pm.