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.
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.