Holding the Line Against Tyranny and Anarchy (Constitution Committee Report)

Lord Beith Excerpts

Thursday 9th July 2026 Lords Chamber

[Lord Beith (LD)]

My Lords, there has been unanimity around this Chamber in welcoming the fact that we are debating the rule of law in the week in which we honour and commemorate a great upholder of the rule of law, Lord Mackay of Clashfern. There is also a degree of unity around the Chamber in welcoming the report and the work and leadership of the noble Lord, Lord Strathclyde, who has enabled us as a committee to produce such a welcomed report.

What is the rule of law as it is understood in the British constitution? It is not the rule of lawyers and it is not the takeover by judges of the policy-making role of political leadership. It is, primarily, the mechanism by which the use and misuse of power are regulated. That applies to the use of power by the state but also to the use of power by commercial businesses on which we rely to deliver public services, and sometimes to protect us from aggressive neighbours. We expect a lot from it. As Lord Sumption has put it,

“the rule of law is a body of principles without which we cannot exist as a society because, in their absence, human relations are nothing more than a contest in the deployment of power”.

Although the rule of law helps us to safeguard democracy, the two concepts are not the same. It is at least theoretically possible for the rule of law to operate in a society in which laws are not made democratically. We had that with the suffragettes, for example. We had the rule of law for centuries before most people could stand for election or vote. If laws are not democratically or fairly made, the rule of law can become the enforcement arm of the oppressor.

However, there are those, particularly some in political leaderships, who see the rule of law as an impediment to the pursuit of political objectives. They resent and rail against judicial review of executive action, which they see as inhibiting the rapid implementation of policies they believe they have a democratic authority to pursue. But judicial review of executive action does not turn the judge into a policymaker; it allows the judge to determine whether the Executive have the legal power to do what they propose, whether they have followed accepted procedure and whether it is manifestly irrational.

In considering the rule of law, it is important to recognise that it sits alongside the doctrine of parliamentary sovereignty. Parliament is free to make whatever laws it chooses, and no Parliament can bind its successors. We do not have a written and entrenched constitution. The day job of the committee, as I sometimes call it, is to look at all legislation to see what constitutional implications it has, and to alert the House to dangers and constitutional threats such as those explained by the noble Lord, Lord Carter, in the way legislation is constructed.

The belief that no one should be above the law or beyond its scope is fundamental to the way British people understand our democracy. I say that no one should be above the law because people are far from confident that that is true in practice. We saw that during the Covid pandemic, when the public were being instructed not to visit their dying relatives in care homes, while those who issued these instructions were having parties in Downing Street. “There’s one law for them and there’s one for us”, was the cry. The eventual fining of Ministers and officials for the parties was a needed corrective.

There was further damage to the rule of law during Covid, because Ministers and officials made statements which confused legal prohibitions with mere guidance, leading the police to impose fixed-penalty fines which were later overturned when they came before the courts. The concept of the rule of law suddenly acquired visible significance in the lives of citizens. I suggest that President Trump’s intervention in the matter of a red card being suspended illustrates how suddenly an issue will present the fact that observing rules and making sure that they apply to everybody is fundamental to the way our democracy works.

Governments need the rule of law. Often, they find it irksome or inconvenient, but without it, governance would become impossible. In words used by the committee, the rule of law is holding the line against tyranny and anarchy. Governments ought to be more careful with their actions and their words to support, rather than undermine, the rule of law, even unintentionally.

Too often Governments see laws as a way of signalling disapproval of actions or behaviour. Law defines penalties and punishments for failures to obey it; it is not a press release or a policy statement. Yet new laws are brought before Parliament on the basis that the Government must be seen to be doing something about an acknowledged problem. Even when there is no prospect that the new law will usefully add to the substantial amount of law already on the statute book, Governments say that “this law will send a powerful signal”. That is not what laws are for; they are to determine conduct and penalise people who do not carry out that conduct.

The rule of law is not simply a legal principle; it is a culture. It depends on acceptance that we are each obliged to obey the law, and an expectation that other people will do so. When one drives a car along the road or, as the noble Lord, Lord Shinkwin, pointed out, when one goes in a wheelchair down the street, it is a reasonable expectation that all but a few of the other drivers and pedestrians will keep to the law and observe the Highway Code. Otherwise, I would not want to risk getting behind the wheel or crossing the street. For most people, most of the time, it is not fear of getting a legal penalty which governs their behaviour; it is a culture in which we expect the law largely to be kept.

The Constitution Committee sets out in detail, which has been explained by noble Lords in this debate, the various principles involved in the rule of law. It is easy to see ways in which we fall short of these principles. Delays and backlogs in the criminal courts are appalling, and access to civil justice is restricted by delays and by the cost. Yet we have genuinely independent judges who are unbiased and not subject to control by the Executive.

We have complex ways of making the law—statute law, regulations, statutory guidance and common law—and that complexity makes it difficult and costly for individual citizens, so people depend on the voluntary sector of law centres and Citizens Advice, which cannot meet all the demands. We may have to develop artificial intelligence tools to help fill this gap. AI is already widely used to process routine legal work. Early legal advice can often avoid much higher costs in the courts and should be a priority.

What can the Government do to protect the rule of law? They should defend it and the judges who carry it out; they should educate people about it in ways which have been put forward in this debate; they should improve access to the law; and they should make better and preferably fewer laws.