Rule of Law

Lord Etherton Excerpts

Tuesday 26th November 2024 Lords Chamber

[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.