Rule of Law

Lord Faulks Excerpts

Tuesday 26th November 2024 Lords Chamber

[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.