Parliament: Freedom of Speech and the Rule of Law

Lord Thomas of Cwmgiedd Excerpts

Thursday 23rd May 2019 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

I too welcome the pleasure of having this debate on such an important topic and congratulate my noble and learned friend Lord Brown of Eaton-under-Heywood on obtaining it. I do not wish to speak at all about the particular matter that has given rise to this, nor about the sub judice rule as that has already been explained. I wish to deal with two much broader issues.

The first is the interdependent relationship between the three arms of the state—Parliament, the executive Government and the judiciary. It is clear that the state can function properly only if there is a clear understanding of that principle. Although each branch is independent of the others, they are interdependent. Interdependence requires: that there must be a clear understanding by each branch of the state of the constitutional functions and responsibilities of the other branches; that each branch must support the others when they are carrying out the functions and responsibilities that the constitution has assigned to them; and that no branch should interfere in the proper working and functions of the other branches, which have been assigned those responsibilities by the constitution. Each must show a proper and mutual respect. It seems to me that these requirements are applicable to all circumstances where issues arise, not merely to the subject of today’s debate.

I fear, however, that there is much less understanding of the roles of the respective branches of the constitution. I fear that people do not properly understand the role of the judiciary; nor do judges always understand the role of Parliament. This is an unfortunate state of affairs and today is not the time to debate it, but it seems evident to me that there has been a diminution in the discourse necessary to ensure the relationships work. Where there is room for concern that one branch of the state may have overstepped its position or not properly carried out its functions in the views of those in another branch of the state, there should be dialogue before action is taken that interferes with the proper functioning of the other branch of the state. I cannot overemphasise the importance of such dialogue.

That takes me to the second point I wanted to deal with, which is the upholding of the rule of law. Each branch of the state has a duty to uphold the rule of law. The constitution has assigned to the judiciary the primary function of upholding the rule of law, particularly where there are disputes between two individuals or between an individual and the state. I hope that for the future it will be generally understood that, although of course the fundamental right of freedom of speech in Parliament is in no way undermined, the principles of interdependence to which I have referred should lead to the clear recognition that, when a decision of the courts relates to a particular case, the issues are matters for the judicial branch of the state and have been assigned by our constitution to that branch. The decision of the judicial branch should be respected as an essential prerequisite of upholding the rule of law and the effect of the decision should not be nullified by another branch of the state.

It seems to me of vital importance that we set out the principles much more clearly, and I hope that we can find a means of doing that. I particularly welcome the suggestions that have been made. We must be sure that each branch of the state understands and respects the principles of interdependence. We must do all that we can to minimise the risk—for we can do no more than minimise the risk—of one branch of the state failing to respect the position of the other branches of the state in relation to a particular matter. We need principles and, above all, we need dialogue. I hope in that way that each part of the state can contribute to the upholding of the rule of law.