Rule of Law

Lord Thomas of Gresford Excerpts

Tuesday 26th November 2024 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, it was a great pleasure to hear the thoughtful speech of the noble and learned Baroness, Lady Smith of Cluny, who so much adds to the lustre of her family. She referred to her parents; the moment I walked out of court into the Old Bailey on an afternoon in May 1994 is fixed and etched in my memory. On a newspaper board opposite the entrance, I saw the sad headlines relating to her father and I was shocked and dismayed, even though I was not a member of his party. I wish her every success in this Chamber and in her new position, which her own talents and hard work have so richly deserved.

The assault on the rule of law started rather badly in September 2019, when the Government of the day’s unlawful attempt to prorogue Parliament was halted by the Supreme Court. But it was the bold attempt of Brandon Lewis, Secretary of State for Northern Ireland, in September 2020, to legislate in breach of international obligations that brought the rule of law into even sharper focus. He told the House of Commons that the internal market Bill broke

“international law in a very specific and limited way”.—[Official Report, Commons, 8/9/20; col. 509.]

The Constitution Committee concluded in its 17th report of that Session:

“Adherence to the rule of law is not negotiable … A government that brandishes the threat of breaching its international obligations, even in ‘specific and limited’ circumstances, is one that undermines the rule of law”.


This debacle was followed by the Northern Ireland Protocol Bill, which permitted the breach, by secondary legislation, of the United Kingdom’s international obligations as agreed in the Northern Ireland protocol. The Constitution Committee found that these were two conscious attempts to breach the United Kingdom’s international obligations, contravening Lord Bingham’s eighth principle that

“the rule of law requires compliance by the state with its obligations in international law”.

The Cabinet Office set out HMG’s legal position in 2020. The then Government argued that treaty obligations become binding only to the extent that they are enshrined as a matter of domestic law. It was claimed that there was nothing unlawful in Parliament passing legislation that was in breach of the United Kingdom’s obligations. The Constitution Committee rejected that argument in its ninth report of 2022-23, to which I was a party, stating:

“Whatever Parliament decides to do does not affect whether the state is in breach of international law … A treaty, once agreed, binds the state … the responsibility of the Government to honour the state’s international obligations requires it to refrain from inviting Parliament to legislate knowingly contrary to the United Kingdom’s international obligations”.


Parliamentary sovereignty is the foundation of our domestic law, but it is not the overarching, unbridled principle that is commonly claimed by political parties when they are in power. It is subject to constitutional principles: in particular, to the principle that a Government should not legislate to break international law. Indeed, the Ministerial Code is explicit in paragraph 1.6, which refers to

“the overarching duty on ministers to comply with the law, including international law and treaty obligations”.

The Rwanda Bill was another attempt to violate our international obligations, specifically the refugee conventions and the European Convention on Human Rights. The proposal was to bar access by asylum seekers to the courts of this country, contrary to Lord Bingham’s fifth principle of the rule of law and Article 6(1) of the European Convention on Human Rights.

The granting of an interim order by the European Court of Human Rights, which in effect prevented the removal of asylum seekers to Rwanda, had the originalists leaping snarling from their den. Originalists are those who deny that the European convention is a living instrument. The majority view is that the convention should develop through case law: modern remedies for modern problems. Society changes. Attitudes towards the status of women or towards gay rights have changed in the seven decades that have followed the signing of the convention. In the area with which I have a particular concern, military justice, the case of Findlay in the European Court set in train changes to the scope and procedures of military law in a way that the 1950 founders could never have foreseen.

As for the European Court’s interim order in the Rwanda case, it was in the 1970s that rules were made by the court, specifically rule 34, which required member states not to hinder the rights of an individual to make applications for relief to the court. You may well think that whisking Africans off on a one-way ticket to Rwanda would be something of a hindrance to such an application, and indeed a judge of the court, faced with an application by an asylum seeker, made an interim order under rule 39 to delay the flight. In due course, the UK Supreme Court ruled the proposed dispatch of asylum seekers to Rwanda to be unlawful and further European court proceedings were unnecessary.

“These European court rules were made in the ‘70s”—so wail the originalists. The scope of the European Convention on Human Rights, they say, should be confined to the powers explicitly agreed in 1950. “Do not look beyond the 1950 text, as illustrated by the preparatory papers of the time”. This argument was expounded by Professor Ekins of Oxford University in the unlikely forum of the Atkin Lecture in the Reform Club, of all places, and it has been supported by the noble Lord, Lord Wolfson of Tredegar.

Originalism is a right-wing doctrine developed in the past 40 or 50 years in the United States of America. It has found its way into the United States Supreme Court. It will not surprise noble Lords that four of the six Supreme Court justices who granted full presidential immunity to Donald Trump recently are self-confessed originalists. They believe that the US constitution should be construed as originally drafted and understood by the Founders in 1789. But somehow I doubt that Alexander Hamilton, Benjamin Franklin, Thomas Jefferson and the rest of them would have been natural Trumpsters in their aspirations.

This odd, fossilising theory of interpretation has crept across the Atlantic to this country, probably through the secret funders of the Tufton Street think tanks. That may be the reason why the recent Conservative manifesto referred to the European court as a “foreign court”—a phrase repeatedly on the lips of Rishi Sunak during the recent campaign. It is a sad withdrawal from the ideals promoted, paradoxically in 1950, by the Conservative Sir David Maxwell Fyfe, later Lord Chancellor and the Earl of Kilmuir, and developed by British judges of the court.

My final point is that, if parliamentary sovereignty and executive government are to be subject to the rule of law, an independent judiciary is essential. Your Lordships may not fully realise the necessity of an impartial court, but I have had the experience of appearing in a foreign court in an action brought against my client by the premier of the country in question. My apprehension, whether right or wrong, that no submission I made could possibly succeed before that court induced feelings of utter frustration. I was wasting my time. Subsequently, success in the Privy Council in a linked case on behalf of the same client was followed within three months by the withdrawal of the country concerned from the jurisdiction of the Judicial Committee for ever. That Government said there was no connection between the two things.

I look forward eagerly to a commitment by this Government that the United Kingdom will observe the rule of law in all circumstances, that the independence of the judiciary will be properly defended, that Parliament will no more be invited to break international laws and treaty obligations—even in “a very specific and limited way”—and that they will maintain our good name as a country abiding by the rule of law in an increasingly lawless world.