Rule of Law

Lord Verdirame Excerpts

Tuesday 26th November 2024 Lords Chamber

[Lord Verdirame (Non-Afl)]

My Lords, I too congratulate the noble and learned Baroness, Lady Smith of Cluny, on her excellent opening remarks; I wish her every success in her new role. With the noble and learned Lord the Attorney-General and the Solicitor-General in the other place, they make a very impressive trio of law officers. I also congratulate the noble Baroness, Lady Laing of Elderslie, on her very gracious and thoughtful speech.

I will focus my remarks on the meaning of the expression “the rule of law” and on international law. In his essay, “The Rule of Law and Its Virtue”, Joseph Raz began with a warning:

“Not uncommonly when a political ideal captures the imagination of large numbers of people its name becomes a slogan used by supporters of ideals which bear little or no relation to the one it originally designated”.


Raz went on to argue for what is sometimes described as the thin conception of the rule of law. It was thin, not because he did not believe in other values such as democracy, human rights and international law— I think that a number of noble Lords here who knew him will confirm that he was no conservative—but, on the contrary, because he wanted to set forth a viable and coherent conception of the rule of law that did not conflate the rule of law and the rule of good law. The latter, as he put it, would require “a complete social philosophy”.

Inflating the concept of the rule of law to accommodate other ideals, wishes and causes, however worthy, is a bad idea for at least two reasons. First, we will not be able to agree on it, as today’s debate shows. The thicker the conception of the rule of law, the more politicised the rule of law will become. The scope and interpretation of some fundamental rights, and the ways in which conflicts between rights should be resolved, are an example. Those issues will remain contested. I agree with the noble and learned Lord, Lord Etherton, that a fair trial is the obvious exception because it is intertwined with the rule of law.

Secondly, the key features of the rule of law are legal certainty, clarity and predictability—that is the very first principle of the rule of law, according to Lord Bingham. By expanding the rule of law to include democracy—a list of fundamental rights that is itself unsettled and ever expanding—as well as every rule of international law, we end up with an all-encompassing, panoptic concept of the rule of law that itself becomes a source of unclarity, uncertainty and unpredictability; in other words, we end up with a conception of the rule of law that does not advance the rule of law. As anticipated by Raz, when the concept of the rule of law is bloated in this way, there is also a risk that it becomes a perfunctory slogan.

As far as international law is concerned, it has been the long-standing policy of successive British Governments that Britain complies with its obligations under international law and promotes respect for international law globally. This commitment has historically been accompanied by a well-informed and savvy understanding of international law, of how it is created and of the fundamental differences between international law and national law. The noble Lord, Lord Faulks, referred to the new guidance from the Attorney-General on legal risk; I am less concerned than the noble Lord, but I would welcome a discussion on that document because it is very important and useful.

The two main sources of international law—treaties and custom—have no equivalent in domestic law. Critics of international law have often argued that international law does not have the clarity and certainty that the rule of law requires. They say in particular that customary international law is too vague. Customary international law is defined by two elements, each of which is linked to the state. It is formed through the practice and the views of states—states create custom. For that reason, states that support the rule of law, such as Britain, have a responsibility to be transparent and clear about what they consider to be the rules of customary international law. This is one of the ways in which, historically, Britain has ensured the progress of international law. It was one of the states that published the most complete records of its practice and statements on its position on customary international law. One of the most wonderful books in international law is Law Officers’ Opinions to the Foreign Office, 1793-1860, edited by Clive Parry. It shows how Britain contributed to the formation and development of international law more than perhaps any other state. It also shows what made the reputation of Britain in international law. In the 19th century, when law officers were asked what their views were on the right to stop and search vessels on the high seas in certain circumstances, they always had a clear answer.

This takes me to a very topical question, on which I have written a paper with Professor Ekins: whether, under customary international law, there is a rule that requires the United Kingdom to respect the immunity of a Head of Government of a state that is not a party to the ICC. I believe the answer to be clear: I do not think that there is a conflict between customary international law and domestic law. The position under customary international law is clear, and it is reflected in Article 98.1 of the statute. However, it is important for us to know what the Government’s position is. To invoke the rule of law as a reason for not stating their position on this or other matters is, with respect, rule of law double-speak.

In conclusion, I will make three points that I hope can help us to rebuild consensus on the rule of law. First, we must proceed on the basis of a meaning of the rule of law that is coherent and enjoys wide support across different political views. We cannot have the Government of the thin conception of the rule of law followed by the Government of the thick conception of the rule of law. We cannot use the rule of law as a vehicle for imposing a particular political wish list, or a particular philosophical view, on others.

Secondly, no political party owns the rule of law. In an adversarial political system, Newton’s Third Law of Motion applies:

“For every action, there is an equal and opposite reaction”.


If one political side claims ownership of the rule of law—or of human rights or international law—someone on the other side will disown it, and we will all be worse off because of it.

Thirdly, we have to protect the rule of law from demagogues. That was the focus of the Attorney-General’s very well-chosen theme for his speech at the Bingham Centre. I agree on the importance of this objective, but I take issue slightly with a comment that was reported in the press. To be fair, it was probably off the cuff, but it was reported quite widely. He said that

“we need to be militant about our belief in the rule of law … We should be shouting it from the rooftops”.

It is precisely because I am concerned about populism—as he is—that I am wary of metaphors. Populism thrives on the effective use of metaphors to mobilise the masses behind certain emotional causes. At a time of great political division, such as we are going through now, there is no shortage of people in our society who want to scream slogans on megaphones, bang pots and climb lamp posts—we see them on the streets of London every Saturday—but that is not what lawyers do. We should not be the ones who try to climb higher or scream louder—although, unfortunately, looking at social media, there are lawyers these days who seem to think that this is precisely our role. Our social responsibility is to resist these populist trends. We listen to and respect each other because we value civil disagreement. We only ever seek to persuade through argument. These are the best traditions and habits of the legal professions, and they are crucial to the rule of law.