Rule of Law

Lord Wolfson of Tredegar Excerpts

Tuesday 26th November 2024 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, it is a privilege and a pleasure to begin by welcoming the noble and learned Baroness, Lady Smith of Cluny, the Advocate-General, to her place, and to congratulate her on a very fine maiden speech. Given her illustrious background, both personal and professional, we expected a great deal from her—but she met and indeed exceeded those expectations.

As to her personal background, it must have been a particular pleasure for the Advocate-General to be introduced into this House by her mother—or should I say kinswoman?—the noble Baroness, Lady Smith of Gilmorehill. It is an underappreciated virtue of the new Labour form of the hereditary peerage that both generations can sit here simultaneously.

However, in light of her professional background, the truth is that the Advocate-General is here very much on her own merits. I did not know her, as we practise in different areas of the law and indeed in different jurisdictions, but I can confirm to the House that she has a most impressive CV and—other members of this Government should take note—one which is 100% accurate and required no embellishment. I therefore look forward to her future contributions in this House, notwithstanding our political differences.

When it comes to the rule of law, one is tempted to say that there are no such differences and we are all on the same side. I do not expect anyone in this debate—given the quality of the list, I too look forward to many insightful speeches—to speak against the rule of law. None of us wants to live in a society governed by despotic whim or by mob rule.

In opening for the Opposition Benches, I could give a speech which would be the legal equivalent of motherhood and apple pie. It is an easy speech to give. It would trace the rule of law not only to the work of Dicey in the 19th century and then to the work of Locke in the 17th but as far back as the writings of Aristotle, who wrote that

“it is more proper that law should govern than any one of the citizens”.

It would explain that, far from being some abstract constitutional principle—because that is what the rule of law is; it is not a law but a foundational constitutional principle—the rule of law underpins not only our politics and civil society but our commercial endeavours too. If the huge glass panels of the City’s skyscrapers are held together by invisible building materials, the financial markets and stock and other exchanges are held together by the rule of law.

In my own practice as a commercial lawyer— I declare the obvious interest—the rule of law is one of the reasons why litigants and commercial parties from all over the world choose to have their disputes determined in London. They come here not only because, as the Advocate-General said, our judges are independent and of unimpeachable integrity—though they are. They come here not only because our legal profession is of the highest calibre—though it is. They come here not only because English law, and perhaps also Scots law, has kept pace with the modern world—though it has, through the Law Commission and through legislation passed in this place. Ultimately, they come here to our courts because they know that the UK is a country governed by the rule of law.

What is the rule of law? At its heart, the rule of law means that the state is governed by laws and that everyone in the state, and the state itself, is subject to those laws. The core features of the rule of law are not now in doubt. They include that everybody is subject to the same laws; wealth, power, status or privilege provide no special protection. Governments and public officials are subject to the law. They must exercise their powers lawfully. The law must be accessible and clear. Disputes should be determined by independent courts and tribunals. A vibrant and independent legal profession is necessary to promote liberty under the rule of law. Without the rule of law, underpinned by an independent judiciary and the courts, much else would fail to prosper. It is one of the foundations that supports economic activity, wider prosperity and a settled society. In short, the rule of law, independent courts and an independent judiciary are not optional extras or simply a service, but one of the foundations on which everything else is built.

I want to make three points about the ambit of the rule of law. The first is as to what is encompassed by it. We have heard Lord Bingham’s name mentioned already, and I suspect that we will hear it many more times. Of course, he wrote a book on the subject, The Rule of Law, published in 2010. If you entitle your book, “The Rule of Law”, people will think that is what it is: the rule of law is what he says it is. I read with interest the recent lecture given by the noble and learned Lord, the Attorney-General, at the Bingham Centre, which is named after him. However, Lord Bingham’s view of the rule of law is a very expansive or “thick” view. It is not shared by many others. To give just one example, his view is very different from that of Sir John Laws, the Government’s senior barrister or “Treasury devil” for eight years and then a Lord Justice of Appeal, in his book, somewhat less attractively titled The Constitutional Balance.

The problem with Lord Bingham’s expansive view of the rule of law, as Professor Gardner wrote in a trenchant review in the London Review of Books, is that it includes within the rule of law

“the full range of human rights: not just those ensuring due process of law for all, but also those concerned with … life, privacy, association, property and assembly”.

On that approach, it is very hard to leave logical space for regimes that respect the rule of law but are otherwise notably illiberal; for example, they forbid gay relationships or organised religion. I would not want to live in a country like that, but is it right that such a state would not have the rule of law? Where you end up, as Professor Gardner put it, is the conceit that

“no country has the rule of law unless it would be morally suitable to join the Council of Europe”.

We do the rule of law a disservice if we try to cram within it any and every social good. Not every social good is a human right, and not all human rights are part of the rule of law. The rule of law with its traditional limits is important enough in itself. It does not need to encompass or express every conceivable legal or social good.

I now turn to international law, because the rule of law applies in the international arena too. International law is law and, just as we should obey domestic law, we as a state should abide by international law. That does not mean we should fetishise international law. It might sometimes be not very good law and might often require updating for a different world, but all that can be true of domestic law as well. Yet it is remarkable how those who, quite rightly, feel able to criticise domestic law, although they will continue to obey it, suddenly regard any hint of a suggestion that this or that point of international law might not be totally perfect as an immediate challenge to the rule of law and an affront to the international order.

Criticising a law is not a challenge to the rule of law. That is true of domestic law and it is also true of international law, especially when we are told that what we all believed to be customary international law has now suddenly changed to whatever certain lawyers close to this Government would like it to be—a process we might call the shifting sands of international law. Nor is it a challenge to the rule of law to make submissions to an international court, urging it not to do something it was minded to do. The previous Government informed the ICC that they would make submissions to the effect that it had no jurisdiction to issue the arrest warrants against Prime Minister Netanyahu and former Defence Minister Gallant, with an already-dead Hamas leader thrown in, in some grotesque form of moral equivalence.

But almost the first act of this Government was to announce that they would not make any submissions to the ICC. Why? The explanation from the Prime Minister’s spokesman was that

“this is a matter for the court to decide on”,

going on to say:

“The government feels very strongly about the rule of law internationally and domestically”.


As a reason for not making submissions to a court, that is risible. To paraphrase Mrs Thatcher, advocates advocate and judges decide. You do not offend a court, or the rule of law, by making submissions, especially if the court has invited those submissions. Perhaps the noble and learned Lord the Attorney-General will explain whether he thinks Germany, which did make those submissions to the ICC, thereby demonstrated that it did not feel very strongly about the rule of law?

Just as we should be careful not to expand the rule of law to include any and every social good, we should also not abuse the concept of the rule of law by dressing up what are essentially political decisions as legal issues. Perhaps if we had made submissions, the ICC would not have reached the legally doubtful—at its highest, I suggest—decision that it reached. But it issued those arrest warrants, and another element of the rule of law is that people need to know what the law is and what the rules are. I did not get a clear answer from the Minister when I asked her just after Questions whether Mr Netanyahu’s immunity, as the serving Prime Minister of a state that is not a party to the ICC, precludes his arrest and handover to the ICC.

That immunity—this is critical—is specifically preserved in our domestic law in a UK statute: the International Criminal Court Act 2001. The Minister told me earlier that there is a conflict between that statute and customary international law, and that it is up to the court to sort it out. On the basis, as I was told this afternoon, that the Government’s position is that this entire question comes down to a “conflict” between an Act of Parliament and customary international law, will the noble and learned Lord the Attorney-General confirm that, in this jurisdiction, a domestic statute always prevails over unincorporated customary international law? If that is right, will he therefore agree that Mr Netanyahu retains his immunity? I appreciate that the final decision on this question will be a matter for the High Court, but the Government must have a position on this issue, and I look forward to the Attorney- General telling us, finally, what that position is.

The third and last feature of the rule of law that I want to mention is equality before the law. This is a fundamental principle. All people must be treated equally and in accordance with the law. We all know the phrase: justice must not only be done but be seen to be done. That applies not only in court but, I suggest, across the entire justice system.

We are rightly proud that we live in a country where we are policed by consent—where our police are not routinely armed. But to maintain public confidence, which is critical, we must ensure that the police not only do their work without fear or favour—as I am sure they do—but are perceived to do so.

I have spoken before about my astonishment that a sign calling for jihad on the streets of London was regarded by the police as not requiring any further investigation. Last week’s Jewish Chronicle reported that a sermon that called for the destruction of Jewish homes and was delivered two weeks after the 7 October massacre was originally not deemed by the Metropolitan Police to meet the criminal threshold, once the context— I emphasise “the context”—was taken into account. After something of an uproar, the police have said that they are now reviewing their earlier decision.

I am well aware of the difficult job that the police have. We on this side of the House—and, I am sure, all of us on all sides—support the police in the work they do. But to maintain public confidence, we need to make sure that justice is done and seen to be done. That applies from the moment when there is a knock on the door by a police officer, right up to the handing down of a sentence by a judge.

I know that the noble and learned Baroness the Advocate-General and the noble and learned Lord the Attorney-General might not agree with everything I have said, but I will conclude with a point that I am sure will command universal support: the rule of law is too important to be left to party politics. Some on the right deride the left for confusing the rule of law with the rule of lawyers. Sometimes, that is a fair criticism. The rule of law should not be a fig leaf to cover up contested policy decisions. Using law as a way of avoiding political debate risks undermining the rule of law. Some on the left—as we heard from the Lord Chancellor and the noble and learned Lord the Attorney-General at Labour’s party conference—like to say that

“the rule of law is back”.

Perhaps this debate is part of that supposed narrative, but we in this House know that their immediate predecessors, Alex Chalk and Victoria Prentis, also firmly believed in, and unflinchingly upheld, the rule of law. This ought not to be a party-political point.

The truth is that we all need the rule of law, and we all want to live in a society governed by the rule of law. It is too important to become a political football. We must all defend it, or we will find that we have lost one of the critical—if often invisible—elements that holds our entire society together.