Rule of Law

Lord Banner Excerpts

Tuesday 26th November 2024 Lords Chamber

[Lord Banner (Con)]

My Lords, I add my welcome to the Advocate-General and congratulate her on a powerful and moving maiden speech. Having cut my teeth as a judicial assistant to Lord Rodger of Earlsferry when he was a Lord of Appeal in Ordinary of this House, I have particular respect for Scottish law officers—as well as English ones, of course—and wish her well in her new role. I also congratulate her fellow Scot, my noble friend Lady Laing, on her similarly excellent and moving maiden speech.

I also belatedly welcome to his place the Attorney-General, the noble and learned Lord, Lord Hermer. We are on opposite sides of this House now, but he may recall that in April 2007—can he believe it was that long ago?—we acted on the same side before the Appellate Committee of the House of Lords, including Lord Bingham presiding over the committee, in a case called Al-Skeini. We were led by one Keir Starmer QC—whatever happened to him? Our unison in that case, despite our differences of political stance in this House now, is a paradigm illustration of the cab rank rule of the Bar. That itself is a manifestation of the United Kingdom approach to equality before the law, which is in turn an important illustration of the rule of law.

These are not new concepts. My noble friend Lord Wolfson, with whom I am entirely in agreement, said that the concept of equality before the law goes back to Aristotle. In fact, it goes back at least 124 years prior to the reforms of Cleisthenes in 508 BC, pursuant to which isonomia—equality before the law—was the precursor to and foundation of the world’s first democracy, in Athens. Just as a foundation stone must be stable, constitutional principles need to be based on consensus if they are to have legitimacy as the ground rules of democracy, as my noble friend Lord Lilley said. In that context, I will make a few observations on the focus of much of today’s debate: the difference between the thin and thick versions of the rule of law.

The thin conception—which, broadly speaking, I favour—holds that the rule of law requires clear, prospective rules, known in advance, applied equally and fairly through proper procedures. It demands that no one is above the law, that justice is accessible and that state power is exercised through established legal frameworks. None of these fundamental tenets is or should be controversial. By contrast, the so-called thick conception is broadly understood to incorporate political considerations and subjective moral values into the definition of the rule of law. With respect, this approach risks conflating what the law is with what some might wish it to be. It risks judges and lawyers substituting their moral judgments for those of Parliament—a role for which they are neither equipped nor democratically mandated—and risks undermining legal certainty, which is a core component of the rule of law, properly understood.

The advantage of the thin conception lies in its clarity about the respective roles of Parliament and the judiciary, as Sir John Laws recognised in his book The Constitutional Balance, which has been quoted already. Parliament makes law, incorporating subjective values that it deems appropriate. Courts ensure that those laws are clear, prospective and properly applied. That division maintains democratic legitimacy, judicial authority and legal certainty.

Against those general principles, I will make three observations. The first is on legal risk in the context of the Attorney-General’s recent guidance. I suggest that it is not unconstitutional or contrary to the rule of law for the Government to take decisions which are at risk—indeed, at considerable risk—of legal challenge. To hold otherwise would be to sterilise government decision-making and neuter innovation. The rule of law requires the Government to respect successful challenges to their decisions but not to act shy of taking difficult or bold decisions for fear of such challenge, provided that there is a proper, reasonable basis for considering them to be lawful. To be fair, unlike some on this side of the House and some recent literature, I do not read the new Attorney-General’s guidance as necessarily being in conflict with what I have outlined. I welcome his clarification and see him nodding; to my mind, there is not much difference between a respectable legal view and a tenable one. They are different ways of saying essentially the same thing.

Secondly, I turn to international law. There is plainly a duty on this country and all countries to follow international agreements that they are signed up to. That duty is in the international law sphere, so to that extent there is an international rule of law. However, we must be mindful that in this country we apply a largely dualist constitutional approach to international law. It is normally for Parliament to legislate to give effect to international treaties so that the Government cannot, in using their treaty-signing powers, legislate through the back door by committing us, and therefore changing the law, without parliamentary consent. Therefore, treating international law as equating to constitutional principles and the rule of law domestically risks undermining that principle. It is important to be mindful of that.

Thirdly, in the context of the rule of law, there are fundamental rights—distinct from human rights as enshrined in the convention and the Human Rights Act. In principle, I take no issue with the concept of fundamental rights, properly understood, forming part of the rule of law. Obviously, that begs the question of what that means. I go back to what I said at the beginning of my speech: provided that those fundamental rights are uncontroversial and based on consensus, as opposed to politically subjective considerations, there ought not to be a problem. There is a problem when the concept of fundamental rights is used to wedge in political factors under the disguise of being part of the constitution.

In conclusion, if the rules of the game are slanted, the game cannot be fairly played.