Rule of Law

Lord Hodgson of Astley Abbotts Excerpts

Tuesday 26th November 2024 Lords Chamber

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I have been listening to some very high-level exchanges, including two extremely distinguished maiden speeches. I am one of the minority of non-lawyers participating in this debate today, so I am afraid I shall be operating at a less rarefied level. For the purposes of this debate at least I, as a non-lawyer, will be the man on the Clapham omnibus.

I want to make it clear that this man on the Clapham omnibus understands, appreciates and supports the vital role that the rule of law plays in our society. You cannot study history at university, as I did, without realising that to be the case. But I am also of the view that there are aspects of the rule of law, as seen from my omnibus, that are under strain. This non-lawyer offers three for thought and discussion.

The first is the danger of the law becoming deracinated and distanced from the society it seeks to serve. An essential part of maintaining general confidence in the rule of law is what I have called before in speeches in your Lordships’ House “informed consent”—my noble and learned friend Lord Stewart of Dirleton dealt with this topic a bit in his remarks—by which I mean that the rule of law cannot consist of ex cathedra judgments from some lofty chamber. Rather, it has to take cognisance of how our society is changing and how our social attitudes and approach are altering. In short, it has to remain in touch with, and be seen to be relevant by, those of us on the Clapham omnibus.

I appreciate that many lawyers will see this as wrong and inappropriate. Some might say that I am suggesting that the courts bow to the whims of temporary public opinion and that, if society wants a different approach, it is up to Parliament to change the law and make it so. I understand this up to a point, but we all know that the law needs interpreting and there is no fixed, immediate and completely correct view. That is, after all, what legal cases are about. Where on this possible spectrum of interpretations does the judicial judgment fall? If these judgments are seen by us on the Clapham omnibus to be at odds with our life experience, and persistently so, our confidence in the rule of law will be weakened. That is my first point.

My second point is about the rule of law and secondary legislation. I was interested to hear in her very impressive maiden speech the noble Baroness the Advocate-General refer to this issue, as indeed did my noble friend Lady Laing of Elderslie.

Some Members of your Lordships’ House will recall that I was, for a time, chairman of the Secondary Legislation Scrutiny Committee. With my noble friend Lord Blencathra, who was, at the same time, chairman of the Delegated Powers and Regulatory Reform Committee, and assisted enormously by, sadly, the late Lord Judge, we ran a campaign. Our report was called Government by Diktat. The DPRRC report was called Democracy Denied?

There were several debates on these reports held in your Lordships’ House and, if the noble Baroness the Advocate-General, and indeed the noble and learned Lord the Attorney-General, have a moment to glance through Hansard, they will see that there was an overwhelming level of support for addressing this issue from across the House, not least from the Front Bench of what was then Her Majesty’s loyal Opposition —now His Majesty’s Government. We have heard a little less about this since the general election, although tonight gave me renewed hope that things might be changing. The Advocate-General said in her opening speech, while promising a fresh approach, “This is what a reset looks like in practice”. I hope I have quoted her correctly and that she will forgive me if I say that it is a little skeletal for what I am hoping for in this. I wonder whether the Attorney-General might be able to give the House a bit more detail about this reset when he comes to wind up in an hour or so’s time.

From a rule of law and a secondary legislation scrutiny point of view, it is not the regulations themselves that cause the major part of the trouble but the stuff that comes with them—the guidance, circulars, statements and codes of practice on which judges seem to be tempted to make comments.

Let me give a very quick example. Members of the House will recall that, when Covid struck, we were all restricted on how much we could exercise. We could exercise once per day, as the House may recall. But, in fact, that was not in the law; it was in the guidance. The law—the regulation—said nothing about how often you could exercise; it was up to the guidance. In my humble view, courts and judges are unwise to allow themselves to be tempted to comment on matters of guidance. Inter alia, if judges comment, as many have, about the need to have regard to the guidance, I, as the man on the Clapham omnibus, will take that to mean that I had better do it. Therefore, guidance morphs into law and practice. This development, along with the deracination point I made earlier, comes close to offending the Bingham principle of the law having to be

“accessible … intelligible, clear and predictable”.

My last point is about another of Lord Bingham’s points:

“Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes”.


This is about the practical application of the rule of law and the issue of equality before the law referred to by my noble friend Lord Wolfson in his opening remarks, and indeed dealt with by my noble and learned friend Lord Bellamy.

I have been distressed many times in my career by the way in which big companies, rich men and, dare I say, dishonest men, can bend—note that I say “bend”, not “break”—the rule of law to their purposes. Let me give a simple example again. I have advised a small company. It had the capacity of inventiveness and found a way to create a better chiller mechanism—the chillers that you see in your supermarket. A big company bought six of them, not to sell them but to take them apart and re-engineer them so that the patent my client company thought it had was not broken. The advice that my client had was that actually the patent had been broken. A seminal meeting took place at which the big company said, “Fine, we’re going ahead and if you don’t like it, sue us—and by the way, before you start, our lawyers say it’ll be two years before this gets to court”.

That is game over—no small company has the resources, let alone the psychological stamina, to keep up with that pressure. Then we move on to individuals. An individual architect I knew had a client who asked for work to be done and then refused to pay any of the bill on some minor fault. When the case was coming to court, the client claimed he was ill, he changed his solicitor, the case was not ready, and the delays went on and on. Individuals, particularly individuals dealing with rich men, wish to bring a case to court so that their life can go on. They want to have closure and move on, and too often the law has not provided the right balance and the right protection to these people. Part of my vision of the rule of law is that they should be provided with that—they should be allowed to have that and the law should be there. The equality, in essence, is too often being broken.

I conclude where I began. Of course I am a strong supporter of the rule of law, but there are some areas where it needs persistent examination, to look at and consider the ways that we can make it real for everybody, including the people with me on the Clapham omnibus.