Rule of Law

Lord Keen of Elie Excerpts

Tuesday 26th November 2024 Lords Chamber

[Lord Keen of Elie (Con)]

My Lords, first, I extend my welcome to the noble and learned Baroness, Lady Smith of Cluny, both to her place in this House and to the office of Advocate-General. I thank her for a thoughtful maiden speech. I also extend my welcome to my noble friend Lady Laing of Elderslie, who also made a very gentle and compelling maiden speech to this House.

As the noble and learned Baroness, Lady Smith, and I both began our careers at the Bar of Scotland, some anecdote might be appropriate, but that presents something of a generational challenge. However, I can notice this. I first encountered her when she was in about primary 4. This came about in 1984, when I was instructed to appear in the Court of Session to challenge the relevancy of a series of personal injury actions brought on behalf of a firm called Thompsons. I appeared in court, as a rather callow junior, to find that Thompsons had instructed, on the other part of the case, one John Smith MP. And so, we went to debate for a full day. As noble Lords might expect, he proved to be not only a formidable opponent but a most charming colleague. At the end of the day, he invited me to Cluny the following evening for drinks. I arrived there at about 7 pm to find a young lady handing out canapés and a number of formidable political and legal luminaries in the room, including the late Lord Stott, who was a neighbour and who had been Lord Advocate in Harold Wilson’s first Government.

After about half an hour, John’s wife came into the room and announced that Tam Dalyell MP was on the telephone. He was in a public telephone box in Yorkshire and required immediate advice on the law of secondary picketing. More observant Members of your Lordships’ House will recall that this was in the midst of the miners’ strike. John went to the telephone and returned rather quickly, at which point Lord Stott observed that his advice on the law of secondary picketing must have been rather concise, to which John answered, “My advice would have been longer, but Tam ran out of change”. Thus was our first meeting, although I will forgive the noble and learned Baroness if she does not recollect it in detail.

This debate has been rather like one of the opening rounds of the FA Cup; it seems to be 20-0. None of your Lordships came out in favour of tyranny or despotism. I will not say I am surprised by that, but of course there was a fundamental difference of view about what the rule of law actually is. Generally speaking, it fell between two areas—the thin approach to the rule of law, which embraces fundamental rights, and what was termed the thick approach to the rule of law, which is intended to embrace the wide spectrum of human rights, which are flexible, elastic, and sometimes politicised, as well as being in constant development. I come down on the side of the thin approach to the definition and understanding of human rights.

The rule of law is not a rule, and it is not a law. The rule of law is not the rule of a tolerant society as contrasted with the rule of an intolerant society. The rule of law is not the rule of democratic institutions as contrasted with the rule of undemocratic institutions—albeit that experience and history tell us that the rule of law is far more likely to be adhered to when we have democratic rather than undemocratic institutions of government.

The rule of law is a conceptual framework—some might say a principle—within which we can decide what kind of society we want to live in and what laws we wish to be subject to. The rule of law does not define that society and it does not determine those laws. What it tells us is that our society should be governed by law, and not by despotic whim; that such law should be certain and accessible; and that law should be applied equally and without favour to all persons and institutions within our society. For example, a society that determines by law that only persons over the age of 40 may vote in any election may adhere just as closely to the rule of law as a society that determines that anyone over the age of 16 will vote. A society that determines by law that a person may be subject to physical punishment may adhere just as closely to the rule of law as a society that absolutely rejects any such form of punishment. A breach of the laws made by society is not per se a breach of the rule of law. However, the rule of law requires that those who breach the law should be able to determine the existence of such law and be treated equally.

This is where I agree with the observations made by the noble Lords, Lord Sikka, Lord Bach, Lord Bellingham and Lord Hodgson, and the noble and learned Lord, Lord Etherton, that without access to justice there cannot be equality before the law.

In his work on the rule of law that has been referred to on a number of occasions, Lord Bingham described it as follows:

“The core of the existing principle is … that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts”.


To that extent, Lord Bingham’s definition of the rule of law is consistent with that of Dicey and Joseph Raz, but Lord Bingham went on to specify eight subcategories to his definition. This is where he appears to depart from both Dicey and Raz. For example, his subcategory 4 states:

“The law must afford adequate protection of … human rights”.


This is where we part between the thin approach to what is properly the rule of law and fundamental rights and the thicker approach which seeks to embrace the rather more flexible concept of human rights.

Of course, the law of any civilised society should afford protection to what are identified as human rights, but is that what we define as the rule of law? The law might expressly place limits on freedom of movement or freedom of expression, both of which may be regarded as human rights. Such a law, publicly and prospectively promulgated, is not per se a departure from the rule of law. If we attempt to merge a society’s present perception of human rights with the principle of the rule of law, then we are liable to create confusion rather than certainty. There, I agree with the noble Lord, Lord Verdirame, that while there is room for fundamental rights at the core of the rule of law, such as equality before the law, it cannot be expanded into the more politicised area—and always developing area—of what are termed human rights.

The Roman republic developed a sophisticated legal system and courts which made citizens of Rome subject to the law and not the rule of tyrants. At the same time, it embraced slavery and had a well-developed jurisprudence dealing with all aspects of slavery. Slavery was subject to the rule of law in the Roman republic and not the whim of individuals. Both master and slave were the subject of law. I give that example in order to emphasise that while the rule of law as properly understood and expressed by Aristotle is clear, it is not to be confused with our perception of or belief in human rights. We consider the concept of slavery to be abhorrent. It does not follow that a society which embraced slavery had abandoned the rule of law. The same essential principles apply at the level of international law between states. The relationship between states is generally governed by customary law, conventions and treaties consented to by the states. Such law should be certain and accessible. Such law should be applied equally between states.

Nation states adhere to their treaty obligations as a matter of principle and indeed political expediency. Nation states adhere to their obligations under international conventions on the understanding that, if they do not do so, they may be subject to sanction. However, a breach of a treaty or convention is not to be regarded simply as a departure from the rule of law.

I suggest that it is critical that we begin and end with a correct and certain understanding of what the rule of law is. When you seek to incorporate all aspects of human rights, as interpreted from time to time by courts and international tribunals, you are going to lose the certainty that is required in such an important definition. Indeed, such a step will, as the noble Lord, Lord Lilley, observed, lead eventually not to the to the rule of law but to the rule of lawyers.

So I have to take issue with the noble and learned Baroness, Lady Smith, on the suggestion that all human rights, the Human Rights Act and all human rights embraced by the Council of Europe are fundamental parts of the rule of law. That, I suggest, is to diminish them and confuse what the rule of law actually represents. Of course, human rights have an important place in our society and law, but they stand on their own feet and are not to be confused with the rule of law as such. I thank your Lordships for your attention.