Rule of Law

Lord Lilley Excerpts

Tuesday 26th November 2024 Lords Chamber

[Lord Lilley (Con)]

My Lords, we have had two excellent maiden speeches from two feisty Scottish noble Baronesses, who are a great addition to our House. I particularly welcome from the noble and learned Baroness, Lady Smith, her thoughtful and promising remarks about secondary legislation, an issue where I think her talents will be put to good use.

It is a particular pleasure to congratulate my noble friend Lady Laing of Elderslie on her outstanding, amusing, punchy and at times moving maiden speech. She is best known for her near-record tenure in the Speaker’s Chair as Senior Deputy Speaker and the first woman chair of Ways and Means, where she was a commanding figure, as we probably appreciated from her maiden speech. In that role she had to practise that most valuable and rarest skill: the art of listening. It also meant that she was constrained in expressing in the Chamber what I know from private conversation are her always sensible and well-informed opinions. That did not stop her impressing her constituents, as her share of the vote over her seven elections rose from less than half the vote to nearly two-thirds. And now she will be able to express her views openly and bring her wisdom, learning and enthusiasm to your Lordships’ House, and we look forward to hearing much from her in future.

We are blessed to live in a democratic country with freedom under the law. I speak with some trepidation as the first non-lawyer to contribute to this debate, but to me the freedom of the law, as it has developed in Britain over centuries, surely means this. First, we are free to do anything, not just some list of things but anything not prohibited by law. Secondly, laws are made in Parliament, which is elected by and accountable to us. Thirdly, all of us—every citizen, public official, policeman, Minister, MP, Peer of the realm—is subject equally to those laws. Fourthly, the role of the courts is to implement those laws impartially and fairly, by due legal process. Finally, if the courts interpret statutes in ways Parliament did not intend or develop common law in ways Parliament feels is out of line with the values of the electorate, Parliament can change the law.

As a result, British people feel we own the law and overwhelmingly abide by it, and we look to Parliament to defend our freedoms. That is what generations of British people have been prepared to risk their lives to preserve. It was good enough for them, but it is not good enough for the noble and learned Lord the Attorney- General, who described it in his Bingham lecture as “thin gruel”. He said:

“Viewing the rule of law through this distorting lens of ultimate decision-making authority … risks mistaking it for the purely formal, and thin, conception of rule by law”.


He wants something “thicker and more substantive”. It turns out that means he wants it to be supplemented by

“an authority that requires that Parliament maintains in its legislation the ideals of the rule of law”

as determined by that authority.

I can find only one country constituted on this model, where an elected Parliament and Government are overseen by an unaccountable authority—a council of guardians—that can tell the elected representatives what laws they may, must and may not enact so that legislation accords with those guardians’ interpretation of their sacred text. That country is Iran, the guardians are the Ayatollahs and their sacred text is the Koran. Here, according to the Attorney-General, our unelected, unaccountable guardians are judges and lawyers. Their sacred text is the European Convention on Human Rights. In Iran, the system was established by a popular revolution; here it is being imposed by a stealthy constitutional revolution.

There has been no upsurge of public demand for the courts to be able to override Parliament. Such support as there has been has come almost entirely from lawyers, many of whom, not surprisingly, favour a system which assumes that their judgment is always wise and objective. The Attorney-General would of course deny that our courts have been given powers like those of the Ayatollahs to annul or replace laws. The Human Rights Act gives our courts the power only to declare a law incompatible with the European Convention on Human Rights. It is then up to the Government and Parliament to decide whether to repeal, amend or replace the offending legislation.

But that is half the truth which conceals the real truth, because, if the Government decline to make the law compatible, a citizen affected by it can take the case to the European court. It is then a racing certainty that the Strasbourg court will uphold or reinforce the Supreme Court ruling and the UK will then be treaty-bound to implement that judgment. That is why, of the 47 declarations of incompatibility so far, 12 of which have been overturned on appeal, which shows how subjective they are, all the rest have resulted in Parliament amending the law.

Many lay people assume that this cannot be a problem in practice. Human rights sound eminently sensible to all of us. Who could object to the right to life, freedom of expression, respect for family life, and so on? Moreover, they sound as if they are clear and absolute—but far from it. Convention rights were open to a wide range of interpretations even before the court decided that the convention is a living document into which they can read whatever they decide is appropriate, without waiting for any changes to the articles of the convention to be made by those adhering to it.

Even when the convention was being negotiated, the British team recognised that these vague rights would give the courts the right to create new laws. They concluded that it was

“inconceivable that any Government … would take the risk of entrusting these unprecedented powers to an international court, legislative powers which Parliament would never agree to entrust to the courts of this country”.

This is why, contrary to the assiduously propagated mythology, both the Attlee and Churchill Governments accepted the convention only on the basis that the UK opted out of the jurisdiction of the court and treated the convention as being purely declaratory, requiring no change in laws, even those known to conflict with it—a position which continued for 15 years.

The only thing that is certain about the meaning of human rights, so vague are they, is that they mean whatever the Strasbourg court decides they mean. The court’s interpretation cannot be repealed, amended or changed by Parliament. Take even the first right: the right to life. That sounds pretty clear-cut, but when does life begin and how should it end? Parliament is shortly to consider the Assisted Dying Bill. Suppose we enact it but the Strasbourg court were then to decide that the state cannot participate in taking life—a very plausible interpretation of that article. Then the court would prevail: the Bill would have to be annulled and Parliament would have been overruled. Suppose the reverse happens and Parliament rejects the Bill but the Strasbourg court rules, under some other article, that state-assisted dying is a human right. Again, the court, accountable to no one, would prevail over Parliament. Those are theoretical scenarios to show how the power to make intrinsically political decisions has been transferred to unaccountable judges.

Consider the recent Strasbourg court decision, mentioned by the noble Lord, Lord Faulks, telling the Swiss Government to set aside a referendum result that had agreed a gradual route to net zero by 2050, and replace it by an accelerated programme costing billions of francs. The court ruled:

“Democracy cannot be reduced to the will of the majority of the electorate and elected representatives, in disregard of the requirements of the rule of law”—


in other words, the opinions of the Strasbourg judges. Do the Government share the European court’s view of the relationship between democracy and the law? If they do, they are effectively saying that the rule of lawyers should replace the rule of law. The two are very different, as the excellent work of the Policy Exchange judicial power project has shown.

Indeed, the rule of lawyers, giving lawyers the right to create laws rather than implement them and encouraging US-style judicial activism, is one of the most dangerous threats to the rule of law. Giving judges and lawyers who are accountable to no one the power to make laws and tell Parliament what laws it may, may not and must make inevitably politicises the judiciary. This undermines public respect for the judiciary and for law itself. It is already happening and it will lead inexorably and ineluctably to demands for the political appointment and vetting of judges. Those demands are already being voiced.

We do not want to end up like America, where Supreme Court judges are appointed on the basis of their political opinions and their actuarial life expectancy, so that the President who appoints them can determine legislation for decades ahead. That sort of thing is the almost inevitable consequence of continuing on the path described by the Attorney-General in his Bingham speech. The Attorney-General may think the rule of law is “thin gruel”, but I fear that rule by lawyers is a mess of pottage, and a dangerous brew at that.