Rule of Law

Lord Marks of Henley-on-Thames Excerpts

Tuesday 26th November 2024 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, this has been a very important debate on the rule of law. We have been very fortunate to be able to have it, and it has been a great credit to this House. It has also been a great privilege and pleasure to hear two fine maiden speeches. The noble and learned Baroness, Lady Smith of Cluny, delivered a maiden speech that has been unanimously acclaimed as a tour de force. She spoke clearly for the House and the Government, but also for Scotland, the devolution settlement and the Scotland Act. She also spoke movingly, if I may say so, about her family, her mother and her daughter Ella. In her new role, her dedicated commitment to our international obligations and the European Convention on Human Rights these Benches unstintingly support.

The noble Baroness, Lady Laing of Elderslie, another distinguished lawyer from Scotland, also gave us a brilliant maiden speech. She is a distinguished constitutionalist and parliamentarian of note, “with the customs and procedures of the House of Commons running through her veins”, as she put it. She reminded us of how democratic argument in Parliament also requires the honest and impartial application of a system of rules, another aspect of the rule of law, which is important in any democracy. Along with the speech of the noble and learned Lord, Lord Stewart of Dirleton, and the one that we are about to hear from the noble and learned Lord, Lord Keen of Elie, we are reminded of the importance of Scotland’s distinctive voice in this House on legal issues and the discussion of the devolution settlement and constitutional affairs in the United Kingdom.

As might have been expected, a majority of our speakers have been lawyers, but the voice of non-lawyers has also been important and significant in today’s debate. I found in particular the speech of the noble Lord, Lord Hodgson of Astley Abbotts, really helpful on equality before the law and making the rule of law real. Significantly, last week also saw the 103rd plenary meeting of the European Committee on Legal Co-operation, which approved a draft convention for the protection of the profession of lawyer. At a time when both the rule of law and lawyers’ independence are under threat, international co-operation to enable lawyers freely and independently to represent their clients is a vital component of the rule of law. As the Bar Council’s Manifesto for Justice put it:

“Recent and repeated public attacks on the legal profession and on the independence of the judiciary by politicians, coupled with negative rhetoric, has undermined the trust and confidence in our justice system—both at home and abroad”.


I ask the Minister and the Government for a commitment that the United Kingdom will take steps to ensure that this country plays its full part and signs up to this convention. That would recognise the importance of lawyers to the rule of law, stressed by the noble and learned Lord, Lord Bellamy.

However, we can be too defensive—and I say that for two reasons. The first is the positive. Our outstanding judges and our legal system as a whole maintain the highest reputation for independence, integrity, incorruptibility and impartiality—but increasing diversity is also crucial, as the noble Lord, Lord Kakkar, argued. The noble and learned Lord, Lord Bellamy, reminded us of Fuller’s principle:

“Be ye never so high, the law is above you”.


That is a principle that underlies all that we say. The result has been that our civil justice system enjoys an unparalleled reputation, particularly in the commercial world, as the noble Lord, Lord Wolfson of Tredegar, said, and our international standing and the earnings that it brings to this country are very high indeed.

In this connection, I mention the success of international arbitration; the passing of the Arbitration Bill through this House after an unwarranted glitch in the wash-up has advanced that cause. I ask the Government now to turn their attention to passing legislation on litigation funding to reverse the PACCAR decision, as was to have been done before the election, with all-party support, leaving the acknowledged need for regulation of funders to be considered by the Civil Justice Council later.

The second reason we can be too defensive is negative. Much of what has gone wrong in the fields of criminal justice, our penal system, access to justice and public respect for the law is our fault—the fault not just of lawyers but of politicians and government. I depart from those who maintain that a commitment to the rule of law does not extend to those political and societal features of our national life that generate the confidence of the public that the law is there for them and that the law will be fairly administered. I regard it as central that the concept of the rule of law is close to the theme of government by consent. That means trust in the police, the courts and the penal system, and trust that Governments and government agencies will apply the law fairly. It is about maintaining the compact between government and governed that keeps trust alive. As the noble and learned Lord, Lord Stewart of Dirleton put it, it is about our laws “enjoying the confidence of the governed”. Regrettably, I suggest that that confidence and that trust has been breaking down.

The rule of law on our streets and in our communities is not just about policing. In the criminal context, or the quasi-criminal context, the failure of the system over recent years to address increasing violence against women and girls has been lamentable. I welcome the commitment of the Government to halve violence against women and girls, and I welcome the 16 days of activism against gender-based violence that is currently under way. The public commitment to ending domestic abuse in particular has improved beyond recognition, but the real-life plight of women and children in their homes, at risk from those they live with, remains a sad reflection on the unreality of the rule of law for millions.

On the police, we in this House, and in politics in general—I suspect because of there being different Ministries—tend to separate out issues of criminal justice and policing. A mistake, I suggest. We cannot sort out issues of policing unless we sort out issues of criminal justice, and vice versa. The rule of law demands that we address the inability of police to tackle low-level crime; the ability of street gangs to operate unchecked in our communities; poor community relations and often still outright hostility between black communities and police; the courts’ inability to handle their case load, discussed by the noble Lord, Lord Macdonald of River Glaven; and the crisis in our prisons and probation service.

The rule of law is imperilled by a lack of public confidence that the law will be followed and enforced by the agents of the law. Certainly, much of the difficulty in maintaining trust in policing on our streets and in our communities, in our criminal justice system and in our prison and probation services stems from lack of resources.

Part of the challenge is to maintain and rebuild trust in the face of shortage of resources, but more is to restore the levels of funding that the noble Lord, Lord Macdonald, rightly argued the case for a little earlier. With all these resourcing issues, we need to persuade the Treasury to take a fresh and far less bunkered approach. Reoffending costs this country £18 billion a year and that is just the direct cost of reoffending. It does not cover the costs across the rest of national and local government: social services, education, housing, and lost tax revenues. The Treasury needs to work on developing a cross-government strategy on spend to save, and it is miles away from it yet.

I suggest that it is uncontroversial that the health and working of the courts and justice system are central to the rule of law. Continuing court backlogs are disgraceful. We have too few criminal courts that are working. We have a shortage of judges. That could be solved, partially, at least, by recruiting more assistant recorders and by increasing sitting hours and sitting days. It is wrong that there is an imposed cap on sitting days: 105,000 this year, down from 107,700 last year. There is a shortage of lawyers, caused in large part by a shortage of resources, because criminal barristers are unhappily unwilling—by which I mean they are unwilling, but that is because they cannot afford to be willing to accept the work.

The rule of law suffers real damage from delays, as well as from miscarriages of justice, as those tied up with cases that have not come on have their lives put on hold, as cases are abandoned, as witnesses withdraw their evidence, and as recollections inevitably dim. The main issue, again, is lack of resources. A secondary issue, though, is reluctance to innovate. We need smarter use of technology and cleverer ways of listing cases and ensuring that resources are properly used.

In the civil justice system, lack of accessibility is a central issue. The damage to access to justice and the availability of legal aid discussed by the noble Lord, Lord Bach, who has been a tireless campaigner for access to justice for many years, has been incalculable. The increase in access to justice for all our citizens is essential across the board. Legal aid is hardly available for housing cases, debt cases, social security cases, education, immigration or the interface between government and system, and where it is available, it is inadequate. The restriction of legal aid has largely destroyed access to justice, a case that has been eloquently argued by the noble and learned Lords, Lord Etherton and Lord Stewart of Dirleton, and the noble Lord, Lord Sikka. Protection of the most vulnerable was the paramount theme of the speech of the right reverend Prelate the Bishop of Norwich.

In all courts, we need to welcome innovation. I mentioned the greater use of technology, but we need to reduce unnecessary hearings and delays and lawyers must be astute not to be Luddite about this. We have also considered in this debate the ways in which our lawmaking here in Parliament and in government affects the rule of law. The noble and learned Baroness the Advocate-General spoke of the balance between the Executive and the legislature. I suggest that we need two major changes. First, there must be an end to skeleton Bills full of powers for Ministers to make law by secondary legislation. In this House, we had the pleasure and the privilege of hearing frequently from the late Lord Judge on the excessive grant of Henry VIII powers, as mentioned by the noble Baroness, Lady O’Loan.

Secondly, we need more pre-legislative scrutiny. I was a member of the committee that heard the pre-legislative scrutiny of the Defamation Act and, more recently, the Arbitration Bill, as well as the Special Committee. Those were Law Commission Bills, and the Law Commission does very thorough work. It has the benefit of a mass of expert input into proposals before any draft legislation is introduced, and the legislation that is introduced as a result of Law Commission work is generally the better for it. A wide range of Bills that come to this House receive thorough consultation, but I am afraid that many do not. That is an important point: when we are asked to legislate on Bills that come to us, frankly, half-digested, we cannot do a proper job.

A further point of great importance to the rule of law relates to the balance between the legislature and the Executive. As the noble and learned Lord, Lord Etherton, pointed out, the law must sustain a balance between officials and citizens. That means a clear commitment to the law being able to hold, and actually holding, government, local and national, to account. In this country, much of this has been guaranteed by judicial review—it may be no surprise that I do not necessarily agree with everything that fell from the noble Lord, Lord Lilley, on this. That goes particularly for human rights, the subject of the speech by the noble Baroness, Lady Whitaker. Yet under the last Government, we were frequently given the impression that they saw judges as getting in the way of democracy and that judicial review was a nuisance that ought to be curbed.

There is always a tendency in government to dislike judicial interference, and one can understand why there is a natural tension there. The account by the noble Lord, Lord Faulks, of his experience as a Minister was instructive, and although he and I do not always agree on the limits of judicial intervention, his account was, I suggest, balanced. Nevertheless, my view of judicial review is that it is one of the most important developments of the law over the last half-century. From these Benches, we will see this new Government’s approach to judicial review as a litmus test of their commitment to the rule of law.

Internationally, our standing depends on our respect for the rule of law. The last Government’s willingness to flout our international commitments relating to Northern Ireland and the Rwanda legislation, now thankfully abandoned, were lamentable departures from the rule of law and threats to our international reputation and standing, as argued by my noble friend Lord Thomas of Gresford and the noble Lady Baroness, Lady O’Loan. On these Benches, we are strongly encouraged by the noble and learned Baroness’s commitment to the Government’s compliance with our international obligations. In the wider context, respect for the rule of law at home is reflected on the world stage by our international commitments and our honouring those commitments, and we should never forget it.