Legal Systems: Rule of Law

Lord Morris of Aberavon Excerpts

Thursday 10th July 2014 Lords Chamber

[Lord Morris of Aberavon (Lab)]

My Lords, we are particularly grateful to the noble and learned Lord, Lord Woolf, for securing this debate. There could be no better example of the contribution made by the judiciary than the ever watchful eye of the noble and learned Lord; we have heard this afternoon, of course, his own outstanding contribution. Moreover, I have had the privilege of appearing before him. For the removal of doubt, I make it clear that my appearance was as counsel and not in the dock. Before I leave the issue of the integrity of our judiciary, I compliment another outstanding figure of integrity, the noble and learned Baroness, Lady Butler-Sloss. I compliment the Government on choosing her to fulfil a difficult role.

I will deal with only one aspect of the observance of the rule of law, and that is in international affairs and the difficulties that I experienced. It is the interpretation and implementation of the rule of law that causes problems. Domestic law in general is more certain than international law, where judicial precedents can be scarce. As the Attorney-General, it was my task to be the Government’s principal legal adviser. I was fortunate in being able to call on a galaxy of legal expertise to assist me. However, before I took office it never crossed my mind that the interpretation of international law would play such an important part and demand so much of my time and attention—from advising on resolutions of the UN Security Council and interpreting the Geneva conventions to drafting the rules of engagement for our troops. It seemed to be an endless conveyor belt.

However, it was the interpretation of the rule of law during the war in Kosovo that was my biggest problem. As Ministers, the military and civil servants, we are bound under domestic law and the Ministerial Code to obey international law, hence the military’s anxiety to get legal cover for its activities. With the growth of international courts, that is becoming more and more important. Our decision-makers, particularly but not only the military, could find themselves having to answer for their actions before an international court. My job was to give what assurances I could for the actions proposed by the Government. In Kosovo, the internationally assessed evidence was quite clear: an overwhelming humanitarian catastrophe was taking place in that country. Ethnic cleansing was being perpetrated on a scale with few parallels. What was the background? Article 2(4) of the United Nations charter prohibits the intentional use of force except for self-defence or with the authority of the Security Council. During my time, it was impossible to get the Security Council to allow the use of force by passing an appropriate resolution.

Was that the end of the matter? My Conservative predecessors had to consider whether force could be used on humanitarian grounds in Iraq 1 in order to set up no-fly zones to protect the Kurds and the Marsh Arabs. I distinguished Iraq 1 from Iraq 2, and they agreed that it could be used. The difference between Iraq 1 and Kosovo was that the United Kingdom acted passively in the former, whereas if bombing night after night was authorised in Kosovo we would be proactive, if not aggressive. We believed that there was no practical alternative to our proposed use of force and that it was the minimum necessary.

Our observance of what we deemed to be the rule of law was further manifested in that, night after night for 68 days, I personally had to agree each bombing target to ensure that we adhered to the Geneva conventions. I queried some of the applications to bomb, and I turned down the last application to bomb a great part of Belgrade. Many years later, I was present in Brussels when I heard the NATO supreme commander saying, “If the Brits thought it right, it must be right”.

My prognostications about the possibility of having to answer for our actions before an international court turned out to be true. I was summoned back from a conference in the Caribbean to lead for the United Kingdom in an action brought by Yugoslavia before the International Court of Justice at The Hague, in its attempt to stop the bombing. The United Kingdom was one of nine NATO defendant countries. The court found that it lacked prima facie jurisdiction to entertain Yugoslavia’s application. The main issue was deferred and never resolved. I was disappointed that the legality of our actions could not be determined, and some distinguished academic lawyers have since condemned and contested our actions.

I believe that international law has to evolve to meet the post-1945 conditions. I note that the present Attorney-General, in his advice to Parliament on the proposed military action in Syria last year, followed precisely and word for word the relevant observations set out in my own memoirs. In the part of his opinion that was published, there was no reference to the possibility of actions being challenged by a legally competent, interested country in an international court. I am sure that as a distinguished lawyer he made it quite clear that there was this possibility, and brought it to the attention of the Cabinet.

Finally, against the celebrations of Magna Carta, we can all be extremely proud of our own legal system and its contribution to the world.