Rule of Law

Lord Stewart of Dirleton Excerpts

Tuesday 26th November 2024 Lords Chamber

[Lord Stewart of Dirleton (Con)]

My Lords, I join the whole House in welcoming the noble and learned Baroness to her place. I seek to give the House an assurance of two things that she already knows. First, as Advocate-General for Scotland, she enjoys the support of a dedicated, professional and, in every way, excellent department of civil servants. As a self-employed advocate, it may come to her, as it did to me, as something of a surprise to find, among other things attaching to the role of Advocate-General, that one is suddenly responsible for 500 employees. I am sure that the noble and learned Baroness will take to that readily. Secondly, in her role she will enjoy the support of all of us who have had the honour and privilege to serve in the office she now holds.

I am particularly glad to see the noble and learned Baroness in her place, as there seemed to be some delay in her appointment after the general election—so much so that when I was in the House for the debates on the King’s Speech, I was approached by the noble Lord, Lord Foulkes of Cumnock, who asked: “Are you still Advocate-General?”. I had to tell him that, as far as I was concerned, the Government had elected to seek advice about Scots law from another quarter. He said: “Well, they haven’t appointed a successor yet”. I said: “Well, that may well be the case, George, but they have stopped paying me and, as far as I am concerned, that determines the matter”.

The excellent debate, which we have enjoyed, points up something of the Protean nature of the rule of law: a concept shifting subtly in our hands as we seek to define it. It was that very act of pinning down to which the noble Lord, Lord Faulks, spoke in his submission to your Lordships. It was also echoed by the noble and learned Lord, Lord Etherton, and the noble Lord, Lord Verdirame. It defies a simple definition that is universally applicable. It is made up of a number of component parts, and I associate myself with the remarks of the noble Lords, Lord Bach and Lord Sikka, concerning the importance of access to law. In so doing, I declare my interest as an advocate with a justiciary practice who is therefore paid substantially out of the public purse.

We must also be careful to test some of the assertions made by the noble and learned Baroness in her excellent speech. When she says that compliance with international law is the right thing to do morally, does that not rather beg the question of whether international law in specific circumstances is moral in itself? Does it not beg the question of whether its materials are apt, necessarily, for contemporary circumstances? When the noble and learned Baroness pays tribute to the role of the Human Rights Act in protecting human rights, is that not as much a recognition of the hard work done by generations of our predecessors as lawyers and as parliamentarians? It is not surprising, surely, given that the convention was conceived of as a means of inoculating other jurisdictions with our legal norms—other jurisdictions as culturally and as materially sophisticated as ours.

We cannot, as lawyers and parliamentarians, be blind to the fact that law has, over the course of history, supported oppression. My noble and learned friend Lord Bellamy, in his thoughtful submission, made reference to that in the context of the ongoing Horizon scandal. The House will be aware that, over the years and centuries, eminent lawyers in different times, working within noble legal traditions, have bent their talents and learning to erecting a framework for what to us, but not to them, seemed to be morally indefensible concepts. The obvious examples that I can give would be the use of Roman law in erecting a framework around the concept of slavery, or the role of lawyers in South Africa who did not honourably distance themselves from the exercise, working within the noble Roman Dutch tradition, in building a structure for apartheid.

My noble friend Lord Wolfson, replying to the noble and learned Baroness, gave a speech with not one word of which I would disagree. In the course of my short remarks, I seek to echo just a couple of the points he made. I contend that one of the most important would be that we must not, and must be careful of, dressing up political decisions as legal ones. There is a worrying trend of judicialising what are political matters, of taking out of the political realm matters that belong there and placing them out of the reach of democratic oversight. Parliaments, courts and judges put law in place, but they cannot of themselves clothe law with authority—my noble friend Lord Lilley made that point in his excellent submissions to your Lordships. Ultimately, in a parliamentary democracy, it is for Parliament, the apex of the rule of law, to confer authority on law. We must acknowledge that and seek to live up to it. To the Executive alone rests that task.

Only the Executive have the expertise and infrastructure properly to enact law, to research its implications, to predict its outcomes and to see it in the context of other law. The legislature is the means by which we and the Executive can be satisfied that laws proposed will be acceptable to the electorate. Because our judges have no mandate: unlike Governments, they cannot be voted out. Our courts lack the scope to assess the impact of their decisions, and that is sensible where they operate in their proper role of interpreting and applying laws enacted by Parliament. To echo something said by the noble Lord, Lord Verdirame, in an earlier stage of today’s proceedings—during Questions—laws must be clear and intelligible. That principle inspired the initiative of King Alfred the Great to express law in the English language so that it could be acceptable and accessible to everybody. We must recognise the importance of that democratic consent—my noble friend Lady Laing of Elderslie alluded to this in her splendid and moving maiden speech. The public will not have confidence in law enacted in a manner remote from them and apparently dismissive of their concerns.

My noble and learned friend Lord Bellamy gives voice to the view that all things are ultimately to be found in Shakespeare. Let us be careful lest the public come to echo the call of the rioters in “Henry VI”,

“first … let’s kill all the lawyers”.

The second verse of our national anthem contains a series of desiderata. The third is, “May he”—the antecedent of the pronoun “he” being the King—

“defend our laws,


And ever give us cause

To sing with heart and voice

God save the King”.

By our laws, that conveys laws enjoying the confidence of the governed. Any consideration of the rule of law must bear that important concept in mind.