That this House takes note of the Report from the Constitution Committee The rule of law: holding the line against tyranny and anarchy (13th Report, HL Paper 211, Session 2024–26).
My Lords, it is a great pleasure to introduce this debate as chair of the Constitution Committee.
Noble Lords will have heard many times politicians and others praying in aid adherence to the rule of law and avowing its importance. Yet very few people seem to understand what it represents and how fundamental it is to our constitution. The Constitution Committee conducted a long and detailed inquiry into the rule of law and published its report towards the end of last year. This was prompted by a sense that the rule of law was being threatened in many parts of the world. We wanted to understand the extent to which we in the UK should also be concerned by that.
It was a privilege to chair the committee during the inquiry, and I am grateful to all those who contributed to it—our witnesses and my fellow members, whose knowledge and experience greatly strengthened the final report, and some of whom are speaking today. I am sorry that time constraints meant that the noble Lord, Lord Anderson of Ipswich, and the noble Baroness, Lady Hamwee, had to scratch. They played an important part in our deliberations. I mention in particular our excellent secretariat and clerks, who delivered our witnesses, our drafts and good humour, even when we became embroiled in the weeds of the subject.
My Lords, it was a great privilege to serve on the Constitution Committee and a great pleasure to serve under the chairmanship of the noble Lord, Lord Strathclyde, particularly for this important report. As the House might expect, he conducted the committee with tremendous brio and a great sense of democracy within the committee as well. I apologise to the House, because I am bound to repeat and to reinforce much of what he has said about the significance of the report and the way we pursued it.
It is the singular task of the Constitution Committee to hold the elements of constitutional democracy up to the light, to show how it works for real people. This was one of the most penetrating outcomes of that very important report. Six months on, with the Iran war more unsettled than ever and the rule of law increasingly embattled, it is paramount that we in the UK are unconditional in our commitment to the principle and the practice of it at home and abroad.
That is why this inquiry was so important and so timely, but it was a brave choice and a brave chair. It was a very challenging inquiry in breadth and depth, reaching back to the roots of our democracy, as the noble Lord, Lord Strathclyde, said, but also reaching into a very uncertain future. Tom Paine, whom I lay claim to as another resident of Lewes, would have applauded the title and particularly the subtitle—The Rule of Law: Holding the Line Against Tyranny and Anarchy—because it articulates his own deep conviction in the American context of 1776 that in free countries,
I declare an interest as a serving member of the supplementary panel of the Supreme Court of the United Kingdom.
The report of the Constitution Committee, to which I contributed as a member, is a timely reminder of the importance of the rule of law as a vital constitutional safeguard. It is something that is largely taken for granted, but that it has been the subject of so much discussion in recent years is itself a sign of growing concern about its vulnerability. I congratulate our chairman, the noble Lord, Lord Strathclyde, on his skilful navigation through a subject that is apt to be diverted into academic byways and alleyways by focusing on the practical. In the few minutes available, I will touch briefly on two subjects: the independence of the judiciary, to which there has already been reference, and a discrete aspect of access to justice.
Judicial independence is central to the rule of law. It is reflected in the judicial oath to
“do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will”.
Judicial independence enables judges to administer justice impartially and to treat equally those who appear before them. Equality before the law is a cardinal principle. Our report noted the importance of judicial independence—independence from the Executive and Parliament, of course, but also from all who might seek to put pressure on courts, not just politicians. That includes the press, large corporations, trade unions, activists and campaigners. Judges are required to resist all such pressure.
My Lords, I am told that we should never start a speech with an apology, but I sincerely apologise if I have to leave before the end of the debate to get back up to Scotland—I had not expected the debate to be taken so late. I did not want to withdraw, as I was very keen to participate in the debate on this important topic, as a member of the Constitution Committee at the time.
It is a vital topic, though I was a bit sceptical about it. As members of the committee will know, I thought it would be hijacked by the lawyers into a very dry topic, but it has proved, as the noble Baroness, Lady Andrews, said, to be a really important issue. This is an excellent report from the Constitution Committee, ably chaired, may I say, by the noble Lord, Lord Strathclyde. He and I have crossed swords in Ayrshire from time to time, but I have great respect for the way he chaired the committee through this report.
The most striking observation from the report is that the greatest threat to the rule of law does not come from a dramatic crisis but can emerge gradually through declining institutional standards, weakened scrutiny and political rhetoric which encourages the loss of faith in our democratic institutions.
Take the case of Henry Nowak. Okay, the police failed in their duty, but they are being held accountable and, as the report says, individual failures within an institution should not be used as an excuse to undermine that institution completely. Sadly, in the Nowak case, before the facts were established, Reform UK immediately sought to use that tragedy to claim, wrongly, that Britain has a system of two-tier policing against white people. That is the kind of dangerous politicking the report warns against.
My Lords, it is a particular pleasure not only to follow the noble Lord, Lord Foulkes, who, happily, is restored to full health, but to find oneself on the same side of the argument as him, because for a good many years in another place, I had to suffer being on the wrong side of the argument. That was very uncomfortable. I also join with all the other members of the committee who have spoken in paying tribute to our chair and to the other members.
The other day, I read that Michelle Obama said that she had never met a white man who suffered from imposter syndrome. All I can tell you is that when the noble and learned Lords on our committee got going, I certainly felt imposter syndrome. The noble Lord, Lord Anderson, and the noble and learned Lords, Lord Bellamy, and Lord Burnett, are all wonderful, but they are also practical people as well as being very good lawyers. We have heard from two of the other members already, and we can all be proud of this report.
It is fitting that we debate this fundamental matter in the same week that we grieve for Lord Mackay who, if you wanted an embodiment of what the rule of law meant—practical but also learned—he was it. I will not go into too much detail, because I would get in trouble with former colleagues, but there were a couple of occasions in the Cabinet in which I was privileged to serve with him when more robust colleagues were going off in one direction or another. That beautiful Scottish brogue brought them back on to the safe line. Nobody wanted to argue with him.
Oh! I did it wrong again. It is a pleasure to follow the noble Lord and to echo his words about the late Lord Mackay of Clashfern—the very embodiment of wisdom and decency, and a great Scots lawyer. It was a privilege to have known him.
It was an interesting challenge to be a member of the Constitution Committee, which undertook the inquiry on which this report is based. We have already heard from some of the distinguished noble Lords who served on the committee. I not only agree with all their points but thank them for all that I learned while sitting in their company during this inquiry.
It is a widely held misconception that examining aspects of the constitution is nothing more than a dry old academic exercise undertaken by dry old academics. It is not. This was a genuine inquiry. We explored a very wide range of issues and aspects, and we asked questions to which we did not already know the answers. We were often surprised by the conclusions to which we came after having considered the evidence.
Why do this report and this debate matter? I will make three brief points in answer to that question. First, they matter because one of our important conclusions was that safeguarding the rule of law is a shared responsibility. That responsibility lies not only with judges, lawyers, Ministers, parliamentarians, civil servants and public authorities but with every citizen. To maintain a free society, we must nurture a widespread culture of respect for the principles of the rule of law. Although this debate might not quite compete for audience figures with England against Norway—it probably will not even compete with children’s television—I sincerely hope that the fact we are having it is a small step in our quest to create a wider understanding of the importance of our constitutional conventions.
I have seen some excellent examples of citizenship education in many schools that I have visited over the years but, sadly, we discovered during our inquiry that this excellence does not occur widely throughout the country. Perhaps the end-of-term report for most schools on the subject of citizenship education would be, “Must try harder”. I am sure that the Minister will respond that citizenship education is a statutory requirement. Indeed it is, but teachers need more help: they need more training so that we can ensure that lessons are being effectively delivered. The committee’s recommendation at paragraph 246, which concerns helping schools to deliver education on citizenship, particularly deserves to be taken forward by the Government. Giving children an understanding that constitutional principles are the very foundations of our free society is the first step in creating good and responsible leaders for the next generation.
As the first person to speak this afternoon who can claim no part whatever in the production of this report, I independently express my view, and the views of many to whom I have spoken, on its excellence and that it needed doing and that what it said needed saying. All those who produced it deserve a great thank you. Having said that, I want to deal with one topic, partly to reinforce the strength of this report in one minute area. I will draw on what I have observed happening elsewhere in Europe, and on how steps have been taken to undermine the rule of law; we must learn from that. The central lesson we learn is that those who seek to undermine the rule of law make the judiciary the prime focus of their plans and actions.
I will give your Lordships three examples. First, you weaken public confidence, primarily through attacking judges through the media, exploiting inefficiency in the courts or delays, and attacking what might seem incautious decisions or incautious extrajudicial statements. The second is undermining the self-governance and unitary structure of the judiciary. The third is appointing compliant candidates to high judicial office and then using disciplinary proceedings and other measures to remove strong judges. These are the means that are used, of which there are readily available examples, particularly in Hungary and Poland, of what has happened in neighbouring countries in the last few years. It has all been done, as the noble Lord, Lord Foulkes, pointed out, subtly, and in some cases with considerable success.
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Over nine months, we received more than 100 written submissions and heard from judges, practising lawyers, the police, journalists and young people. We deliberately sought views from people not normally asked for those views. The result is a report that seeks to provide an accessible evolution to our understanding of the rule of law, as well as to ask whether we are doing enough to preserve and strengthen it.
The rule of law is one of the defining principles of our constitution. It has deep roots in our history, reaching back centuries all the way to Magna Carta and, many argue, beyond. The rule of law is one of the foundations on which both democratic government and personal liberty depend. That is why we subtitled our report Holding the Line Against Tyranny and Anarchy, recognising that the rule of law protects us from both the tyranny of an overbearing state and the mob rule of anarchy. It guards against both extremes.
It is also more than this: the rule of law underpins economic prosperity, facilitating business and trade. In the UK, it contributes to our global reputation, not least because businesses from all over the world choose to have their contracts governed by English law. Given its importance, it is unsurprising that the rule of law is frequently invoked in this House and elsewhere. We proclaim our attachment to it, and we vow to protect it.
But what does it actually mean? The answer is not always straightforward. The rule of law is a slippery concept that is difficult to pin down. It is also beset by complicated academic and political debates about so-called thick and thin conceptions, which differ over whether human rights and international law are part of it. These debates around the definition of the rule of law give the impression that it is a contested idea, but it is deeply embedded as a British value in ideas of fairness, equality and justice.
Some years ago, the noble and learned Lord Bingham made a key set of definitions of the rule of law, on which the committee sought to build. The committee’s view was that the rule of law is perhaps best understood as a culture. People obey the law because they trust that others will do the same. They accept court judgments because they trust the independence and integrity of the judiciary. They engage in business and trade because they trust that contracts will be respected and enforced.
This culture is under strain. Increasingly, people lack confidence in the rule of law. They see increasing amounts of street crime, shoplifting and bicycle and mobile phone theft, but doubt that the offenders will ever be caught or fear that the police will be disinterested in what they perceive to be mostly irrelevant crime. The perpetrators are rarely held to account. Others encounter lengthy delays in the justice system while being faced with prohibitive costs to access legal advice and representation. At the same time, some politicians and parts of the media tell them that judges undermine Parliament and pursue personal agendas. The collective effort is to weaken confidence in the rule of law and the institutions responsible for upholding it.
One area that particularly concerned the committee was the treatment of the judiciary. Judges, both individually and as a whole, have been increasingly vilified in public debate. They are accused of interfering in politics and of deciding cases according to their personal views. This has spilled over into personal attacks and threats to their safety.
These attacks need to stop. That is certainly not to say that discussion and debate of judgment is off limits, but judges should be able to carry out their job without fear of retaliation. Otherwise, there is a threat to the independence of the judiciary. The Government must set the tone in promptly and clearly dismissing misleading information about judgments. They have a duty to defend the judiciary against unwarranted attacks. The Lady Chief Justice in her evidence was particularly strong on the subject, and we agreed with her. I have little time for judges seeking to expand their own boundaries or indulging in judicial activism, but I wholly accept their constitutional independence.
Access to justice is a further essential part of the rule of law. There is no point having laws and rights if they cannot be enforced and upheld. However, we frequently heard about backlogs, delays and difficulties in obtaining legal advice and representation. The Government must take decisive action to improve access to justice and to tackle delays—not the blunt instrument of scrapping jury trials but exploring creative solutions. Technology has an important role to play in realising efficiencies across the justice system such as digitising remaining paper-based processes. Where appropriate, the use of alternative dispute resolution should be encouraged.
We also looked at the role of Parliament. As we all know, parliamentary sovereignty is the supreme constitutional principle, but Parliament also has a responsibility to the rule of law, especially as we carry out our primary role on legislation. Laws should be clear. They should be accessible. They should be capable of being understood by those expected to obey them. Excessive complexity, performative legislation and the inappropriate use of delegated powers all make these objectives harder to achieve. This Government are not the sole Government to be guilty of doing these things. It has happened with previous Governments too, but we should never stop seeking to improve the quality of our legislation and reducing our reliance on delegated powers. We therefore urge parliamentarians to keep the rule of law front and centre when scrutinising legislation—and the Government when drafting it.
The central message of our report is that the rule of law is not just a constitutional principle but the invisible thread that governs our everyday lives. It is most definitely not just the concern of lawyers. It matters to everyone. That is why we should start with children. It should be better taught and understood in schools. This is what enables citizens to challenge power, businesses to invest with confidence, communities to live in peace and democratic government to command legitimacy. These are what count and help to provide stability in a complex world.
We should take pride in the United Kingdom’s long tradition of respect for the rule of law but, as I said earlier, pride must never become complacency. There can be no doubt that the rule of law faces genuine pressures. Those pressures can be addressed, but only if we recognise them and actively choose to defend the rule of law. I beg to move.
“the law ought to be King; and there ought to be no other”.
Two hundred and fifty years on, that is being put to the test every day in the United States; the committee was only too aware of that. As we have heard already, there are passions attached to differing interpretations of the rule of law—the vocabulary of thick and thin—to the extent that it would have been very easy to fall prey to falling into an academic and sterile hole, but we did not. We did debate where the boundaries of the rule of law might fall, but we focused on what the rule of law means as people experience it in their daily lives, and that is why it is important. We also looked at the challenges to the justice system and to Parliament itself. We looked hard at the contract wired into our culture, which has meant that trust in the law to keep us safe has lasted for centuries. But there was no escaping the evidence that this reciprocal culture is at risk. That evidence suggests that disrespect for the law has been emboldened since Covid, with the paradox of draconian legislation that was felt by many not to have been evenly applied.
There is no doubt, as the noble Lord, Lord Strathclyde, alluded to, that the infamous attack on judges as “enemies of the people” some years ago gave a green light for attacks on the independence of the judiciary. We were particularly shocked by the evidence he has already cited, and by the very stark statement of the Lady Chief Justice that judges now need to have “moral courage”. I would say physical courage as well, in light of the evidence.
Secondly, the evidence showed that the culture of trust in the law to work for everyone equally is also fragile. To defeat tyranny and anarchy, justice must be seen to work: to be accessible, effective and fair. It is a truism, but like all truisms it is actually true. The evidence suggests that for many people, this is simply not the case. Our witnesses came from across the spectrum—judges and community activists—and all agreed that free legal advice was virtually invisible in some communities. In the whole of Greater Manchester there is only one law centre for 2.8 million people. Most advice is now limited to information; it does not go as far as legal assistance. That failure is compounded by documented cuts to legal aid; the horrendous waiting lists for the courts, including people who are on remand; the physical disintegration—the decay—of the legal estate; and the growth of crimes that are anything but victimless.
No wonder people feel that the idea of justice is meaningless as far as they are concerned. The system itself feels disempowered. Part of the problem is that the law is not taught early enough, widely enough or broadly enough. Our recommendations address all these issues. I have alerted the Minister to a specific question: what happened to the Legal Support Strategy Delivery Group, which was set up by the MoJ?
For this place, the most profound question is: how confident can we be in our own future as the bulwark against tyranny and anarchy? The Victorians were better informed about Parliament than we are. What has happened to the political reporters or the serious commentators? They have virtually disappeared. Do Members of Parliament, or we in this House, know enough about the constitution, the legal system and what constitutes legal certainty, to be clear where the risks are? Do we know who is accountable for safeguarding the constitution? Do our laws stand the test of the basic requirements: that they should be clear, accessible, prospective, predictable, possible to obey, free of conflict? Does Parliament use its power to interrogate Ministers and to hold them to account? If I were marking this paper, I would give the House a C+ at best.
The volume of legislation is only one issue. Take pensions regulation; it has grown from 3,000 pages to 165,000 pages since 1990. Worse is the sheer complexity, which defeats even the most distinguished lawyers. I think with fear of the forthcoming legislation on leasehold reform. The loss of Keeling schedules, the delays in implementing consolidation, and the accumulative legislation required to correct and revise mean that few can find meaning, let alone definitive meaning. On the other hand, equally dismaying are skeletal Bills that evade interrogation, and careless delegation that hides decisions and cannot be changed. These are serious and familiar charges in this House—this is our special subject. We need not to debate more but to act now. As the report emphasises, Parliament must take its constitutional responsibilities seriously and, I add, visibly.
I return to Tom Paine, who said that
“the Constitution of England is so exceedingly complex, that the nation may suffer for years together without being able to discover in which part the fault lies, and every political physician will advise a different medicine”.
He was right about the constitution but would be wrong about our report, because it was very clear in its diagnosis and prescription. We are seeking not to blame but to identify and incentivise responsibility for ensuring that the rule of law is not an abstract construction but is positively promoted in every respect.
As we have heard, judicial independence is undermined when judges are attacked personally for a decision or their integrity is impugned. An expression of disagreement with the outcome of a case is entirely unobjectionable, but the growth of personal vilification—in which, regrettably, from time to time politicians have joined—crosses the line into a direct assault on the independence of the judiciary. Examples are multiplying. Even this week, a High Court judge was accused by disappointed litigants of a “complete and obvious whitewash”. Judges speak through their judgments and cannot answer back. That is why the Constitutional Reform Act imposes duties on the Lord Chancellor to defend the independence of the judiciary.
The committee recognised that:
“A culture of hostility towards the judiciary has been allowed to develop in recent years because of inappropriate, and often inaccurate, public criticism by politicians”,
and others, with
“inadequate defence from government”.
We distinguish in the report between discussion and debate about judgments and personal attacks on judges or the judiciary as a whole. As the noble Lord, Lord Strathclyde, has noted, such attacks should stop. Importantly, we added that Ministers, particularly the Lord Chancellor, must speak out in defence of the judiciary when it comes under attack. It needed saying, and I fear that obligation will become more onerous as time goes by.
The very existence of a functioning courts and tribunal system, with an independent judiciary, means that most disputes are sorted out before lawyers are involved and before proceedings are threatened or issued, and even when issued, many are resolved without a final determination. But cases which need final resolution by the courts must be capable of being heard in a timely fashion. Timeliness, at least in my opinion, is more important than a fixation on outstanding case numbers.
Now is not the time to talk about the difficulties in the criminal courts. We may yet get an opportunity to do so—or maybe we will not. My views are well known and do not align with the centre of gravity of legal opinion, but my short point is a general one. When Parliament legislates, with the result that new rights and obligations are created, government must ensure that the relevant courts and tribunals are ready to deal with the increased caseload. The late Lord Etherton raised this issue powerfully with respect to the significant changes found in the recent renters’ rights legislation, both as passed and as originally proposed by the last Government. Similar points have been made regarding the employment rights legislation. It is doubtful whether the courts and tribunals that will deal with the resulting disputes can do so in a timely fashion. Legislation and legislating are not the end of the story. If the rights created cannot be readily and quickly enforced, they may turn out to be hollow.
The committee is equally clear that no individual or institution is beyond scrutiny. The conviction of Peter Murrell for embezzling more than £400,000 from the SNP is an example which reminds us vividly of the consequences of the failure of internal governance. This case exposed the prolonged weakness of accountability and oversight in one of our largest parties in Scotland and, with the more recent revelations of over £1 million missing from the Yes Scotland campaign, there is sadly more yet to come. An organisation where the leader and chief executive are a married couple, where anyone who raises questions—as people did—is summarily dismissed and where accountants resign in protest, is an example of the failure of the rule of law. The rule of law depends on transparency, independent oversight and the confidence that wrongdoing will ultimately be exposed, but that is not yet the case in the SNP scandal.
The committee’s most important message is that there is a difference between demanding better of our institutions and encouraging the public to lose faith in them, and that distinction really matters. When police make mistakes, they are investigated. If political parties fail, we should seek to reform them. If Governments overreach, Parliament should take them to task. Those are not signs that the rule of law has failed; they are actually evidence that the constitutional safeguards are working. The real danger is when political leaders suggest that the whole system is irredeemably corrupt or biased. Once confidence in democratic institutions is lost, it is very difficult for it to be rebuilt.
In this country, two of the threats to our democracy are, first, dark money—Russian, of course, but also from the USA, as we heard it in a Statement earlier today—influencing our politics and secondly, sadly, increasing disengagement in elections and politics, particularly among young people. That is why elsewhere, later on in this Session, I will be arguing that we should be closing loopholes in our electoral finance laws—we heard that again earlier today—and I will be supporting the introduction of compulsory voting, which has proved so successful in Australia. The most recent example of a crypto billionaire giving Farage £5 billion is not an isolated case, but it reminds us that there is a real danger of very rich people, both at home and overseas, taking or trying to take control of our democratic institutions unless we take urgent steps to avoid it.
To return to the report, it is about not just constitutional law but constitutional responsibility. It reminds us that the rule of law is sustained by institutions that are accountable, by Parliament exercising effective scrutiny, and by political leaders choosing responsibility over rhetoric. Recent examples—the exploitation of the Henry Nowak case by Reform, the Green Party’s failure to scrutinise candidates, and the corruption and lack of transparency of the SNP—show in different ways how confidence in our constitutional settlement can be weakened. However, the answer is not to diminish confidence in our institutions but to find ways, as the report says, to ensure that our institutions are transparent, accountable and worthy of trust, while resisting those who seek to turn any failures into evidence that the rule of law itself has collapsed. That, the report says, is the road to tyranny and to anarchy, which we must resist.
I will make three short points and, although I endorse everything that has been said, I will not repeat what has been mentioned so far by colleagues. First—and this reflects something just spoken to by the noble Lord, Lord Foulkes—there is a terrible cliché about at the moment that everything is broken in this country. Whenever we say that, we give succour to our enemies, both abroad and at home. The rule of law is not broken here. That is not to say that we should not be very careful to identify where new threats may come from, as this report does, and where corrections to present failings should be undertaken. But let us have enough of that cliché. We have the rule of law and we must protect it.
Secondly, for most of the last century, when civilisation faced destruction, either by Hitler or by Stalin, most attention was perhaps paid to the rule of law’s guardian against tyranny. Big Brother was the most potent fear, and it was a reasonable one. The danger of tyranny remains, of course, and a very real danger it is in much of the world. But now we must also watch for the other danger: anarchy. The irony is that our far bigger state has not become an all-powerful Big Brother. Can we really imagine that any of our departments of state would be as efficient as the terrifying departments in George Orwell’s book? I do not think it would actually work; it might even be described as being broken. The point is that as the state has become bigger, the paradox is that it has also become weaker. It has become an enormous juggernaut with its wheels stuck up to the axles in mud. We face that paradox—an enormous state which cannot plausibly reassure its citizens that it knows how to carry out its two central tasks: defence against foreign enemies and satisfactory maintenance of the law for ordinary people at home. It is the report’s concern for maintaining the confidence of ordinary people in the rule of law to which I want to add a little more colour today.
To quote the then Lord Chancellor and present Home Secretary when she was giving evidence to us, we cannot accept a situation where there
“is a sense that someone came in, robbed a shop…and absolutely nothing happened”.
When I asked her if she thought that the illegal arrival of small boats on our shores without apparent consequence undermined respect for the law, she answered yes—and she was right. There is beginning to be a real anxiety that elements of the rule of law are a bit of a bluff.
All is far from lost, though, and the splendid report by the noble Lords, Lord Blunkett and Lord Herbert, will greatly help to strengthen the police if it is followed through. It is vital that the ordinary citizen understand that the state has not backed off from its fundamental duty to face down criminality, big or small, at home as well as abroad.
Thirdly, the rule of law is based on consent, or at least acceptance. Law long precedes democracy, but without it, in Lord Sumption’s words to the committee, society is
“simply a fight for the more effective deployment of force”.
Consent or allegiance means understanding of and acceptance of the process by which laws are made.
For us, it is Parliament and the ancient and subtle generation of common law. That is why there is a problem with, for example, the ECHR. It is not that the judges are wicked or that all the judgments are bad; many are easily accepted as excellent. The problem is that the citizen’s consent is not embodied in the process by which those laws are developed. There is not—or not yet, at least—a genuine community of Europe which lies behind that body of law in the way that England, Scotland and the whole of the United Kingdom lie behind our law. When the convention stops this Parliament doing things that the people want, people do not understand why.
Now we face an expansion of jurisdiction by the International Court of Justice. The noble and learned Lord, Lord Burnett, has written powerfully about this. That is going to drive us mad if we are not careful, and will face us with the same problems. Those who raise these issues are not against the rule of law or the rules-based order in the world; we are warning and anxious that if we simply sign to courts and laws which our people feel do not embody their own feelings then we will end ourselves in difficulty. It is very difficult to leave these things, but it is not a criticism of the rule of law to raise questions about those issues.
The UK remains a bastion of the rule of law. It is well defended by the outstanding practitioners who appeared before our committee, but it is a bastion whose defence we should never take for granted.
Secondly, the rule of law is not merely an abstract concept or a legal doctrine but the constitutional condition upon which our entire democracy depends. It is not, as some ill-informed commentators like to imply, an impediment to effective government. On the contrary: it is the condition that gives government its legitimacy. At a time when democratic institutions across many countries face increasing pressure, it is more vital than ever that the people have confidence that power is being exercised lawfully, transparently and accountably. The rule of law is universal, and nobody is above the law. The Government are subject to the law, just as any citizen is—as several recent cases heard in the Supreme Court have rightly reinforced. Liberty is secured not by the exercise of power but by its restraint through the law. Let us hope that we do not have to encounter an extremist Government here in Britain. We see extremism growing elsewhere right now. Upholding the rule of law—I argue that having this debate is part of that process—is our defence against extremism. The Government cannot bully the people.
Thirdly, as the noble Lord, Lord Strathclyde, mentioned in his excellent introduction to our debate, the committee considered Lord Bingham’s first principle:
“The law must be accessible … intelligible, clear and predictable”.
The report expresses concern that legislation has become increasingly lengthy, technically complex and dependent on delegated powers. We are legislators, and we have a duty to hold the Government to account to bring the laws we are making more in line with Lord Bingham’s principle.
Well over 200 years ago, the great William Pitt said that
“where law ends, there tyranny begins”.
I hope that this report and this debate go some way to drawing general attention to that universal and timeless truth.
Now, why should we bother to learn from elsewhere? We have our long traditions and our conventions. We have the Constitutional Reform Act; its author, the noble and learned Lord, Lord Falconer, is here. So we say, “Why bother?”, but I think we should. I will look at four matters.
First, the area where we really do need action, and where the report underlines the need for action, is communications. The Judicial Office’s press office was set up by the noble and learned Lord, Lord Woolf, with the help of Sir Hayden Phillips, just as the Act came into existence. But there is a need to keep it up to date. The media has changed beyond all recognition and therefore I strongly endorse what is said at paragraph 123 of the report in the message it sends to government and the judiciary. The Government, it appears from paragraph 36, have got the message. I hope the judiciary will get it too, because it must appreciate that if it does not take responsibility for the way it communicates, someone else will do it for it. It is an important lesson that must be learned.
The second is the effective and timely running of the courts. Resources play an immense part in the way in which you can administer justice. But judges have a responsibility too—a responsibility from which they cannot run away. They need to put right things that are wrong or systems that do not work. Here, the Constitution Committee, maybe not in this report, but generally, has played an important role by holding judges to account for anything that has gone wrong in the courts. That holding to account is extremely beneficial because it enables the judges, in a neutral forum, as Parliament is for them, to point out what the problems are, which so often are a lack of adequate resources. Here is an important role of the Constitution Committee.
The third matter to which I wish to refer is protection against attacks on judges. The report is more than 100% correct—if there is such a concept—at paragraphs 112 to 114 in drawing attention to this. But it is important that restraint is shown by everyone concerned. The judges have to be as careful as media magnates and Cabinet Ministers should be. It is a very important principle. If there are mistakes made, you put things right quickly, as has been done so successfully by the Lady Chief Justice in recent weeks, and people can see that. Those are things where the Constitution Committee sends an important message and has an important role.
I will touch briefly on other areas where I think we should be careful. First, on appointments, the JAC is extremely important, but its role is not properly understood, and the first step of any Minister who wishes to subvert the judiciary is to get control of appointments. We need to make certain that the appointments commission is strong. Secondly, on discipline, by the system that was devised for disciplining judges, we have shielded ourselves from the accusation that people such as Mr Berlusconi could make—that the judges look after themselves. But the operation of the system needs careful monitoring. The third is self-governance of the judiciary. I strongly welcome what is in the Bill, which I hope will be taken forward at least in this respect, to bring together the courts and the tribunals. It is important that the judiciary is unified.
What conclusion should we draw as to the role of the Constitution Committee? I hope it can, over the years, keep an eye on the examples we see elsewhere and on the matters on which we need to keep an eye. It is very important that, when the heads of the judiciary and Ministers come, a health check is made of each of the aspects that safeguard the independence of the judiciary. Perhaps I could persuade the noble Lord, Lord Strathclyde, and his successors to take up this role, because vigilance, as has been said so strongly, is absolutely essential. We need not merely to say it, we need a mechanism, and that mechanism should be the Constitution Committee.