Rule of Law

Many in this House have very kindly welcomed me in the context of knowing my parents. If the Times diary column is to be believed, I and my mother are the first mother and daughter Peers. If nothing else, we are destined to live on in pub quizes for ever. I am very proud of both my parents and it is a privilege to bask in their reflected glory, but only for a while. I hope that this House will find space here for me to be me, not just my parents’ daughter. I believe I am here because of a hard-earned legal career, which included taking Silk, sitting as a judge in various fora and earning the respect of my profession over many years. I will contribute to this House as a product of that, with my own thoughts and beliefs guiding me. So, if I may gently encourage Members to call me Catherine, not Elizabeth—nor indeed Sarah—I can seek to forge my own way here and in time, I hope, earn your Lordships’ respect as an individual.

I also wish to acknowledge my second supporter, the noble Baroness, Lady Kennedy. The law is so much more than the black letter of it. It is a tool with which to change and improve lives, and indeed whole nations, as we will discuss today. Using the law as a campaigning tool for the greater good is something the noble Baroness, Lady Kennedy, is a past master at.

I turn to the rule of law. The rule of law is sacrosanct; it is the bedrock on which democracy sits. As the Attorney-General explained in this Chamber, the rule of law will serve as this Government’s lodestar. I will begin by mentioning the principal aspects of this Government’s position, looking at international law, human rights and the constitutional role of Parliament and the courts, before concluding by highlighting the importance of the rule of law in the context of devolution in Scotland.

This Government are clear that the rule of law encompasses international law. This Government will, without question, honour our obligations under international law and promote the rule of law internationally. The Prime Minister has already taken action through the publication of the new Ministerial Code, which reinserts express reference to the duty of Ministers to comply with international law and treaty obligations. Compliance with international law is not only the right thing to do morally; it also upholds our international reputation. That in turn enhances our ability to work with partners to address global challenges, whether they are climate change, artificial intelligence, migration or economic growth. We have made plain our commitment to our cornerstone international institutions, which the UK will once again champion.

These institutions are fundamental to ensuring justice for people with no other recourse. I have seen first hand the immense challenges to the rule of law in other countries through the work I have done in the NGO and charity sectors. I have been visiting Ukraine since 2004, when I first met Martin Harris, our ambassador there, working on projects promoting the rule of law. Both the Attorney-General and I have been to Ukraine in the last year, speaking to lawyers about how the UK can seek to support them, including through our commitment to the rule of law.

This Government are equally clear that the protection of human rights is an essential element of the rule of law. We are fully committed to complying with our obligations under international human rights law. This includes our unequivocal commitment to the European Convention on Human Rights—to which the UK was the first signatory, a fact we should be proud of—and to the treaties we have ratified in the United Nations. Domestically, the Human Rights Act is an important part of our constitution and fundamental to the rights protection of everyone in the UK. It is thanks to our robust domestic human rights framework that, out of 46 Council of Europe member states, the UK has the lowest per capita rate of applications to the European Court of Human Rights.

I will now acknowledge the importance of respecting the constitutional balance between Parliament, the Executive and the courts. Parliamentary sovereignty is a fundamental feature of our constitution. Parliament must have a proper opportunity to scrutinise the actions of the Government, and a proper balance between primary and secondary legislation is vital. In a modern, regulated society, secondary legislation is crucial to efficient government, and it absolutely has its place. However, the UK’s withdrawal from the EU and the Covid pandemic resulted in concentrating immense power in the hands of the Executive. As the Delegated Powers and Regulatory Reform Committee pointed out, this represented an acceleration and intensification of an existing trend.

This raises real questions about how we are governed. As a Government, we will seize the opportunity to reset our approach, respecting the constitutional role of Parliament. We, the law officers, will ensure that the Government’s legislation is accessible, clear and predictable and reflects the correct balance between primary and secondary legislation. To this end, the Attorney-General has already issued new guidance on the appropriate use of secondary legislation in government Bills.

In the courts, our judges are rightly respected around the world for their expertise, impartiality and independence. Judicial independence is a prerequisite of the rule of law. This Government and our Lord Chancellor will robustly and swiftly defend any attacks on this from any quarter.

I will conclude with some comments on the rule of law in the context of Scottish devolution. I believe that the rule of law underpins the success of the settlement through the promotion of effective collaboration between the UK and Scottish Governments, and the mechanisms for clarification by the courts where necessary. As a Parliament, I believe we should be incredibly proud of an excellent piece of drafting in the Scotland Act, which has stood the test of its first 25 years. Deliberation in this Chamber was fundamental to that.

Since the Scotland Act’s debate and passing in 1998, we have seen political change that many would not have predicted then: a majority Government in Scotland—indeed, a nationalist majority Government; a referendum on independence; 17 years of different political parties being in power in the two Parliaments; and not to mention the UK’s withdrawal from the EU. During this time, the Scotland Act has governed the relationship between the UK and Scottish Governments, such that these seismic constitutional events have been well managed and, in the main, handled with respect. Indeed, it is important to acknowledge the collaboration that regularly occurs between UK and Scottish Governments, underpinned by a common respect for the rule of law.

My department works constructively and effectively with counterparts in the Scottish Government on numerous issues on a daily basis, achieving consensus under the radar and away from the headlines. By way of example, the new devolved pension age disability payment in Scotland will sit properly in the mixed reserved and devolved benefits regime because of technical changes delivered through a Scotland Act order made by the UK Government in October. Scotland’s two Governments working together to put in place a coherent legislative framework, in accordance with the rule of law, for the benefit of the people—this is what a resetting of the relationship looks like in practice.

I particularly look forward to working together effectively with the Lord Advocate and Solicitor-General for Scotland. Indeed, in the vein of collaboration, may I take this opportunity to congratulate the noble and learned Lord, Lord Keen, and the noble Lord, Lord Wolfson, on their appointments as shadow Advocate-General for Scotland and shadow Attorney-General? I look forward to working constructively with them as well.

The rule of law is also fundamental to resolving questions regarding the construction of the devolution settlement. I have heard it suggested that the litigation we have seen in this area is indicative of a failure in the devolution architecture; indeed, some describe it as broken. I strongly rebut that suggestion. Litigation is, in my view, further evidence of the devolution settlement working well. The drafters of the Scotland Act had the foresight to include powers for law officers of the UK and Scottish Governments to refer questions regarding the competence of the devolved institutions for judicial determination. As acknowledged by the Supreme Court, the actual practice of the UK and Scottish law officers has borne out that the reference procedures have been exercised in the public interest. Far from being symptomatic of a system that is broken, judgments of the court have helpfully clarified the Act; and, looking at it another way, one might think it odd if those mechanisms had never been used in 25 years. For example, the Supreme Court has confirmed that the Sewel convention is a political convention, not a justiciable legal rule. This Government’s commitment to strengthening the Sewel convention will be taken forward consistent with that position.

In respect of Acts of the UK Parliament, the Scottish Parliament has granted consent in respect of over 200 Acts. The number of occasions when this Parliament has legislated without consent that has been sought is fewer than a dozen, and the majority of those occasions concerned the withdrawal from the EU, a fraught and complex legislative event that might well be thought to be very far out of the ordinary. In terms of Acts of the Scottish Parliament, 368 have been enacted since devolution. The UK Government law officers have referred to the Supreme Court the question of whether a Scottish Parliament Bill is within competence only three times.

This picture I have set out demonstrates that the Act is operating as it ought to in a mature democracy—working well day to day but containing provision for the limits of the settlement to be tested, and those provisions being used appropriately from time to time.

Lord Bingham described the rule of law as one of the greatest unifying factors—perhaps the greatest—and as an ideal worth striving for, in the interests of good government and peace, at home and in the world at large. This most elegant formulation cogently demonstrates why the rule of law will serve as this Government’s lodestar, there for all to see.

I look forward to hearing noble Lords’ insightful contributions and I beg to move.

“it is more proper that law should govern than any one of the citizens”.

It would explain that, far from being some abstract constitutional principle—because that is what the rule of law is; it is not a law but a foundational constitutional principle—the rule of law underpins not only our politics and civil society but our commercial endeavours too. If the huge glass panels of the City’s skyscrapers are held together by invisible building materials, the financial markets and stock and other exchanges are held together by the rule of law.

In my own practice as a commercial lawyer— I declare the obvious interest—the rule of law is one of the reasons why litigants and commercial parties from all over the world choose to have their disputes determined in London. They come here not only because, as the Advocate-General said, our judges are independent and of unimpeachable integrity—though they are. They come here not only because our legal profession is of the highest calibre—though it is. They come here not only because English law, and perhaps also Scots law, has kept pace with the modern world—though it has, through the Law Commission and through legislation passed in this place. Ultimately, they come here to our courts because they know that the UK is a country governed by the rule of law.

What is the rule of law? At its heart, the rule of law means that the state is governed by laws and that everyone in the state, and the state itself, is subject to those laws. The core features of the rule of law are not now in doubt. They include that everybody is subject to the same laws; wealth, power, status or privilege provide no special protection. Governments and public officials are subject to the law. They must exercise their powers lawfully. The law must be accessible and clear. Disputes should be determined by independent courts and tribunals. A vibrant and independent legal profession is necessary to promote liberty under the rule of law. Without the rule of law, underpinned by an independent judiciary and the courts, much else would fail to prosper. It is one of the foundations that supports economic activity, wider prosperity and a settled society. In short, the rule of law, independent courts and an independent judiciary are not optional extras or simply a service, but one of the foundations on which everything else is built.

I want to make three points about the ambit of the rule of law. The first is as to what is encompassed by it. We have heard Lord Bingham’s name mentioned already, and I suspect that we will hear it many more times. Of course, he wrote a book on the subject, The Rule of Law, published in 2010. If you entitle your book, “The Rule of Law”, people will think that is what it is: the rule of law is what he says it is. I read with interest the recent lecture given by the noble and learned Lord, the Attorney-General, at the Bingham Centre, which is named after him. However, Lord Bingham’s view of the rule of law is a very expansive or “thick” view. It is not shared by many others. To give just one example, his view is very different from that of Sir John Laws, the Government’s senior barrister or “Treasury devil” for eight years and then a Lord Justice of Appeal, in his book, somewhat less attractively titled The Constitutional Balance.

The problem with Lord Bingham’s expansive view of the rule of law, as Professor Gardner wrote in a trenchant review in the London Review of Books, is that it includes within the rule of law

“the full range of human rights: not just those ensuring due process of law for all, but also those concerned with … life, privacy, association, property and assembly”.

On that approach, it is very hard to leave logical space for regimes that respect the rule of law but are otherwise notably illiberal; for example, they forbid gay relationships or organised religion. I would not want to live in a country like that, but is it right that such a state would not have the rule of law? Where you end up, as Professor Gardner put it, is the conceit that

“no country has the rule of law unless it would be morally suitable to join the Council of Europe”.

We do the rule of law a disservice if we try to cram within it any and every social good. Not every social good is a human right, and not all human rights are part of the rule of law. The rule of law with its traditional limits is important enough in itself. It does not need to encompass or express every conceivable legal or social good.

I now turn to international law, because the rule of law applies in the international arena too. International law is law and, just as we should obey domestic law, we as a state should abide by international law. That does not mean we should fetishise international law. It might sometimes be not very good law and might often require updating for a different world, but all that can be true of domestic law as well. Yet it is remarkable how those who, quite rightly, feel able to criticise domestic law, although they will continue to obey it, suddenly regard any hint of a suggestion that this or that point of international law might not be totally perfect as an immediate challenge to the rule of law and an affront to the international order.

Criticising a law is not a challenge to the rule of law. That is true of domestic law and it is also true of international law, especially when we are told that what we all believed to be customary international law has now suddenly changed to whatever certain lawyers close to this Government would like it to be—a process we might call the shifting sands of international law. Nor is it a challenge to the rule of law to make submissions to an international court, urging it not to do something it was minded to do. The previous Government informed the ICC that they would make submissions to the effect that it had no jurisdiction to issue the arrest warrants against Prime Minister Netanyahu and former Defence Minister Gallant, with an already-dead Hamas leader thrown in, in some grotesque form of moral equivalence.

But almost the first act of this Government was to announce that they would not make any submissions to the ICC. Why? The explanation from the Prime Minister’s spokesman was that

“this is a matter for the court to decide on”,

going on to say:

“The government feels very strongly about the rule of law internationally and domestically”.

As a reason for not making submissions to a court, that is risible. To paraphrase Mrs Thatcher, advocates advocate and judges decide. You do not offend a court, or the rule of law, by making submissions, especially if the court has invited those submissions. Perhaps the noble and learned Lord the Attorney-General will explain whether he thinks Germany, which did make those submissions to the ICC, thereby demonstrated that it did not feel very strongly about the rule of law?

Just as we should be careful not to expand the rule of law to include any and every social good, we should also not abuse the concept of the rule of law by dressing up what are essentially political decisions as legal issues. Perhaps if we had made submissions, the ICC would not have reached the legally doubtful—at its highest, I suggest—decision that it reached. But it issued those arrest warrants, and another element of the rule of law is that people need to know what the law is and what the rules are. I did not get a clear answer from the Minister when I asked her just after Questions whether Mr Netanyahu’s immunity, as the serving Prime Minister of a state that is not a party to the ICC, precludes his arrest and handover to the ICC.

That immunity—this is critical—is specifically preserved in our domestic law in a UK statute: the International Criminal Court Act 2001. The Minister told me earlier that there is a conflict between that statute and customary international law, and that it is up to the court to sort it out. On the basis, as I was told this afternoon, that the Government’s position is that this entire question comes down to a “conflict” between an Act of Parliament and customary international law, will the noble and learned Lord the Attorney-General confirm that, in this jurisdiction, a domestic statute always prevails over unincorporated customary international law? If that is right, will he therefore agree that Mr Netanyahu retains his immunity? I appreciate that the final decision on this question will be a matter for the High Court, but the Government must have a position on this issue, and I look forward to the Attorney- General telling us, finally, what that position is.

The third and last feature of the rule of law that I want to mention is equality before the law. This is a fundamental principle. All people must be treated equally and in accordance with the law. We all know the phrase: justice must not only be done but be seen to be done. That applies not only in court but, I suggest, across the entire justice system.

We are rightly proud that we live in a country where we are policed by consent—where our police are not routinely armed. But to maintain public confidence, which is critical, we must ensure that the police not only do their work without fear or favour—as I am sure they do—but are perceived to do so.

I have spoken before about my astonishment that a sign calling for jihad on the streets of London was regarded by the police as not requiring any further investigation. Last week’s Jewish Chronicle reported that a sermon that called for the destruction of Jewish homes and was delivered two weeks after the 7 October massacre was originally not deemed by the Metropolitan Police to meet the criminal threshold, once the context— I emphasise “the context”—was taken into account. After something of an uproar, the police have said that they are now reviewing their earlier decision.

I am well aware of the difficult job that the police have. We on this side of the House—and, I am sure, all of us on all sides—support the police in the work they do. But to maintain public confidence, we need to make sure that justice is done and seen to be done. That applies from the moment when there is a knock on the door by a police officer, right up to the handing down of a sentence by a judge.

I know that the noble and learned Baroness the Advocate-General and the noble and learned Lord the Attorney-General might not agree with everything I have said, but I will conclude with a point that I am sure will command universal support: the rule of law is too important to be left to party politics. Some on the right deride the left for confusing the rule of law with the rule of lawyers. Sometimes, that is a fair criticism. The rule of law should not be a fig leaf to cover up contested policy decisions. Using law as a way of avoiding political debate risks undermining the rule of law. Some on the left—as we heard from the Lord Chancellor and the noble and learned Lord the Attorney-General at Labour’s party conference—like to say that

“the rule of law is back”.

Perhaps this debate is part of that supposed narrative, but we in this House know that their immediate predecessors, Alex Chalk and Victoria Prentis, also firmly believed in, and unflinchingly upheld, the rule of law. This ought not to be a party-political point.

The truth is that we all need the rule of law, and we all want to live in a society governed by the rule of law. It is too important to become a political football. We must all defend it, or we will find that we have lost one of the critical—if often invisible—elements that holds our entire society together.

“the rule of law requires compliance by the state with its obligations in international law”.

The Cabinet Office set out HMG’s legal position in 2020. The then Government argued that treaty obligations become binding only to the extent that they are enshrined as a matter of domestic law. It was claimed that there was nothing unlawful in Parliament passing legislation that was in breach of the United Kingdom’s obligations. The Constitution Committee rejected that argument in its ninth report of 2022-23, to which I was a party, stating:

“Whatever Parliament decides to do does not affect whether the state is in breach of international law … A treaty, once agreed, binds the state … the responsibility of the Government to honour the state’s international obligations requires it to refrain from inviting Parliament to legislate knowingly contrary to the United Kingdom’s international obligations”.

Parliamentary sovereignty is the foundation of our domestic law, but it is not the overarching, unbridled principle that is commonly claimed by political parties when they are in power. It is subject to constitutional principles: in particular, to the principle that a Government should not legislate to break international law. Indeed, the Ministerial Code is explicit in paragraph 1.6, which refers to

“the overarching duty on ministers to comply with the law, including international law and treaty obligations”.

The Rwanda Bill was another attempt to violate our international obligations, specifically the refugee conventions and the European Convention on Human Rights. The proposal was to bar access by asylum seekers to the courts of this country, contrary to Lord Bingham’s fifth principle of the rule of law and Article 6(1) of the European Convention on Human Rights.

The granting of an interim order by the European Court of Human Rights, which in effect prevented the removal of asylum seekers to Rwanda, had the originalists leaping snarling from their den. Originalists are those who deny that the European convention is a living instrument. The majority view is that the convention should develop through case law: modern remedies for modern problems. Society changes. Attitudes towards the status of women or towards gay rights have changed in the seven decades that have followed the signing of the convention. In the area with which I have a particular concern, military justice, the case of Findlay in the European Court set in train changes to the scope and procedures of military law in a way that the 1950 founders could never have foreseen.

As for the European Court’s interim order in the Rwanda case, it was in the 1970s that rules were made by the court, specifically rule 34, which required member states not to hinder the rights of an individual to make applications for relief to the court. You may well think that whisking Africans off on a one-way ticket to Rwanda would be something of a hindrance to such an application, and indeed a judge of the court, faced with an application by an asylum seeker, made an interim order under rule 39 to delay the flight. In due course, the UK Supreme Court ruled the proposed dispatch of asylum seekers to Rwanda to be unlawful and further European court proceedings were unnecessary.

“These European court rules were made in the ‘70s”—so wail the originalists. The scope of the European Convention on Human Rights, they say, should be confined to the powers explicitly agreed in 1950. “Do not look beyond the 1950 text, as illustrated by the preparatory papers of the time”. This argument was expounded by Professor Ekins of Oxford University in the unlikely forum of the Atkin Lecture in the Reform Club, of all places, and it has been supported by the noble Lord, Lord Wolfson of Tredegar.

Originalism is a right-wing doctrine developed in the past 40 or 50 years in the United States of America. It has found its way into the United States Supreme Court. It will not surprise noble Lords that four of the six Supreme Court justices who granted full presidential immunity to Donald Trump recently are self-confessed originalists. They believe that the US constitution should be construed as originally drafted and understood by the Founders in 1789. But somehow I doubt that Alexander Hamilton, Benjamin Franklin, Thomas Jefferson and the rest of them would have been natural Trumpsters in their aspirations.

This odd, fossilising theory of interpretation has crept across the Atlantic to this country, probably through the secret funders of the Tufton Street think tanks. That may be the reason why the recent Conservative manifesto referred to the European court as a “foreign court”—a phrase repeatedly on the lips of Rishi Sunak during the recent campaign. It is a sad withdrawal from the ideals promoted, paradoxically in 1950, by the Conservative Sir David Maxwell Fyfe, later Lord Chancellor and the Earl of Kilmuir, and developed by British judges of the court.

My final point is that, if parliamentary sovereignty and executive government are to be subject to the rule of law, an independent judiciary is essential. Your Lordships may not fully realise the necessity of an impartial court, but I have had the experience of appearing in a foreign court in an action brought against my client by the premier of the country in question. My apprehension, whether right or wrong, that no submission I made could possibly succeed before that court induced feelings of utter frustration. I was wasting my time. Subsequently, success in the Privy Council in a linked case on behalf of the same client was followed within three months by the withdrawal of the country concerned from the jurisdiction of the Judicial Committee for ever. That Government said there was no connection between the two things.

I look forward eagerly to a commitment by this Government that the United Kingdom will observe the rule of law in all circumstances, that the independence of the judiciary will be properly defended, that Parliament will no more be invited to break international laws and treaty obligations—even in “a very specific and limited way”—and that they will maintain our good name as a country abiding by the rule of law in an increasingly lawless world.

As the noble Lord, Lord Wolfson, mentioned, this reflects the fact that the concept of the rule of law antedates by many centuries our present concepts of protection of human rights. Indeed Aristotle wrote about this in the fourth century BCE, as the noble Lord said. Again, as of the previous questions I posed, I think one must question whether the current state of the resources for the courts for the adjudication of these claims is adequate to satisfy our obligations as a country under the rule of law.

Before I turn to the next item, which should be the question of human rights, it is important that I address the rule of law as an international standard. In a report to the Security Council of the United Nations in August 2004, the then UN Secretary-General said:

“The ‘rule of law’ is a concept at the very heart of the Organization’s mission”.

In September 2015, the UN agreed a set of sustainable development goals for 2015 to 2030 that came into force in January 2016. Goal 16.3 enshrines a commitment by all UN members to:

“Promote the rule of law at the national and international levels and ensure equal access to justice for all”.

In March 2016, the Council of Europe’s Commission for Democracy through Law, known as the Venice Commission, published a rule that said:

“The Rule of Law is a concept of universal validity”.

The setting of UN SDG goal 16.3 to

“Promote the rule of law at the national and international levels”

underlines that the concept of the rule of law must be appropriate as an international standard capable of applying to different countries with their varied histories, cultures, constitutions and political engagements. The concept of the rule of law is rightly applied as an international kitemark of minimum standards. It is therefore used both to criticise and to encourage improvement in failing regimes.

There is not any one court which adjudicates on human rights across the world, however. Many courts adjudicate in relation to different concepts of human rights in different countries. That is why although there is, inevitably, some overlap between the rule of law and some human rights, such as the right to a fair trial before an independent tribunal according to known laws, which provide the measure of constraint against official corruption, that overlap is quite different in principle from the notion that the rule of law requires the promotion or protection of human rights generally. I agree with noble Lord, Lord Wolfson, that this thin edge—as it is called—or thin version of the rule of law is consistent with the checklist appropriate for an international concept of the rule of law and is also supported by the position of the Venice Commission in a report in March 2016.

There is here an area in which the United Kingdom, with its long history of the rule of law and human rights, can take a lead in bringing about a consensus as to the most essential human rights in a democracy, perhaps centred on the Universal Declaration of Human Rights. At the same time, however, as I have said, the United Kingdom itself must improve its adherence to the rule of law by increasing the available facilities and resources for resolving disputes between citizens and between citizens and public bodies. I hope that the Attorney-General’s welcome initiative on the rule of law addresses these important points.

I could give many examples of rule of law arguments that have meant that a Government democratically elected, of whatever colour, have found it extremely difficult to govern. I think of the problems the Blair Government had in trying to combat the threat of terrorism and finding that their policies were unlawful. The Conservative Government of course ran into all sorts of difficulties when trying to combat illegal migration. This culminated in the Supreme Court holding that the Rwanda scheme was unlawful. There were legitimate grounds for opposing the policy, but they were, in reality, far more political than legal.

A low point for me was when, in the dying days of the last Government, your Lordships’ House was considering legislation to impose regulation on the internet to combat the anti-competitive and monopolistic practices of big tech. Cross-party amendments were put down, but we were met with the argument—no doubt advanced by government lawyers—that undermining Google’s position would be contrary to Google’s human rights and thus, in effect, contrary to the rule of law.

Decisions in the Strasbourg court about the environment and the decision by an unnamed judge in respect of interim orders under the Rwanda scheme are just a couple of recent examples of where the Strasbourg court has come to conclusions that are at variance with what most people would regard as the core principles of the rule of law. I do not regard this as an originalist view, incidentally. The influence of Strasbourg and the Human Rights Act is the subject of a powerful paper by Policy Exchange, The Impact of the Human Rights Act 1998 in Twenty-Five Cases.

When I chaired the Independent Review of Administrative Law a few years ago, I think that many thought that the panel would recommend the complete abolition of judicial review. This was of course never a possibility, although we did conclude that there were occasions when the courts had strayed into political areas. However, at the centre of the panel’s analysis was the acknowledgment that parliamentary sovereignty was the governing principle of our constitution. This was consistent not only with Lord Bingham’s views in his book but also with the views of every judge who made submissions to our committee. Other views are available and I fear that they may be held by this Government, or at least by those with responsibility for constitutional and legal matters. It may be that the Government’s view of the rule of law will be whatever government lawyers say it might be and what an international court might say it is.

To illustrate different views of the rule of law, let me compare two pronouncements by judges on the subject. Lord Hughes, a former Supreme Court judge, said in the case of Evans v Attorney-General in 2015 that

“it is an integral part of the rule of law that courts give effect to Parliamentary intention. The rule of law is not the same as a rule that courts must prevail, no matter what the statute says”.

On the other hand, one of the European Court of Human Rights judges in the recent, and controversial, Swiss climate change case, speaking for the majority, said that

“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, judges know best.

If this latter view of the rule of law represents the Government’s approach, I see trouble ahead. Responding to terrorism, maintaining public order, combating illegal migration and even fighting a war have become judicialised. I have heard senior soldiers saying that legal advice is inhibiting their ability to fight effectively and, among allies, we are accused of “legal freeloading” because of our reluctance to participate in some military activities in the light of that legal advice.

I have enormous respect for our judiciary, well represented in your Lordships’ House this afternoon, but, as we said in the Independent Review of Administrative Law, there should be institutional boundaries. The rule of law certainly does not mean rule by lawyers—or even by judges.

I will concentrate on social welfare law, which is a way of describing legal disputes involving mainly housing, debt, welfare benefits, immigration, asylum, and employment law. These issues may sometimes seem quite trivial compared with dramatic criminal trials or substantial civil cases between powerful interests. However, to the claimants and, I argue, to our system as well, they are of potentially huge significance. If you are evicted, if you lose your job, if you do not receive the benefits that you are absolutely entitled to, it can affect you and your family for ever, leading to that downward spiral that we read about so often. Under a system that works, many of those issues can be resolved by early legal advice. This was the purpose behind the old green form that many of us regret the passing of, and the system of small amounts of legal aid, supported by all political parties, that so often dealt with these problems quickly and without recourse to the courts.

Of course, the majority of people using this sensible, pragmatic system were poor and had little. They were not able to pay for legal advice, let alone representation. There never was a golden age, but the passing and coming into force, 11 and a half years ago, of the Legal Aid, Sentencing and Punishment of Offenders Act—LASPO—took many areas of law outside the scope of legal aid and has had a devastating effect on this crucial area of access to justice and thus to the rule of law. LASPO was part of the austerity programme but, sadly, has cost so much more than it has saved, in both financial and human terms. It has done so much damage that it is no exaggeration to say that the system is a long way to being broken.

I shall give noble Lords a couple of facts. The number of legal aid cases to help people get the early advice they need and are entitled to dropped from almost 1 million in 2009-10 to just 130,000 in 2021-22. The number of people having to go to court without representation has trebled. The number of advice agencies and law centres doing this important work has fallen by 59%. It is estimated that the number of people helped by legal aid in that period dropped by 4.5 million. Not surprisingly in this context, by next year a single person will not be eligible for legal aid unless he or she earns less than £9 a day, or £268 a month, 81% below the minimum income standard. Frankly, if it were not for the wonderful and selfless work done by lawyers and others, including law centres and advice centres—and pro bono work too, of course—this part of the law would be gone by now.

How does what I have tried to describe fit it with the Bingham principles on the rule of law? In my fairly amateur view, three come into play. The first is:

“The law must be accessible”.

Clearly, it is not accessible for many thousands of our fellow citizens. Another is:

“The law must afford adequate protection of fundamental human rights”.

It does not. The exceptional case funding part of LASPO has been pretty much a total failure. Perhaps most tellingly, Lord Bingham said:

“Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve”.

This is exactly what the present state of the law does not allow for.

The truth is, and it is disappointing to have to say it, that the rule of law does not seem to apply meaningfully to this—I would argue—vital area of the law. There will always be a majority of people of good will in this House and beyond who will agree that this sounds like a common-sense issue that in theory at least can be reasonably easily put right. To be fair, the last Government began to see the errors of their ways, and small steps were taken to try to relieve the worst of LASPO, which had been pointed out in many reports and studies over the years.

Of course, what is needed is an increase in legal aid and making it available for early advice in the areas of law struck down by LASPO. I accept, of course, the dire straits of the state of the finances bequeathed to this Government. My plea would be that such an egregious and clear breach of access to justice, and thus to the rule of law, should be remedied as quickly as possible; in other words, this issue should be given high priority.

I end by quoting from the Westminster Commission on Legal Aid in 2021. It said that

“there must be a recognition across government that the Rule of Law is not something we can have for free. It is a choice we make as a society: either we decide that the law should apply to us all equally or we don’t. If we decide we do, then there is a cost. It is a small cost relative to other areas of public spending and it is one that we believe is worth paying”.

My noble friend Lady Stowell of Beeston has been a brilliant mentor to me over these last few weeks. She is of course full of knowledge and experience as a former Leader of your Lordships’ House, but she is also brilliant at answering the trivial questions that it seems too silly to ask. There is much to learn here and—for me, with the customs and procedures of the House of Commons running through my very veins—much to unlearn.

I crave your Lordships’ indulgence to allow me to thank two other mentors. The first time I ever set foot in the Palace of Westminster, I had just graduated from the law school at Edinburgh University. In those days many people just laughed at a young woman who wanted to be taken seriously in politics, but the Member of Parliament for Edinburgh South did not. He encouraged me and invited me here to Parliament. He was then Michael Ancram, more recently known to your Lordships, until his untimely death just a few weeks ago, as the Marquess of Lothian. It is heartbreaking that Michael is no longer with us. I am sure that noble Lords all share my sadness and my enormous admiration for such a lovely man.

I also thank Lord MacGregor of Pulham Market, who, although he has retired from your Lordships’ House, continues to observe noble Lords’ proceedings from his home in Norfolk. Lord MacGregor, to whom I was special adviser for the many years during which he served in the Cabinets of Margaret Thatcher and John Major, is a highly principled politician who elevates argument with decency and kindness. I am extremely fortunate to have been taught so much by him.

Lord MacGregor was also a distinguished member of the Magic Circle, and while training me in politics he also trained me as a magician’s assistant. On one momentous occasion, on the big stage over in St John’s Smith Square, we set up a guillotine and cut off Jim Naughtie’s head. It is for your Lordships to decide whether putting Jim’s head back on was an appropriate, or indeed wise, course of action.

I congratulate the noble and learned Baroness, Lady Smith of Cluny, on introducing this important debate and on her maiden speech. Many of us remember with affection her esteemed father, who was held in great respect on both sides of the political divide. His legacy clearly flourishes in the noble and learned Baroness, but I commend her determination to forge her own way—and I commend her decision to operate mainly from Edinburgh. We are one country.

When I made my maiden speech in the other place 27 years ago, I quoted Anthony Trollope’s Phineas Finn, which said that, as Finn stood up in the House of Commons for the first time:

“All was confused, and there arose as it were a sound of waters in his ears, and a feeling as of a great hell around him”.

How very different is your Lordships’ House. Having spent almost 11 years trying to keep order in the other Chamber along with my partner in crime, the noble Baroness, Lady Winterton of Doncaster, I am most impressed by your Lordships’ ability to self-regulate—extremely surprised, but most impressed.

I am grateful also to the Garter King of Arms and the Lord Lyon King of Arms for permitting me to take the title Laing of Elderslie. Elderslie is the village, about 12 miles from Glasgow, in which I was born and brought up. It is the place where my grandfather set up a small business in 1910, and it is the village that my father represented on the district council for 25 years, and of which he was immensely proud.

Rather more notably, Elderslie was the birthplace of Sir William Wallace, the Scottish patriot who led the fight against oppression in the 13th century. Make no mistake: William Wallace was not fighting for any kind of modern-day nationalism. He was fighting for the basic liberty of the people he led. He was fighting for freedom, and surely we are all warriors in the cause of freedom. Wallace was defeated in battle, subjected to a show trial here in Westminster Hall and brutally executed. In 1305 there was no open justice, no protection for the weak from the strong, no rule of law.

I fully appreciate that a maiden speech should be uncontroversial. I thought the subject of today’s debate would provide that opportunity, as we must all surely agree on the importance of the rule of law, but everything is relative and nothing is absolute. It is a privilege to listen today to the wise arguments of noble and learned Lords, but I dare to question whether our current governmental processes are fulfilling their constitutional role in an adequate way. Are the legislature, the Executive and the judiciary really correctly balanced? There must of course be the potential for judicial review of administrative action but, as things stand now, the fear of judicial review is in practice hindering the proper implementation of policy. That may largely be due to an inappropriate risk-aversion culture among Ministers—and I mean Ministers of all parties, as the noble Lord, Lord Faulks, just alluded to.

For the rule of law to operate effectively, those who make the law must have confidence that their intent will not be diverted or diluted by other parts of our constitutional apparatus. The way in which we make laws is as important as the laws themselves, and what a challenge that is for your Lordships’ House. What a heavy responsibility for the revising Chamber.

I am in danger of straying into contentious territory, so I must conclude. I reiterate my praise for the noble and learned Baroness’s introduction of this important debate, along with my thanks to the many wonderful people who have given me so much personal and professional support in my journey to your Lordships’ House.

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.