Tag: 2023

Introduction

I am delighted to be invited to speak to the Institute for Government on one of the fundamental principles of our constitutional democracy, the rule of law.

The Institute for Government undertakes important work to make the UK government more effective through research, open discussion, and fresh thinking.

As a former Government lawyer and public servant, I very much respect the work of the Institute of Government with its aim of promoting better and more effective government in its wider sense.

I spent my career in public law; with 17-years in what is now the Government Legal Department. During this time, and my time in Parliament, I hope that I have learned a little about better and effective government.

I have been fortunate to work with some extraordinary people who moved this debate on. Lord (Simon) Brown of Eaton – under – Heywood whose death we mourn was at the forefront of this.

In particular, I have learned about the important contribution that each of the arms of State – Parliament, Ministers, the courts – makes. Government is always at its best and most efficient when each arm of the State has a respectful relationship with the others.

Like all long-term relationships – and it has been a long one – it isn’t always easy going. It is the relationships founded on respect and trust that survive. A healthy relationship isn’t just good for the parents – and there are three of them we’re discussing here – it is good for the wider family. Respectful relationships are also good for the people to whom we bear a weighty responsibility. We need to be good guardians of our democracy and democratic institutions.

So, what does a grown-up and respectful relationship look like? This is where government and the other arms of the state work together, with respect for each other and each other’s respective roles, to provide people with sufficient clarity, certainty, and predictability so that they can regulate their behaviour, and plan ahead. In turn, this contributes to the economic and social wellbeing of the country.

Clarity, certainty and predictability are all qualities not only of effective government but the rule of law itself.

I want to recognise the importance of the rule of law and the role each branch of the state has to play in upholding it and ensuring effective government. I will then explore how recent judgments of our domestic courts reveal the workings of this relationship and when the relationship works best.

What is the rule of law?

As I said after being sworn in before the Lord Chief Justice, my focus as Attorney General is upholding the rule of law. But what is the rule of law? It is in one sense, one of the most elusive constitutional principles.

It has sometimes been described as a “nebulous” or “contested” concept. Many great lawyers and academics have grappled with trying to define it, and indeed written whole books on the subject. So, I concluded, what we all need is another speech!

As I said to the House of Lord’s Constitution Committee a couple of weeks ago, each of the eminently qualified witnesses who had given evidence on this to the Committee had offered subtly different definitions.

I certainly do not intend to come up with the perfect definition this morning. However, I do consider that there are certain key elements of the rule of law upon which most, I hope, can agree.

The rule of law is the principle that the law applies equally to everyone, that no one is above the law, and, in particular, that the Government must comply with the law and that power is not exercised arbitrarily. It requires that all persons have access to courts that are independent. These courts must resolve disputes objectively in accordance with legal principles. Laws should be accessible, intelligible, clear, and predictable.

I do think it is important to acknowledge differences in conceptions of the rule of law, particularly where it relates international obligations. Wider conceptions of the rule of law, such as that advanced by Lord Bingham, include compliance by the State with its obligations in international law and the guarantee of basic fundamental rights, such as the right to a fair trial, open justice, and freedom of speech.

Those who prefer a narrower definition do not consider these aspects to be required by the rule of law. While there is a conceptual debate about whether the rule of law includes compliance with international law – and my own view in that debate aligns with Lord Bingham – it is certainly clear that the UK must comply with its international obligations and an important part of my role is to ensure that we do so.

Who is responsible for upholding the rule of law?

Given that the rule of law is so fundamental to our society, this raises a question. Who is responsible for upholding the rule of law? Parliament, the Executive (in the form of Ministers) and the Judiciary all have vital roles to play in this. And much in the way that each parent plays their own role and brings their own strengths to that role, so too do Parliament, the Executive and the courts.

Parliament determines what the law will be, and the powers that are granted to the Government and to other public bodies. The scrutiny of legislation by both houses improves lawmaking.

The Executive must act in accordance with their powers – whether statutory or prerogative – and these must not be exercised arbitrarily.

Finally, an independent judiciary ensures that government exercises its powers in accordance with the law. Judges rightly uphold the work of government when it acts within its powers and prevent overreach when it does not.

Each of these branches of government contribute, in their own right, to the rule of law and effective government. However, as Lord Thomas outlined in his speech to this Institute in 2014, these branches contribute to the rule of law in their own right and in relationship to one another.

But before I consider this very important relationship between the branches of government – and between two arms in particular – I would first like to consider my role as Attorney General in relation to the rule of law.

The rule of law and the role of Attorney General

As Attorney General for England and Wales – and Advocate General for Northern Ireland – I am the Government’s chief legal adviser and, alongside the Lord Chancellor, am responsible for upholding the rule of law within Government.

I am lawyer first, and a politician second.

This involves providing advice to the Government. Occasionally, it involves advice to the monarch and to Parliament. Sometimes, it involves making yourself unpopular by telling other Ministers that they cannot pursue certain policies and legislation because these are incompatible with the law.

It is for this reason that my predecessors have not always enjoyed themselves. Sir Patrick Hastings – in the 1920s – said it was his ‘idea of hell’. Francis Bacon – in the 17th century – ‘described it as the painfullest task in the realm’. 8 months into the role, I am – still – maintaining it is an honour and a privilege, though not always easy.

Legislative Scrutiny

The Law Officers, with the help of their officials, scrutinise legislation before a Bill is introduced to make sure that it is of course lawful, and that there is strong policy justification for any retrospectivity.

Law Officer Advice and the Law Officers’ Convention

The most well-known function of the Law Officers is to advise the government on the lawfulness of proposed policies or actions.

Our excellent government lawyers carry most of the burden where an issue is particularly legally or politically sensitive. But the Law Officers may be asked, on occasion, to give difficult or unwelcome advice. Of course, most lawyers are well used to that feeling!

I return to my analogy of parenting – making yourself unpopular when telling children what they cannot do when you know it is in their best interest! As a parent, when faced with two young children keen on obtaining devices which connected to the internet, my approach was to offer them alternative distractions – this is why we still have a ferret called Roulette, and why my daughters didn’t get smart phones until they had almost finished school.

The Law Officers – the Solicitor General, the Advocate General for Scotland and I – give our advice together when possible. Particularly when advice may be unwelcome, we are keen to act as a three to make sure our advice is clear and that there is no dispute as to the boundaries. It is better to present a united front and clear boundaries so that there is no confusion about what is and is not allowed.

The Law Officers’ Convention means that the fact that the Law Officers have or have not advised cannot be disclosed outside Government without our consent. This enables the government, my ministerial colleagues, to obtain our frank and full legal advice.

To do otherwise could lead to Law Officers’ advice not being sought at all. Departments might fear that it would imply that there is uncertainty about its legal position and this would invite legal challenge.

The upshot of this is that there will be many instances in which the Law Officers will have advised upon proposed government action, and of which the public – and, indeed, the courts – will have no knowledge. The Law Officers act as a crucial check within government.

What is the role of the courts in upholding the rule of law?

Of course, the Attorney General is not the only check on the maintenance of the rule of law within our constitutional system.

Our judiciary is fundamental to the principle of open justice. By publishing and explaining decisions, by engaging with wider society, and by allowing access to the courts – in person and more recently by broadcast – judges strive to make their work transparent and understandable.

Judges are not enemies of the people, or indeed of the government. The role of judges is not only to restrain power from being unlawfully exercised, but judges also rightly uphold the work of government when it acts within its powers.

Courts exist to uphold the law. They do not exist in vacuum. Nor does Parliament legislate in a vacuum. The branches of government exist in relationship to each other. So too do the fundamental principles of our constitutional democracy.

As Lord Reed put it so well in the Unison case:

At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country … Courts exist in order to ensure that the laws made by Parliament and the common law are applied and enforced.[1]

Parliamentary sovereignty is in a relationship with the rule of law, just as the courts are in a relationship with Parliament. Parliament can legislate as it wants. But the flip side of that sovereignty has always been that Parliament has respected the constitutional principle of the rule of law, including the constitutional role of the courts.

In our system Parliament has immense power but, as the cliché goes, with great power comes great responsibility. Parliament must always be mindful of that. In this sense, Parliament’s sovereign power exists in relationship to the rule of law, and in recognition of its responsibility as the elected branch of government. By the same token, the courts must respect the constitutional roles of Parliament and the Executive.

Human Rights Act 1998

Some key recent judgments from the Supreme Court on the relationship between the courts, Parliament and the Executive have been made in the human rights context. It is worth pausing here to consider the Human Rights Act in more detail, and the careful line it treads to ensure respect for Parliamentary sovereignty.

The UK is one of the founding members of the Council of Europe and has been a Party to the European Convention of Human Rights since the 1950s. In 1998, Parliament decided to give further effect to the Convention in domestic law through the Human Rights Act. Crucially it made it unlawful as a matter of domestic law for public authorities to act in a way which is incompatible with a Convention right.

Parliament elected to take a novel step in its relationship with the courts and directed that legislation be interpreted in a way that is compatible with Convention rights. As Lord Sales has put it, section 3 directs the courts to:

change the ordinary meaning which would otherwise be given to statutory provisions, so far as it is possible to do, in order to produce a new interpretation which is compatible with Convention rights. [2]

To quote Lord Sales again in a lecture he gave only last month, the interpretive obligation authorises:

a re-drafting of statutory provisions by the courts in light of their interpretation of the Convention rights, in tension with the usual expectation that it is for the democratically elected legislature to lay down the law in statutory provisions … with a meaning directly given by its own (collective) intention. [3]

This was, as I say, a novel step.

But within the Human Rights Act there are boundaries – the courts can only stretch the interpretation of a legislative provision so far. Where a section 3 interpretation would go against the fundamentals of the underlying legislation (as Lord Nicholls put it, in Ghaidan v Godin-Mendoza)[4], then the appropriate remedy is a Declaration of Incompatibility under section 4. This does not affect the ongoing operation of the legislation but leaves the decision on what to do about the incompatibility, properly, to the executive and Parliament.

There are also boundaries to how far courts can go both in interpreting the ambit of Convention rights, and in assessing proportionality. As set out by the House of Lords in Ullah, the boundaries for the Courts are those rights which the European Court has already recognised.[5]

Lord Bingham put it clearly in R (SB) v Governors of Denbigh High School[6]:

the purpose of the Human Rights Act 1998 was not to enlarge the rights or remedies of [the Convention] …. but to enable those rights and remedies to be asserted and enforced by domestic courts of this country

It is not open to the domestic courts to extend or expand Convention rights beyond the bounds established by the European Court of Human Rights. It is, of course, open to Parliament to extend protections further than the European Convention requires. But that is for Parliament, not the Courts. Otherwise, the UK domestic courts are not following Parliament’s direction to interpret legislation compatibility. More recently, the Supreme Court has rightly reaffirmed this approach in cases such as SC[7], AB[8] and Elan-Cane.[9]

The margin of appreciation is a principle of interpretation of the Convention based on the need for judicial restraint on the part of the European Court. This margin is founded on the understanding that there may not be consensus amongst different states on a particular issue and that there are instances in which national authorities, rather than a supranational court, are better placed to make the relevant assessment. This allows States a degree of latitude in relation to their domestic law and practice.

The concept is specific to the European court. Nevertheless, domestic courts have tried to apply a similar approach for two good reasons.

First, as Lady Hale recognised in Countryside Alliance[10] and Lord Reed has recently reaffirmed in Elan-Cane[11], where a domestic court can reasonably predict that Strasbourg would consider a matter within the margin of appreciation, the domestic court should not second guess the conclusion that Parliament came to. This reflects the principle that Human Rights Act requires the domestic courts to keep pace with Strasbourg, but no more.[12] Domestic courts ought not speculate on whether the Strasbourg Court would find a breach; domestic courts ought not to find a violation unless they are fully confident that the Strasbourg court would find one. To do so would pre-empt any judgment of the European Court and could end with an expansion of Convention rights domestically.

Second, as explained by Lord Reed in the case SC[13], domestic courts must respect the relationship between the judiciary and Parliament and the Executive. Social and economic policies are political matters, which require a balancing exercise of competing costs and benefits. This is particularly relevant when a court is determining whether an interference with a Convention right is proportionate. The approach of the domestic courts is that where the Strasbourg court would allow a wide margin of appreciation to the legislature’s policy choice – such as in economic and social policy – so too should the domestic courts allow a “wide margin” or a “discretionary area of judgment”.[14]

The case of SC is a very useful illustration of this point. In brief, SC concerned whether differential treatment between families with two children or fewer (eligible for child tax credit) and families with more than two children (where the third and subsequent child was not eligible) was compatible. It was accepted that 90% of single parents were women and single parent families made up a third of families who recieved child tax credit. The question for the court was whether the differential treatment justified and compatible with Convention rights.

It is well established that the court assesses proportionality in four stages.[15] First, the measure must pursue a legitimate aim. Second, the measure must be rationally connected. Third, the aim could not be achieved by less intrusive means. Fourth, the effects of the measure on the Convention rights of the people affected must be weighed against the importance of the aim or objective to determine whether the interference strikes a fair balance between the rights of the individual and the wider interests of the community as a whole.

The third and fourth stages can be summed up as whether there is a “proportionate means” of achieving the aim. This requires the court to carry out a more intensive review of a decision than is normally required by our common law. If that review were not carried out by the domestic courts, it would be carried out by the Strasbourg Court.

In SC, the court accepted that limiting child tax credit to two children per family was rationally connected to the legitimate aim of achieving savings in public expenditure.[16] In determining whether the right balance had been struck between the rights of individuals affected and the interests of the community as a whole, the court concluded that once Parliament had decided that the importance of the objectives pursued by the measure were justified despite the differential impact on women, it was not for the court to take a different view.[17]

In SC, we see the Supreme Court recognising, in a domestic setting, the wide margin of appreciation afforded to the elected branches of government.

Were this otherwise, UK judges would be required to make their own, political, assessments of the requirements of Convention rights. That would represent a substantial expansion of the constitutional powers of the judiciary, unauthorised by – and at the expense of – Parliament. I know many judges, and do not know many who would welcome being placed in that position!

Inherent in section 3 is already some degree of legal uncertainty in that the particular words in legislation may not reflect their ordinary meaning, once interpreted compatibly with the Convention. However, section 3 – as Parliament intended and it is properly understood after-AB and after-Elan-Cane – means that the law is to be interpreted in light of Convention rights as they are understood at that point in time.

This not only reflects the proper relationship in international law between the Strasbourg Court and the domestic courts and the Parliamentary intention of the Human Rights Act. It also provides stability, certainty and predictability in the law and the approach the court will take interpreting legislation and upholding the law, which enables citizens and the government to regulate their behaviour and affairs.

The rule of law, executive power, and the role of the courts

The rule of law and effective government requires that the Government must comply with the law and that executive power is not exercised arbitrarily.

Judicial review has developed significantly over the last 40 years. Now, judicial review is a crucial tool to ensure that the executive operates within the bounds of the power it has been granted. There do, however, remain some instances in which the exercise of executive power is non-justiciable. Where it is justiciable, a light touch review is appropriate in light of the knowledge, responsibilities and role of the Executive.

On example of this is the Royal prerogative to conclude international treaties and agreements remains non-justiciable. This reflects the fact that entering into treaties does not extend to altering the law or conferring rights upon individuals.

This dualist system is a necessary part of Parliamentary sovereignty. A treaty is not part of English law unless and until it has been incorporated into the law by legislation through Parliament.

However, there are circumstances where a treaty has not been incorporated, but the courts have determined that the treaty has gained a foothold on the domestic plane. For example, where a Minister has considered obligations on the international plane when making a decision, such as the WTO considerations in HMT v Heathrow Airport.[18]

Even where that foothold is established, it is appropriate for the courts to allow the Executive a margin of appreciation and examine only whether the view adopted by the executive is tenable. This approach was adopted by the courts in the recent UK Export Finance case.[19]

As Lord Sales has pointed out, this approach allows the Executive to press for legal interpretations on the international plane to favour the United Kingdom’s national interests.[20] It also reflects the nature of multinational treaties as creatures of deliberation amongst states. States which often have contrasting views and different prevailing national circumstances.

The domestic courts should not be tasked with determining manner of the UK’s compliance with an unincorporated international treaty. As Lord Brown observed in the Cornerhouse case,[21] national courts applying a more intensive level of review to an unincorporated treaty could have damaging consequences for the UK in its attempts to influence the emerging consensus internationally.

It also reflects the fact that states are the principal actors on the international law plane. In the UK constitutional system, it is the role of the Executive – and not the domestic courts – to act on the international plane in the interests of the UK. Of course, this must include the need to uphold the rule of law internationally. One example, uppermost in all our minds is in relation to Russia’s actions in Ukraine. Against this backdrop, it is right that the relationship of the domestic courts with the Executive is one which respects the need to accord the Executive latitude to conduct foreign relations, including by taking positions of international law.

This respectful relationship between the courts and the elected branches of government recognises the importance of the rule of law and the role each branch of the state has to play – both in its own right, and in relationship to one another – in upholding the rule of law and ensuring effective government.

Conclusion

As Attorney General, I remain steadfast in my view that the courts have a vital role in upholding the rule of law, a role which is respected by this government. Government, seen broadly, is at its most effective when this respect is mirrored both ways.

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[1] Paragraph 68.

[2] R (SF and K) v Secretary of State for Justice [2012] EWHC 1810 (Admin), paragraph 61.

[3] Lord Sales, Keynote Speech at the Scottish Public Law Group Conference, “The Developing Jurisprudence of the Supreme Court on Convention Rights”, 5 June 2023.

[4] Ghaidan v Godin-Mendoza [2004] 2 AC 557 at paragraph 33.

[5] R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323 at paragraph 20.

[6] R (SB) v Governors of Denbigh High School [2006] UKHL 15; [2007] 1 AC 100 at paragraph 29.

[7] R (SC) v Secretary of State for Work and Pensions [2019] UKSC 26.

[8] R (AB) v Secretary of State for Justice [2021] UKSC 28 at paragraphs 54-59.

[9] R (Elan-Cane) v Secretary of State for the Home Department [2021] UKSC 56.

[10] R (Countryside Alliance) v Attorney General [2007] UKHL 52; [2008] AC 719, at paragraph 126.

[11] R (Elan-Cane) v Secretary of State for the Home Department [2021] UKSC 56.

[12] Ibid. R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323, paragraph 20.

[13] R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26 at paragraph 144.

[14] R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26 at paragraph 143; R v Director of Public Prosecutions ex p Kebilene [2000] 2 AC 326 at 380.

[15] Bank Mellat (No. 2) v Her Majesty’s Treasury (No. 2) [2013] UKSC 39.

[16] R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26 at paragraph 193.

[17] R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26 at paragraph 198.

[18] Heathrow Airport Limited v HM Treasury [2021] EWCA Civ 783.

[19] R (Friends of the Earth Ltd) v Secretary of State for International Trade and UK Export Finance [2023] EWCA Civ 14 at paragraphs 40-43.

[20]Phillip Sales QC and Joanne Clement, “International Law in Domestic Courts: The Developing Framework”, 124 LQR 388 at pages 405-406.

[21] R (Corner House Research) v Serious Fraud Office [2008] UKHL 60, [2009] 1 AC 756 at paragraph 44.