Robert's speech to the Swindon Philisophical Society - 3rd February 2017

May I thank the Swindon Philosophical Society for extending another invitation to me to speak.  I can only conclude that my offering last time found at least some favour, for which I am most grateful.  Can I at the outset of my remarks make an admission:  I am not a philosopher.  I am a practising politician and a lawyer who is getting rather long in the tooth.  However, I remain interested in, and moved by, ideas and concepts.  The need to ask “why” is part of my approach to life and work.  The practice of law is no exception.  At a time when we hear the phrase “Rule of Law” being used often, and sometimes by those who despite their protestations do not adhere to it, I thought it worthwhile us taking a closer look at the concept, where we have got to and a look ahead as to where we might be going.  As Solicitor General, it is my core function to make sure that the Government and Ministers act in accordance with the Rule of Law.   The traditional concept of the rule of law that has is accepted in this country is that the law should be the deciding factor in governing a nation, not the decisions of individuals in Government.  Another way of expressing it is “equality before the law”, that is the principle that the law treats everyone equally, including those who make it.

 

From my two decades of practice predominately at the Criminal Bar, conducting jury trials in our Crown Courts, the principle of equality before the law was one that I often cited when making speeches for the defence.  The way that I used to put it was that wherever we happened to be sitting in the Courtroom, we were all equal. The fact that the accused sat in the dock did not mean that he or she had lost that equality and that they were to be treated any differently from the rest of us.  I asked juries to apply the same fair standards as if they themselves were sitting in the dock as an accused person.  Whatever the verdict reached in each case, I most often got a very strong sense that juries understood this almost instinctively.  Why?  Because the concept when stripped  back is one of straightforward fairness.  Fairness is a concept that is always vulnerable to subjective judgement.  What is a fair outcome to the victor is often seen as unfair by the loser.  This is where justice comes in.  Justice isn’t only about the fairness of the outcome, but the fairness of the process used to achieve the outcome.  Justice is seen to work well when the losing party acknowledges that although they don’t agree with the outcome, the process was a fair one.  The Government in losing the A50 Appeal at the Supreme Court was in precisely that position last week. 

Acceptance of the fairness of the outcome, whatever one’s view of its merits, is part of the warp and woof of the Rule of Law.  The means of ensuring a fair process is achieved by two things: an independent legal profession conducting litigation and secondly, an independent judiciary that makes the decisions.

 

 

As we all know, the concept of law and its universal application can be traced back to many ancient civilizations, and in English Law to important events such as Magna Carta.  We think of the 1215 sealing at Runnymede by King John as the moment when all changed, but the reality is somewhat different.  The 1216 Charter, issued by William Marshall Earl of Pembroke at the beginning of the boy King Henry III’s reign is really what survives, and the three clauses left in our law were codified by an Act of 1297. 

 

“XXIX. NO Freeman shall be taken or imprisoned, or be disseised [dispossessed] of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land. We will sell to no man, we will not deny or defer to any man either Justice or Right”

 

Magna Carta became a very useful tool in the hands of the great jurist and my predecessor Sir Edward Coke, who deployed it to counter the Stuart philosophy of the Divine Right of Kings in the Petition of Right of 1628 for example, which brought together the principles of habeas corpus with the prohibition of taxation unless it be with the consent of Parliament.

 

For those of you who now expect me to deliver a linear view of our constitutional history via 1689 and 1832, you are going to be disappointed.  I am no Whig, and take a somewhat more Tory view that there is and was no inevitable “line of progress”.  On the contrary, the developing importance of the rule of law in our jurisdiction was often the result of random acts quite unconnected to each other that originated for often prosaic reasons but which have had a combined effect that no-one could ever have foreseen.  It is my conclusion that these happy accidents have led to the development of a constitutional principle that has had hugely positive effects for all of us both here and elsewhere in the world.  One of my predecessors, John Cooke, who was the first Solicitor General during the Commonwealth, had the responsibility of prosecuting Charles I.  He suffered for his art by being hanged drawn and quartered by after the Restoration.  The fact that he is the only Law Officer in 500 years to suffer this grisly fate speaks volumes for the essential stability of our system, however!

 

Although the concept is old, the phrase itself is relatively modern, having been coined by AV Dicey in the late 19th century, when he published the seminal Introduction to the Study of the Law of the Constitution. He argued that the British Parliament was "an absolutely sovereign legislature" with the "right to make or unmake any law". In the book, he defined the term "constitutional law" as including "all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the state." He understood that the freedom British subjects enjoyed was dependent on the sovereignty of Parliament, the impartiality of the courts free from governmental interference and the supremacy of the common law.

Many have worried and struggled with the perceived clash between the Supremacy of Parliament and the Rule of Law.  It is my strong view that they are two sides of the same coin, and that the one strengthens the other.  What many commentators and colleagues are really worrying about is a perceived power struggle between elected legislators and unelected judges, two nations being ignorant of the other, ignorant armies clashing by night, to mix my Disraeli and my Matthew Arnold.   I must confess that I do worry about the tensions that emerge between the branches of our unwritten constitution, but remind myself that tension is often a good thing.  To those who pursue the Holy Grail of Separation of Powers, I say be careful what you wish for.   A system where independent judges who are asked to litigate on issues and whose judgements are made in a way that does not place Government in a special position is as good a system as we could ever want.  Today is not a time for me to wax lyrical about the checks and balances of the British system, but for all its idiosyncrasies, irrationalities and perceived imperfections,  it works, and works within The Rule of Law.

 

What, then, underpins this adherence to the Rule of Law?  The source of laws and the development of legal systems is undoubtedly linked to theist cultures and the sense that, whoever we may be, we are all subject to a higher authority, a moral authority if you like.  One of the most interesting contributions to the debate was by the late great Lord Devlin, whose lectures on Law and Morals delivered just over fifty years ago represent a rare foray by a senior Judge into what he described as the “deeper waters” of the law.  In essence, he characterised the debate about the function of the law itself as one between Mill’s definition of liberty, where the only purpose for which power could be exercised over any member of a civilised community against his will is to prevent harm to others, and most emphatically not to enforce something “for his own good”; in other words, no nannying please, and the contrary argument which involves the law intervening to forbid certain practices viewed as morally wrong.  It is interesting to see some of the examples given as running contrary to Mill’s rule, such as laws to prohibit homosexuality.  The Wolfenden Report had just recommended that consenting acts between male adults in private should be decriminalised, upon the basis that what people got up to in private was a matter for them, but interestingly not on the basis that hostile attitudes towards homosexuality had changed.  My belief is that our laws are founded upon what society regards as unacceptable at any one time.  Same sex relationships are a prime example of this; we have seen a sea change in attitudes towards sexuality since 1967, to the extent that most people would regard it as morally wrong to criminalise same sex relationships.  Indeed, sexuality is a protected characteristic that leads to more severe sanctions for those committing hate crimes. 

The pace and timing of legislative change to meet changes in societal attitudes is another matter.  It is pretty clear that the death penalty’s abolition happened ahead of any massive change in public opinion.  As a legislator myself, I have had to grapple with these concepts when assessing the merits of particular proposals, most notably right to die.  These debates, if you like, mark the limits of the Rule of Law.  Like all other human systems, it is flawed and imperfect. 

 

To bring things full circle, it is clear to me that Mill’s thesis is not the one that we have adopted in our system.  Perhaps the most direct rebuttal of it comes in the form of Sentencing Guidelines, issued by the Sentencing Council and which are used by judges in our Crown and Magistrates Courts.  I have regular recourse to them in my work overseeing the reference system of unduly lenient sentences to the Court of Appeal and conducting cases there.  The seriousness of an offence is determined by two factors: culpability and harm.  Culpability is, if you like, our moral judgment as to the behaviour of the defendant.  Take the assault guidelines, for example.  Higher culpability will involve racially aggravated offences, or offences involving hostility based upon a person’s sexuality or disability.  Was a weapon used? Was there significant premeditation?  Was the victim singled out?  Was the perpetrator a leader of a gang?  Then, the question of harm relates to the effect on the victim and wider society.  Was the injury particularly serious in the context of the offence?  Was it a sustained/repeated attack?  Was the victim particularly vulnerable? If we are to follow Mill’s definition, then courts should only sentence criminals for the harm they cause, not their own culpability.  This is unrealistic and would be seen as bizarre by most of the public, I think.

 

I want to raise our eyes from the purely domestic for a while, and help to evaluate the position when it comes to international law, where in my view the principle of The Rule of Law is now more important than ever, and increasingly garnering public attention, particularly in these uncertain times of a Trump presidency and Brexit.   Please forgive me if it feels as if I am straying back into matters of practice, but the point I seek to make is that it is the best way to describe the sort of influences that help shape, strengthen and evolve the Rule of Law concept.

 

The particular role that states play in developing, forming and upholding international law makes my position as a Government Law Officer a particularly interesting and, at times, challenging one.   Given that international law is shaped, in significant part, by what states do and a clear understanding of why they do it, what government lawyers advise and the impact that has on the actions of states is central to the development and ‘enforcement’ of international law.

 

International law binds the UK, both as a central tenet of our constitutional framework and as a distinct legal regime at the international level. The constitutional principle to respect the rule of law and comply with our international obligations is reflected in the Ministerial Code

 

With President Trump recently suggesting he could reintroduce waterboarding as an interrogation technique, the issues upon which I have been reflecting come to the forefront. There is a general acceptance now, in most of the world, that those practices carried out in the early years after the 9/11 attacks - extraordinary rendition, detention without trial, enhanced interrogation - were not only morally wrong, they were also practically counter-productive.  How can evidence produced via torture be reliable?

 

This is where the rule of law plays an important part. As Senator John McCain has said "The president can sign whatever executive order he likes,"… "but the law is the law. We are not bringing back torture in the USA".  Other key members of the Trump administration have indicated their opposition to water boarding.  What is also clear is the fact that litigation is bound to follow if that course is taken.  In short, the US constitution and its Rule of Law principles are likely to make him, like Gulliver, bound down. 

 

From a UK perspective, it is hard to imagine how the integrity of British intelligence services and personnel could be protected if they — subject to the ethical and legal standards of international and domestic human rights law — must work in close cooperation with US public servants licensed to torture.

 

The Prime Minister has stated: “We have a very clear position on torture. We do not sanction torture, we do not get involved with that and that will continue to be our position."

The PM’s official spokeswoman said there was no chance of the UK helping America torture terror suspects as it has in the past.  “We don’t condone torture, inhumane or cruel treatment in any form. That is very clearly the UK’s position,” the Number 10 official said.

 

International law also touches on nearly every aspect of our lives and our work as government lawyers, primarily through the European Convention on Human Rights and the treaties of the European Union, the latter applicable until Brexit.

 

Parliament has transposed those treaties directly into our legal system and they form part of our constitutional structure. But at their heart they are international obligations that we have given effect to in domestic law.

 

A central fact of that debate is a recognition that government must comply with its international obligations, or seek to change them.  There are vast webs of bilateral treaties that determine where we fly, how we invest abroad and how we gather tax.

 

International trade agreements alone impact on nearly every government department and affect how our businesses across countless sectors operate around the world.  Global deals on major issues such as climate change for example have international law implications, and our international arrangements with countries around the world help in the fight against serious organised crime and the disruption of terrorism.

 

This is extremely relevant in light of Brexit, where the relationships we have formed over the last 40 years will alter over the next few years. It is vital that we strike the right balance when negotiating our exit.

 

International laws are the subject of domestic inquiries and are increasingly at the forefront of legal argument in domestic courts where they consider, for example, the interpretation of the UN Charter, the application of the Geneva Conventions or questions of immunity arising out of the Act of State doctrine.  Regional law frameworks like the European Convention on Human Rights continue to play an important part in shaping our law.

 

However, unlike domestic law there is of course no international legislature as such when it comes to international law.  With domestic law, a government may have a particular policy in respect of a particular issue and Parliament may legislate as a response to it.  This process is considerably more complicated at the international level, where sources of international law are more diffuse including, for example, the practice of states, the general principles of law recognised by civilised nations or the teachings of highly regarded public figures.   And unlike domestic law, whilst there is some scope to consider international legal questions before domestic and international courts, that is not often the case when it comes to determinations of international law.  This is, of course, distinct from Regional jurisdictions such as the European Court of Human Rights.

 

The role of the government lawyer is therefore a particularly important and challenging one when it comes to advising on the application of international law. I have often heard government lawyers described in this context as the gatekeepers of international law.   As lawyers who help ground decision-making in the international rule of law we have a crucial role to play in ensuring that the short-term and expedient solution to any given problem –which may be legally arguable - is set in the wider political and legal context that protects the UK’s longer-term interests in having a responsive but robust international legal system.

 

And legal advice in this area should not be dogmatic.  In this sphere, we rarely deal in absolutes but are in the business of providing risk-based advice that reflects the context in which it operates.   International law itself is not static. Customary international law is often developed organically over time.

 

This inherent flexibility of international law is perhaps one of its most significant qualities, and a reality with which we all have to grapple as government lawyers. In my view, the flexibility of international law is a positive thing and ensures that it is able to adapt to changing scenarios and needs. As society changes – and new values and norms develop - international law also has the scope to develop to meet these changing needs.  Any lawyer, especially one in government, must recognise the need for law to serve society, and international law is no different. For international law to meet the requirements of the Rule of Law and to avoid being dismissed and marginalised, it must develop to meet the needs of the international community which it is serving.

 

Before his death, which still to me seemed far too soon, Lord Bingham of Cornhill, former Lord Chief Justice and Law Lord, wrote a concise but elegant book entitled the Rule of Law.  I recommend it strongly if you haven’t already read it.   He ends the book with a reference to the wonderful frescos in the Hall of the Nine at the Palazzo Publico in Siena.  I am lucky enough to have seen them for myself.  The artist Ambrogio Lorinzetti depicts the Allegory of Good Government, where Justice, personified as a woman, gestures towards the scales of justice held by Wisdom.  At her feet is Virtue.  A judge sits at the centre, surrounded by figures such as Peace.  On either side are two paintings, one illustrating the “Effects of Good Government” and the other “Effects of Bad Government”.  You can imagine the difference between the scenes of plentiful harvests and street dancing in the first painting versus decay, violence and disease in the second.  Tom Bingham asks the question: what makes the difference between Good and Bad Government-quite simply, The Rule of Law.  He goes on to describe it as “one of the greatest unifying factors, perhaps the greatest, the nearest we are likely to approach to a universal secular religion.”

 

I agree but only up to a point, Lord Copper.  My observations about law and morality earlier highlight some of the limitations and imperfections that accompany the Rule of Law.  The danger of allowing a principle such as this to assume a religious quality means that its practitioners, most notably the Judges, assume the role of High Priests, guarding a sacred flame in the Holy of Holies, remote and inaccessible to the rest of us.  If that is to be the case, then we will need a soothsayer standing inside remind us that, at times, “the law, sir, is an ass”.   Rule of Law, then, must never become Rule of Lawyers.

 

What, then, of a set of principles that helps to flesh out what it all means.   Quite rightly, Bingham precedes this with some outlines of different approaches to the Rule of Law.  The one that I am most happy with is the declaration made by the International Commission of Jurists at Athens in 1955, which provided that:

 

“1.      The State is subject to the law;

2        Governments should respect the rights of individuals under the Rule of Law and provide effective means for their enforcement;

3        Judges should be guided by the Rule of Law, protect and enforce it without fear or favour and resist any encroachment by governments or political parties in their independence as judges;

4        Lawyers of the world should preserve the independence of their profession, assert the rights of an individual under the Rule of Law and insist that every accused is accorded a fair trial.”

This, then, is a prospectus upon which we can all work from, even if there will be times when the law and those who practice it will be the butt of criticism and even ridicule.  The Rule of Law, however, ensures that those who carry it out can never, ever, be Enemies of the People.