The House of Lords Constitution Committee, which I chair, has expressed its firm view that government adherence to the rule of law is fundamental to our constitution.
In the committee’s report The roles of the Lord Chancellor and the Law Officers, which we published today, we argue that ministers must understand the key principles of the rule of law and prioritise adherence to these principles over political gain.
While we accept that the rule of law as a concept is not easy to define, we adopt as a benchmark the widely respected fundamental tenets identified by Lord Bingham. We also emphasise that the defence of the independence of the judiciary remains crucial if judges are to successfully fulfil their role in upholding the rule of law.
The events of recent years – including the implementation of Brexit – have called into question the government’s commitment to this central plank of our constitution. To give an example, it has twice knowingly introduced legislation in parliament which would breach the UK’s international obligations and, in doing so, undermine the rule of law.
The first of these occasions arose in Part 5 of the Internal Market Bill of 2020, which sought to change UK domestic law to alter the operation of the Northern Ireland Protocol. The then secretary of state for Northern Ireland, Brandon Lewis, notoriously admitted in the House of Commons that the bill broke 'international law in a very specific and limited way.'
More recently, the government introduced the Northern Ireland Protocol Bill to parliament, which again seeks to alter the operation of the protocol. This time the government is relying on the ‘doctrine of necessity’ as justification to breach the commitments it made in the Withdrawal Agreement between the UK and the European Union. Reporting on the bill last year, my committee did not accept this justification, concluding that the bill would 'clearly breach the UK’s international obligations'.
While parliamentary sovereignty means that parliament is able to legislate in this way, this does not alter the government’s responsibility, as the state’s international representative, to ensure to the best of its ability that international obligations are adhered to.
So why have these incidents been allowed to occur in a country that prides itself on reliability, stability and adherence to the rule of law?
I would argue that it results from a failure of good governance.
The lord chancellor and the law officers are expected to be among the chief guardians of the rule of law in our constitution and yet, on these occasions, they appear to have been unable or unwilling to intervene to prevent the rule of law from being undermined.
Central to the law officers’ role is to provide advice on the lawfulness of proposed government action. Government lawyers do this by assessing government policy and determining if there is a 'respectable legal argument' in defence of the action that could, if necessary, be put to a court.
My committee is concerned that the existence of a 'respectable legal argument' could sometimes represent a very low threshold for authorising legally uncertain action. Public confidence in the government’s commitment to the rule of law demands that any threshold is meaningful and aligns with an ethos of genuinely seeking to comply with the law.
The 'respectable legal argument' threshold risks, at times, being used purely for the convenience of government. I fear that this may have been the case when the Northern Ireland Protocol Bill and Part 5 of the Internal Market Bill were introduced to parliament. As a member of the cabinet who has a statutory duty with respect to the rule of law, the lord chancellor is well placed to remind the government of its commitment to adhere to the law, both domestic and international. It is impossible to know if the lord chancellors in post when these two bills were drafted sought to do so. What we do know is that the executive felt able to introduce both bills to parliament despite their entailing clear breaches of international law.
How can the lord chancellor and the law officers renew the government’s commitment to the rule of law?
In our report we call on lord chancellors to fulfil a cross-departmental role in defending the rule of law and educating their colleagues on its importance. To fulfil this role successfully, we would normally expect a lord chancellor to be a senior legal figure, respected in the legal community and in parliament.
We see great value in the law officers being politicians as it provides them with a strong understanding of the political context in which they operate and bolsters the authority of their advice. However, we urge law officers to refrain from making public statements that could damage public perception of their impartiality.
The report recommends that the Ministerial Code and the Cabinet Manual should be amended to define clearly the duties of the law officers, including which of their duties are ministerial in nature and which should be carried out independently of government.
We do not consider the lord chancellor’s oath adequately to reflect his or her role and recommend that it is updated to include the duty to uphold – as well as respect – the rule of law. The law officers’ oath should also be updated to make explicit reference to the primacy of their duty to uphold the rule of law.
Most importantly of all, it is vital that individuals appointed to these roles possess the authority, strength of character and independence of mind to stand up to their government colleagues, including, where necessary, the prime minister.
Baroness Drake is chair of the House of Lords Constitution Committee
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