Are we ruled by lawyers or politicians?

This Government’s absolute commitment to the ‘Rule of Law’ means that some are asking this question. It would be less problematic if the Rule of Law were defined ‘thinly’ by reference to its universally accepted core principles, ie. that the law should be certain and accessible, applied equally and governed by laws administered by an independent judiciary.  However, the Attorney General has argued for a ‘thick’ definition encompassing not just universally accepted core elements as above, but also human rights, democracy and international law. 

This is not some dry, esoteric debate among lawyers. It will have a major impact on Government decision-making for issues which affect us all, human rights having been interpreted by the courts in ways which permeate every aspect of our lives. And as we have learnt from recent press reports it may even affect what Ministers can say in Parliament about court judgments they disagree with.

But let’s retrace a bit.  It has been argued that the last Government failed to comply with even the universally accepted core concepts of the rule of law. This reached its apex with the Rwanda Act 2024 when, notwithstanding a Supreme Court judgment to the contrary, the Act declared that it was the ‘judgment of Parliament’ that Rwanda was safe which was not reviewable by the courts. Key provisions of the Human Rights Act were disapplied. There was a provision asserting the sovereignty of Acts of Parliament over international law, and Ministers were given a power to decide whether to comply with interim measures of the Strasbourg Court. 

Defenders of the Act would say that Parliamentary sovereignty always guarantees compliance with the rule of law, given that it derives its provenance from the democratic will of the people, and an elected Executive.  The opposite view, however, is that the rule of law transcends even an Act of Parliament, and encompasses human rights, democracy and international law which even Parliament must respect.  

These different interpretations of the Rule of Law were debated on 26^th November 2024 in the House of Lords (columns 619-679). The Shadow Attorney General, advocating a ‘thin’ conception of the Rule of Law, gave as an example a society which restricts by law freedom of movement or speech or organised religion. He argued that such a society adhered just as closely to the rule of law as a society that did not impose such restrictions.  On this view, not all human rights are part of the rule of law since they are ultimately political choices, and the rule of law should not be politicised. Seeking to incorporate all aspects of human rights, as interpreted from time to time by the courts and international tribunals, loses the certainty that the rule of law requires. 

The ‘thick’ approach was defended by the Attorney General. He said Parliament is indeed sovereign but with that power comes responsibility about how Parliament chooses to exercise it both in relationship to the courts and the Executive’s relationship with Parliament.  The clearest recent example of a failure to do so responsibly was when the last Government purported to mandate fiction as fact and declare Rwanda safe. He drew on an analogy with apartheid in South Africa.  Under apartheid, the laws were very clear and there was certainty as to their content. They were passed by the Parliament and adjudicated upon by an independent judiciary. But it was not a country that operated according to the rule of law.  It was rule by law.  The correct interpretation of the rule of law involves compliance with human rights, democracy and international law.

The reader can choose between the two views, but a couple of observations to make.  First, adopting the ‘thick’ approach to the Rule of Law sets an ambitious yardstick against which the Government will be measured.  In declaring that a broad view of the Rule of Law will serve as the ‘lodestar’ in how they approach legislation and policy, they will be held to account politically for any failures to deliver it.  As Sir Humphrey might have said, it is a ‘courageous’ move, because there are a multitude of policy areas where it will be tested, for example: the backlog of cases in family, civil and criminal law, especially rape trials, and the shortage of judges; the drop in legal aid for social welfare disputes involving things like housing, debt, benefits, and employment law; the increase in the powers of Ministers to make secondary legislation, including Henry VIII powers; and the lack of prison places. 

Secondly, some are arguing that the Government’s approach to the Rule of Law means that the Government is being legally too risk-averse on issues like the Chagos Islands, the banning of arms sales to Israel, the Netanyahu arrest warrant and compensation to Gerry Adams. It is rule by lawyers and not elected politicians.  The answer to this is that a ‘thick’ interpretation of the Rule of Law does not, or at least should not, inevitably lead to rule by lawyers. There is usually room for more than one interpretation of public law risks.  It is therefore possible to drive up legal standards while still allowing a legal risk to be taken where the law may be uncertain.  As the Attorney General said in his 2024 Bingham Lecture, it is not about having to choose between Parliamentary democracy or fundamental rights. 

There is undoubtedly a balance to be struck here, and the Government will, rightly, be constantly challenged on whether they have got the balance right.  Whatever the answer, the Government should be applauded for the intention.  It is vital for the public at large and our international counterparts to be aware of the Government’s all-embracing commitment to the Rule of Law since it is the principle upon which Britain’s democracy is based and our international reputation is judged. The perception that it has been allowed to slide has not helped domestically or beyond. Wherever the line lies in individual cases, the message itself is of paramount importance. 

An edited version of this article was first published by Politics Home in February 2025.