Address to the English Clergy Association
The Rule of Law and the role of the Attorney General
Monday 16 May 2011
Omnes legus servi sumus ut liberti esse possumus
“We are the servants of the law in order that we might be free”.
Thus Cicero explained the importance of the rule of law.
Itis the cornerstone of democracy because good law protects the freedoms on which a democratic society depends.
And as we have seen in our own history, it has also been essential in developing the principles of freedom of religious conscience and worship that we today take for granted and which with Christian doctrine underpins the Church of England to which we belong. Indeed as I sought to set out in a talk which I gave at Marylebone Parish Church last autumn the development of “British Values”, and in particular the tolerance of diverse philosophical and religious views within the framework of the Law and the right to freedom of expression is a process in which the Church of England has played and is still playing a key role in our national life.
Ensuring that the Government respects the Rule of |Law, is at the heart of my job as Attorney General.
So it is a great pleasure for me to have been invited here today and to have been encouraged to take the rule of law as my topic.
I would like to briefly explore some of the issues I have to address as Attorney General and also to look at some challenging areas where there is argument as to what laws are required to maintain the principle of the rule of law in our country.
But perhaps first we need to look briefly at what the rule of law means, because it’s my experience that this is a term which is often used by people to mean different things.
In his book “The Rule of Law” the late Lord Bingham, identifies that this is a term of relatively recent invention. He attributes it to A.V. Dicey the Vinerian Professor of English Law at Oxford in the late 19th century.
Dicey gave three meanings to the term.
Firstly it was that no man is punishable or can suffer any detriment save for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.
Secondly, that no person was above the law, however powerful he might be.
Thirdly, that it was the predominance of the legal spirit in English institutions which meant that our unwritten constitution including in particular the right to personal liberty had developed out of judicial decisions on the rights of individuals rather than from general principals in a written constitution.
And it was also clear, even in Dicey’s time that this spirit was reflected in a number of statutes . Magna Carta 1215, Habeas Corpus Act 1679, the abolition of torture along with the Court of Star Chamber in 1640, and the Bill of Rights of 1689 which are all part of this structure. But any of these could and have in some cases been overridden by Parliament-detention without trial in time of emergency is an obvious example.
What has changed dramatically since Dicey taught, is that in the 60 years since the end of the Second World War, the United Kingdom has adhered to a number of international treaties placing obligations on it as to how it should behave, both to its own citizens and those resident here but also in its behaviour on the international stage.
Some of these obligations are directly enforceable through our courts and part of our law. Examples are the European Union Treaty and the Human Rights Act which largely incorporates the European Convention on Human Rights.
But others are not enforceable directly. The principles of the UN Charter and Security Council resolutions and decisions of the European Court of Human Rights all fall in this category. At the end of the day all could be ignored if the UK is ready to take the international policy consequences.
But the Ministerial Code reissued by each incoming Prime Minister states plainly that it is the duty of every UK minister and civil servant to observe these obligations, unless or until we resile from them formally. They are thus treated as part of the structure of legal principles governing how government behaves. They are intended to provide an assurance that our actions as a nation conform to internationally recognised standards of ethics and human rights.
Now the Office of Attorney General is an ancient one though much changed over the years.
Legal historians like to argue about who the first Attorney General was, with some suggesting the role may go back as far as the appointment of Lawrence del Brok in around 1247, whose function was to sue “the King’s affairs of his pleas before him”. The first person to be called “Attorney General” was John Herbert who was appointed as the King‘s principal law officer in 1461.
So it was with some trepidation and a sense of history that almost exactly year ago I went to the Royal Courts of Justice to swear my oath of office. It dates from the 16th century. I swore to:
“duly and truly minister The Queen’s matters and sue The Queen’s process after the course of the Law, and after my cunning … I will duly in convenient time speed such matters as any person shall have to do in the Law against The Queen as I may lawfully do, without long delay, tracting or tarrying the Party of his lawful process in that that to me belongeth. And I will be attendant to The Queen’s matters when I shall be called thereto.”
The language may be old but the principle of the oath, that people should have the prompt protection of the law is clear and remains true. It also requires me to get the Queen’s permission to go on holiday abroad, so I should not leave this duty uncovered.
In undertaking to “truly counsel The Queen” and “duly and truly minister The Queen’s matters … after the course of the Law”, and to ensure that parties were not denied their “lawful process”, I am without any doubt that I was swearing to act in accordance with the law and to uphold the rule of law.
The role of the Attorney has changed substantially over time but what history has bequeathed us is an Attorney General who is a Minister of the Crown and Chief Legal Adviser to Her majesty’s Government who are her servants in carrying out the terms of her Coronation Oath administered by the Archbishop of Canterbury and which puts upholding the law and dispensing justice at its heart. And in carrying out those functions, my role is to support the rule of law.
First and foremost, I do this through being the Government’s chief legal adviser.
The core function of the Attorney General is to make sure that Government Ministers, act lawfully, in accordance with the rule of law. I am also a politician, a Minister of the Crown and a member of the Government.
Some people are concerned about whether a politician and member of the Government is best placed to ensure that the Government acts lawfully in every thing it does. It is said that the current Office involves too many conflicts of interest.
But I believe the current arrangement, as awkward as it may look on paper, like so many of the eccentricities in our constitution, works because it puts at the heart of Government an independent lawyer who is trusted by those he advises because he is one of them.
I think the role of the Attorney General as the Government’s Chief Legal Adviser was neatly summed up by the former Attorney General, Lord Mayhew of Twysden, who said, “The Attorney General has a duty to ensure that the Queen’s ministers who act in her name, or purport to act in her name, do act lawfully because it is his duty to help to secure the rule of law, the principle requirement of which is that the Government itself acts lawfully”.
This is reinforced by the Ministerial Code, which requires that the Law Officers must be consulted in good time before the Government is committed to critical decisions involving legal considerations.
I also have a formal role in the legislative process. I am member of the Cabinet’s Parliamentary Business and Legislation Committee – this Committee is not know much outside of Whitehall and undertakes an important function in authorising the introduction into Parliament of all Government Bills. In particular, the Committee’s role is to consider the readiness for introduction of Bills. My role is to ensure that Bills that are introduced are legal and proper. Ultimately the Law Officers have the power to block a Bill if we have unresolved concerns about its legality or propriety.
So my main role is to advise on the legality of Government action while my fellow ministers have the responsibility of developing and presenting policy and supervising administration.
By longstanding convention, also recorded in the Ministerial Code, neither the fact that the Law Officers have advised or not, nor the advice that the Law Officers have given to, may be disclosed.
However, recently an exception has been made to that rule.
The Prime Minister has confirmed that my advice was sought on the decision to deploy armed forces into armed conflict in Libya. He did so because of the exceptional nature of this decision which is the one of the most important decisions any Government can take. Any decision which risks the lives of our armed forces and will inevitably lead to casualties must be taken properly with the benefit of legal advice. I cannot disclose my confidential advice, but I can assure you that in front of my mind was the need to respect the rule of law and to ensure our actions were compatible with the United nation security council resolutions that gave it a legal framework.
While I can’t give you other examples, I can assure you that I have not been short of work. I, with the other UK Law Officers – the Solicitor General Edward Garnier and the Advocate General for Scotland Lord Wallace – provide advice on a wide range of areas particularly focusing on the compatibility of the Governments’ legislative programme with the European Convention on Human Rights and the law of the European Union.
Furthermore our work only gives a tiny picture of all the legal work that goes in to the development of Government policy and legislation. Many of the difficult legal issues that policy development gives rise to never come to the Law Officers. The day to day guardians of legality and propriety in all that the Government does are the lawyers of the Government Legal Service.
The Law Officers have a special relationship with the Legal Advisers to Government departments which entitles them to consult us on any matter. This ensures the professional independence and standards of the advice given by them and their staff. Government lawyers may consult the Law Officers if they have doubts about the propriety of any proposed course of conduct in a matter for which they have responsibility. This means that they can discharge a role in their respective departments that reflects ours at their head, not as politicians of course but as Civil Servants who are also independent professionals. And from this position of strength they advise Ministers on the legality of what they want to do, and they work up solutions when what is proposed collides with the constraints imposed by, say, the Human Rights Act, or by our obligations under EU law.
The Law Officers do not become directly involved in that process, unless invited to do so. But our presence and the support that we offer to all Government lawyers is designed to enable them to ensure that the need for legality and propriety is woven in to the fabric of policy development and legislation right from the very start.
When a Bill is introduced in the House of Lords or Commons the Minister in charge is required by section 19 of the Human Rights Act 1998 to make a statement that in his or her view the Bill’s provisions are compatible with the Convention rights. Alternatively, if the Minister is not able to provide that personal assurance, then he or she must state that nevertheless the Government wishes the House to proceed with the Bill.
The Law Officers will consider the Human Rights memorandum that Departments are required to produce for the Parliamentary Business Committee. The memorandum sets out an analysis of the convention rights that are engaged by a Bill and an assessment of any interferences and justification for them in ECHR terms. The role of the Law Officers is to consider whether the department has adequately demonstrated the reasoning which underpins its conclusion that the Bill is compatible with the Convention rights.
In particular, the role of Parliamentary Counsel as the drafters of legislation is central to this process. They too are guardians of the rule of law and they often look to the Law Officers for support. Parliamentary Counsel advise departmental lawyers on matters of legal propriety as they draft a Bill, and refer matters of concern to the Law Officers if they cannot be resolved. This is a useful way of ensuring that the main legal actors in the Bill process co-operate, and provides confirmation from Parliamentary Counsel that in the process of drafting the Bill matters of interest to the Law Officers can be considered and satisfactorily resolved.
I also seek to uphold the rule of law in exercising a number of public interest functions conferred on my office. This includes the power to refer certain sentences which are considered to be too lenient to the Court of Appeal for reconsideration, the power to appoint special advocates to help the court in the public interest if an issue of difficulty arises in a case, usually concerning problems over evidence which cannot be disclosed to all parties because of its implications for national security and the power to go to the High Court to seek an inquest or a fresh inquest, if the interests of justice require it.
I am also the protector of charities, that remarkable vehicle, the creation of our Elizabethan religious settlement by which good works may be channelled and developed for the public benefit. I have the power to intervene to protect a charity and the ability to refer issues of legal interpretation to the Upper Tier Tribunal to resolve issues of legal principle. I have currently done this in respect of the “public benefit test for fee paying schools and also for the public benefit test for the relief of poverty where the scope of the charity is restricted to a small class of person, arising out of the new Charities Act.
Finally I have a central part in the contempt of court jurisdiction ensuring that trials are not undermined by any media reporting.
I must begin this topic by acknowledging the importance of the press in reporting what takes place in our criminal justice system.
It is clear to me that the operation of our Criminal Justice System, just as our political system, is underpinned by the existence of an active, enquiring and above all free press which is able to report and comment upon proceedings.
The right to free speech and open justice is of fundamental importance but at times can clash with another fundamental right – that to a fair trial.
The contempt of court jurisdiction exists to protect the right of open justice and above all that of a fair trial. The two are inextricably linked and essential parts of the administration of justice.
There are however some occasions when these two rights cannot just run side by side and one must take priority over the other.
The starting point is, as I believe it should be, in favour of open justice protecting fair and accurate contemporaneous, written in good faith, legal reporting. However the publication of material which creates a substantial risk that the course of justice will be seriously impeded or prejudiced will fall foul of the legislation. Without fair justice there cannot be any justice and no rule of law upon which our society must be based.
In that situation it is for me to decide whether to instigate proceedings against the publisher. And I have already done so in a small number of cases.
For example, during a murder trial in 2009 the day after the prosecution had opened their case two newspapers (the Daily Mail and the Sun) published online a picture of the defendant holding a handgun. I brought proceedings against both newspapers under the Contempt of Court Act 1981 and both were found guilty of contempt early this year. The interesting part of this case is that the photograph was only in the online edition and was only available for a number of hours. Nevertheless the Court agreed with my assessment that the publication could have seriously impeded or prejudiced the defendant’s trial. This case demonstrates the difficulty of trying to keep up with the ever changing media landscape.
You will also be aware that I commenced proceedings against two newspapers last week in relation to the coverage surrounding Mr Chris Jefferies’ arrest and detention in relation to the murder of Joanna Yates. As these proceedings are ongoing I can’t comment further until the proceedings are concluded.
Now as I mentioned at the start of this talk the rule of law, or perhaps I might change that to “how the law should rule” is not without controversy. There would be few people, I think who would challenge the first two meanings of Dicey’s definition, but you can hardly open your newspaper without noticing that the modern development of rule of law principles is not without controversy.
Thus there are a number of issues where it is argued that the need to be compatible with the European Convention on Human Rights is creating confusion and undermining the decisions of a democratically elected legislature-the rule of law turning into the rule of judges national and international.
There is the current controversy over super injunctions and the issue of privacy versus freedom of speech. It derives from the search by our national judges to reconcile the right to Freedom of expression in Article 10 of the ECHR with the right to a Private and Family Life in Article 8. Parliament expressly provided in the Human Rights Act that special emphasis should be given to the right to freedom of expression in any conflict of rights but the judges have still sought to protect privacy in a number of cases where previously there would have been no protection.
Another is the confrontation between The House of Commons and the European Court of Human Rights over prisoner voting rights, with calls on the government to ignore the court’s decision and implement no change, notwithstanding it being an international treaty obligation on the government to do so, unless of course we can get the court to change its mind on the point.
And as a Christian, Church of England audience, some of you may share the disquiet expressed by Lord Carey that the current Equality Act and its predecessor legislation has failed to strike the right balance between the right to freedom of thought, conscience and religion in Article 9 of the ECHR and the right to equality of treatment in access to services for all irrespective of sexual orientation based on the principles of freedom from discrimination enshrined in Article 14, with the consequence of Band B owners being unable to refuse gay couples a room.
You may not be surprised that I don’t intend to get drawn into the merits of these issues today or this talk is going to go on far into the afternoon! But they do raise some important general issues.
The first is to highlight what should be obvious but is often ignored in these debates. Laws are man made and reasonable people may disagree on their merit and effect. Perfect laws will always elude us and the scope for change is something to which we should always be open minded.
Secondly, none of the above legal interpretations removes Parliament’s right to have the last word in the matter if it wishes. It is always open to us to change the law by means for example of a Privacy Act if we want to legislate in that area, or to remove ourselves from the jurisdiction of the European Court of Human Rights if we are prepared to accept the consequences of doing so for our international standing and the loss of the benefits membership of the Council of Europe has conferred. The rule of law has not substituted abstract principles or judicial discretion for Parliamentary accountability. The courts have made these decisions because Parliament has given them the power to do it.
Finally we should be wary of suggestions that the solution lies in the short cut of ignoring the rules with which government or public disagree, even if those rules can be ignored with impunity as they are international obligations unenforceable through the courts. Such a step makes it much harder to instil respect for the law, be it to a Twitterer who is considering breaching a privacy injunction or a young demonstrator over tuition fees who decides to defy the police. The standing of a democratic Government is raised by its self restraint and its adherence to its own self imposed rules. It may at times be inconvenient, messy and unsatisfactory for government to observe the rule of law to the letter, but it marks it as being in a quite different category from those which don’t. We can read about them every day of the week and what it is like to live under them. We can also see from the example of rule of law states that have tried short cuts, like the USA over Guantanamo, what a tangled mess they then get themselves into.
At the start of this talk I pointed out that the Church and every religious group has benefitted from the principles of the rule of law despite the challenges which religious pluralism and secularism may bring. Indeed it can be said that the development of the office I occupy and the defence of the rule of law that `1my role in government is yet another facet of the influence of Christian principles of justice and tolerance in our constitution, even if today those principles enjoy a much wider acceptance. Other countries enjoying freedom and democracy may subscribe to the principle today, but they have developed quite differently unless coming from our own Common Law source. As is so often the case with our governance we have acquired a tool to control the power of the state pragmatically and without abstract philosophical principles. It works as it improves our collective wellbeing. We should not put it on a pedestal. It is there to be argued over and debated and it will change over time in its details but above all it is there to be put to good use.
Rt Hon Dominic Grieve QC MP