Attorney Generals Office
On Monday 10 July, the Attorney General Victoria Prentis KC MP delivered a speech to the Institute for Government titled The Rule of Law and Effective Government
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 isnt always easy going. It is the relationships founded on respect and trust that survive. A healthy relationship isnt just good for the parents - and there are three of them were 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 others 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 Lords 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 Governments 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 didnt 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 i