SPEECH TO MARGARET THATCHER FOUNDATION ON THE RULE OF LAW, 16/06/25
RT HON SIR ROBERT BUCKLAND KBE KC
“And we are here as on a darkling plain
Swept with confused alarms of struggle and flight,
Where ignorant armies clash by night.”
Matthew Arnold’s mid- 19th century poetic image of the “melancholy withdrawing roar” of the English Channel in his poem, “On Dover Beach” might seem an intriguing place, to begin this lecture on Margaret Thatcher and the Rule of Law, but in his memorable invocation of the decline of faith and the rise of chaos and uncertainty, I would like to think that firstly, Lady Thatcher, with her deep and public Christian faith, would have appreciated the reference and that secondly, there are important parallels to be drawn in the here and now with what I see as the growing confusion and discord surrounding the rule of law and the increasing dislocation between the worlds of politics and the law both here and abroad.
It is almost forty years to the day that Lady Thatcher, delivered a major speech on the rule of law to the American Bar Association at the Royal Albert Hall. Although her career as a chemist is often remembered, the fact that she was a qualified barrister is all-too-often overlooked. The ABA is currently in a major stand-off with the Trump Administration on a range of issues, from attacks on lawyers who acted for the previous administration against Mr Trump’s interests or for Executive Orders and other decisions that seem to be showing a disregard for the rule of law.
In his March “Meet the Press” interview, when he was asked if he would uphold the Constitution of the US, the President said: “I don’t know, I’m not a lawyer”. Not only had he seemingly forgotten the very words of the short and simple Presidential Oath that he has now taken on two occasions, but his referral to it being a matter for lawyers symbolises a disturbing acceptance that the law should be purely for the lawyers, when the precise opposite must be the case. The law MUST be for everyone; it must be certain, accessible and explicable. That for me is the very essence of the rule of law, not this contemporary fashion for the rule of law reflecting moral values or an underlying concept of “legality” that risks judicial overreach.
Margaret Thatcher, on the other hand, had no doubts or knowledge gaps. On International Law, she had this to say:
“It is now 40 years since the United Nations Charter was launched with such high hopes. Yet in that time we have not seen the emergence of an effective and enforceable body of public international law. In relations between countries, justice is still a remote ideal. All too often might not right prevails. I recall the sombre words of the classical historian who described our world as one where the strong do what they will, and the weak suffer what they must…
For nationally and internationally the law is not only a negative and restraining force, it is a creative and liberating force. It enables the individual, within the framework of order, to exercise his talents freely, in the sure knowledge that the just rewards of those talents will be secure.”
She was crystal clear that international law should be used to objectively police treaty obligations freely entered into by contracting states as part of a common geopolitical aim. She saw legal stability not only as a force for freedom but as a source of economic certainty for investors too. As the prospect of an Iran with nuclear weapons draws closer, then some international treaties ought to be treated as helpful, not damaging.
I am certain that she would have harboured great concerns as to the use of international courts as opposed to democratic forums to advance sectional, regional or national interests. The over-use of forums such as the ICJ or ICC for the resolution of issues that are either best or first dealt with domestically, bilaterally or on the floor of the UN Security Council or General Assembly, has been exemplified by, for example, South Africa’s case against Israel at the ICJ, Mauritius’s case against the UK in the same Court and the issuing of arrest warrants in the case of Israeli political leaders by the ICC, which puts itself in danger of being part of a running commentary on current conflicts rather than being an objective and rational assessor of war crime allegations properly brought before it.
In an age where the UNs political forums seem paralysed and sclerotic, activism through court processes is growing, against a backdrop of political activity by the likes of China. In an age when politics often masquerades as law, and law as politics, we had better not be naive as to the consequences of this.
In that 1985 speech, Mrs Thatcher, a supporter of this settlement, put things very clearly. In a section entitled “Law and Politics”, she said:
“This indeed is the frontier on which the politician and the lawyer meet and mingle.
The desire for justice imposes very firm requirements on the politician. First a recognition that he can never be above the law. Second, his unstinting support for the courts which administer the law and for the police who enforce it
And third, in constructing legislation, his duty to give an honest account of what is practicable and not merely a rhetorical account of what is desirable.”
I say at this point that I believe she would have looked dimly at suggestions by politicians that elements of two-tier justice have been appearing in our system, when in fact there is no real evidence of this at all. I also see a growing trend amongst politicians of a more populist hue to take to the easy heights of rhetoric rather than acknowledging the prolixity of complexity.
How have we got to this state? Only a generation or so ago, in this country, the worlds of law and politics were, if not entirely compatible, much more connected with each other. Lawyer-politicians were a more common feature of public life, and the Lord Chancellor, who was a member of all three branches of the constitution, acted as a lynchpin, resolving tensions, speaking up for the judiciary whenever necessary and embodying our “checks and balances” constitution. Judicial Review of administrative action was focused on errors in the process, rather than the underlying policy itself. The independence of the judiciary and the legal profession was unquestioned, but the hidden wiring of our system worked well.
There is no doubt that the UK constitutional settlement has been changed and, I believe, helped to give rise to the worrying dislocation that we increasingly see. The Blair/Brown Labour Government bears a great deal of responsibility, I believe. The Human Rights Act, which came into force twenty-five years ago, helped to entrench an approach to the European Convention that to my way of thinking and that of many others, has increasingly drawn judges, however reluctantly, into the political arena. Then, Labour introduced its Constitutional Reform Act in 2005, and, in the name of separation of powers, the Judicial Committee left the House of Lords, becoming a Supreme Court and the Lord Chancellor’s role was downgraded.
Instead of maintaining the old principle of comity, or the need for mutual respect between Parliament and the courts, the two worlds were split from each other. Instead of understanding, knowledge and respect, suspicion, remoteness and, dare I say, a degree of ignorance has crept in.
Accompanying all this constitutional change has, in my opinion, been a cultural change. Lawyers like me who decided to go into politics to legislate and to develop policy were seen as oddities, as opposed to those who focused solely on a legal career. Instead of service in Parliament being viewed as part of the development of legal and indeed judicial knowledge, suspicion and contempt of the political process itself crept in.
In Parliament, understandable exasperation amongst politicians about legal activism has grown as some lawyers readily took up a campaigning stance, publicly identifying with their clients rather than leaving their politics at the door of the office, chambers or the courtroom. The 24/7 nature of politics has meant a reduction in time and space to understand or examine judicial decisions, which often contain nuanced and carefully reasoned explanations.
We have now reached the stage where our current Prime Minister, who enjoyed a distinguished legal career before entering the Commons, is sometimes described by opponents as “A lawyer, not a leader”, which suggests that the two qualities are mutually exclusive. I am sure that Margaret Thatcher would have begged to differ, as would David Lloyd-George and Abraham Lincoln, to name but a few rather successful lawyer-leaders.
As public debate continues to coarsen, mainly thanks to social media, there is real concern and anxiety about the threats and abuse that increasingly are being hurled at judges. This isn’t just about the safety of judges but is also about their independence - their ability to operate impartially and independently. I believe that this has arisen because of an increasing mistrust of lawyers and their motives, and a belief that, far from being the solution, that law is the problem.
There is no doubt that at least part of this has been occasioned by members of my profession who forget that the Rule of law does not mean rule of lawyers. We should have no truck with those who claim that the Rule of Law can trump Parliamentary Sovereignty, and that judges should invoke a more general authority to intervene based on concepts such as legality which is really the substitution of subjective moral views for a stricter application of the law.
As Lord Reed of Allermuir, President of the UK Supreme Court, put it in a speech only last week: “Politicians are concerned with what the law ought to be. We [judges] are concerned with working out what it is”. The Supremacy of Parliament means that it has the power to change the effect of judicial decisions through legislation. And on the reverse side of the coin sits the Rule of Law, which, like Parliamentary sovereignty is not the law itself but a central political principle.
Mrs Thatcher made this key observation about law and society in her RAH speech:
“..the rule of law of itself does not guarantee justice. As Edmund Burke…put it: “It is not what a lawyer tells me I may do: but what humanity, reason and justice tell me I ought to do”. That is why the law needs to be fashioned and administered with an awareness of the contemporary concerns of the world outside the court. The law cannot stand separate from the society of which it is part.”
The way in which this truth should be maintained is via legislators developing statute law and by judges enforcing that law and, on occasion and at the right level, being able to develop the law in order to reflect the changes that inevitably occur in our society, but carefully based upon clear foundations that are part of the organic development of our law, rather than to graft on concepts that just do not belong in our system.
She went on to talk about the three heresies that must be rejected by those of us in public life to maintain true justice:
“The first heresy is that if only a determined minority gather together in large enough numbers to bully or to intimidate others the law either will not or cannot be enforced against them…
A second… heresy is that, if you feel sufficiently strongly about some particular issue…you are entitled to claim superiority to the law and are therefore absolved. This is arrogant nonsense and deserves to be treated as such.
It brings me to a third heresy, namely that the law can be obeyed selectively. Those groups who would pick and choose among our laws, obeying some and breaking others, imperil liberty itself. The law must stand as a whole and be obeyed as a whole.”
I would argue that, in making the changes to public order law made by the last Government and the overdue reform to the common law of nuisance, we were reflecting the accuracy of her statement. No section of our society, however noisy, should be allowed to act with impunity. Equality before the law means equality before the law of our land, not a selective choice of other laws or customs that run counter to our legal system.
What then, should be our response to all of this? Rather than denying the importance of judicial review and challenge as one of the essential checks and balances in our constitution, Conservatives should be seeking to genuinely help to create “good law”, whilst clearly making the case that, unlike the activist left and their notion of “Good Law”, we do not seek to conduct politics by other means.
Overwhelmingly, of course, this should be done in Parliament, where we should stand firm against notions such as the creation of socio-economic legal “rights” which are alien to our concept of statutory duties on public bodies and which also run contrary to the concept of fundamental human rights as set out in the European Convention.
If we are to restore the essential comity that should exist between the armies of law and the armies of politics, then let us not merely sit on the shore and watch, but to be ready to take the necessary action.
Rt Hon Sir Robert Buckland KBE KC is a former Lord Chancellor, Solicitor General and Conservative MP. He is a practising barrister, Third Church Estates Commissioner, Senior Counsel at Payne Hicks Beach LLP and a member of the DAC Beachcroft Policy Unit. He is a Senior Fellow at the Mossavar-Rahmani Center for Business and Government at Harvard Kennedy School.
