Rule of law

It will be ‘the lodestar for this government’, attorney general promises

The rule of law was rightly given pride of place at the Royal Courts of Justice yesterday when the new government’s three leading legal figures were formally sworn in. The new lord chancellor was welcomed by England’s two most senior judges, with the attorney general and solicitor general taking their places in court.

(L-R) Baroness Carr, Shabana Mahmood, Sir Geoffrey Vos MR (picture by Catherine Baksi)

Baroness Carr of Walton-on-the-Hill, the lady chief justice of England and Wales, reminded Shabana Mahmood, the lord high chancellor of Great Britain, that “the primary duty — the primary service — of any government is to protect its citizens”. That, said Carr, was achieved through securing the rule of law at home and abroad.

After Mahmood had sworn to

respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible,

Carr told her:

Your oath today is one expression of that duty. It is also given effect by the statutory duties placed upon you to uphold the constitutional principle of the rule of law, the independence of the judiciary and to ensure that there is a properly financed, efficient and effective system to support the carrying on of the business of the courts and tribunals.

Securing the first of the three duties necessarily depends upon securing the latter two.

Mahmood, the first lord chancellor to take her oath of office on the Qur’an, spoke movingly of the honour she felt in doing so. As the child of immigrants from rural Kashmir, she had the highest regard for the ancient office of lord chancellor. It was not something she could ever have dreamed of attaining when, as a child, she helped her parents at their corner shop in Birmingham.

“Nobody is above the law,” Mahmood continued, “not even the government.” Her oath to defend judicial independence was one she took very seriously. Though she did not mention her only female predecessor by name, Mahmood distanced herself from Liz Truss by telling the assembled judges that they should never be called “enemies of the people”.

There was a rather friendlier dig at her government colleague Sarah Sackman, sitting across the courtroom. Mahmood had been an MP for 14 years before achieving government office. Sackman had been appointed solicitor general after five days as an MP.¹

Sackman will deputise for the attorney general, Richard Hermer KC, and speak for the law officers in the Commons. In a little-noticed addition to their 16th-century oaths of office, both promised to “well and truly respect the rule of law”. This would be the “lodestar for this government,” the government’s senior legal adviser added when he addressed the court.

It was Hermer’s first public speech as a member of government and he made some important commitments. As a text is not yet available elsewhere, I’m publishing it in full.

The attorney general said:

It is a profound privilege to address the lady chief justice and the lord chancellor and all the members of this court. It is also a personal pleasure for me to make submissions in this courtroom when the risk of being asked tricky legal questions is at least lower than normal. 

Being in government is a privilege that carries the responsibility of having to make hard choices but as we face the challenging path ahead the rule of law will be the lodestar for this government.

Governments should be judged by their deeds not by their rhetoric but I hope the professions and the public can take some comfort from the fact that, from the prime minister down, the new government is comprised of individuals who have the rule of law imprinted into their DNA, none more so than our new lord chancellor. 

For all the reasons set out by my lady [the lady chief justice] and for many more, I can tell the court that we have a lord chancellor with the character, authority, intellect and experience not just to protect the rule of law but to begin to address the deep challenges facing our justice system. 

We also have a solicitor general who brings precisely the right mix of legal acumen, political nous and a dedication to public service to help make law and politics work together.  

We wish to work with all in our mission to protect and promote the rule of law. Its principles are at the heart of the organisations the law officers superintend and we will work collegiately with the Bar Council, the Law Society and CILEX in what I know is our shared endeavour to entrench the rule of law and promote human rights.

We recognise the imperative of seeking to ensure a cross-party consensus about our shared fundamental values and how we protect them for future generations. The values that we are seeking to protect are not the property of any political party. They are not Labour values or Conservative values: they are British values, indeed in many respects universal values. 

The task has never been more urgent. In recent years, events at home and abroad serve to remind us all that once you start pulling on a single thread of the fabric of the rule of law system, when democratic norms are whittled away through attrition, the risk of systemic unravelling is great and the concomitant task of retrenching standards we once took for granted, very difficult indeed.

So the law officers will work together with the lord chancellor on our mission to protect and promote the rule of law. There is much to be done — too many tasks to describe in my allotted time — but let me say this: 

We will support the lord chancellor’s mandate to protect the independence of the judiciary. Allied to this, we will work with her to promote better appreciation in Westminster and beyond of our constitutional balance in which a respectful relationship between parliament, the executive and the courts is understood to be the bedrock of our framework of governance.

We will work closely with the lord chancellor to promote the rule of law amongst the public, not least young people — seeking to use it to rebuild trust in our political system by explaining how it serves all of us and that no-one, least of all politicians, is above it. 

Just as we will promote the rule of law domestically, so we will seek to promote international law and the rule of law in the international legal order. We will support the foreign secretary in all his efforts, cognisant of the importance of international law and the rule of law for the prosperity and security of all global citizens.

Looking inwards, we will seek to promote the highest standards in how we legislate, seeking to increase accessibility and certainty in how we make law — including not abusing the use of secondary legislation

Finally, as law officers we will seek to provide the government that we serve with legal advice of the highest calibre and ensure that law is at the heart of everything that it does. Notwithstanding the law officers’ commitment to the political aims of the government, our legal analysis will always be guided by law, not politics. As I told a meeting with all Government Legal Department staff last week, it is our job to speak truth to power.

Sometimes we will get it wrong and in their judgments these courts will explain why, and we will seek to learn and do better. That is how our system works. It is, as Lord Bingham said, a cardinal feature of the modern democratic state and the cornerstone of the rule of law.  

Hermer’s remarks were listened to in the crowded courtroom by judges from all levels of the system, including many justices of the UK Supreme Court. Most had to stand, with the Court of Appeal judges finding room in the dock. They had all seen a new lord chancellor sworn in far too often over the past decade and more. And they very much wanted to believe Mahmood and her colleagues when she said she intended to be in office “for the long haul”.

That hope was shared by the other member of the first all-female partnership to lead the justice system since the lord chancellor ceased to be head of the judiciary. The lady chief justice told Mahmood:

There will no doubt be challenges and choices to be made today and tomorrow. That is an inevitable feature of governing. We will work with you and your ministers as you face these demands. I very much look forward to forging a stable, long-term partnership with you as lord chancellor — within, of course, constitutional bounds — in the service of justice.

1. Fortunately, my prediction didn’t stop her getting the job.