Rule of law

Shadow attorney general defends the principle — as he sees it

The political gulf between the attorney general and his Conservative shadow will deepen later today when Lord Wolfson of Tredegar KC delivers a major speech on the rule of law.

At an event organised by the think tank Policy Exchange, Wolfson is expected challenge some of the assertions made by Lord Hermer KC in his lecture last October to the Bingham Centre for the Rule of Law

Perhaps the deepest divide between the two barristers-turned-politicians is to be found in their approach to international law and the effect of international treaties.

Hermer said last year that the government had reached agreement with Mauritius to settle the historic sovereignty claims over the Chagos Archipelago “in a manner that successfully marries our international law obligations with vital national security requirements”.

The attorney general was referring to the advisory opinion on the Chagos Islands delivered by the International Court of Justice in 2019. But Wolfson argues that there was no need to surrender a territory that is critical to the UK’s national security on the basis of a non-binding opinion that might or might not lead to a future adjudication.

Turning to international humanitarian law — the law of war — Hermer said in October that the UK had met its obligations “by compliance with our arms licensing criteria — applying law not politics”. The government, he added, had “made plain our commitment to our cornerstone international institutions, not least the International Court of Justice and the International Criminal Court”.

On arms licensing criteria, Hermer’s assertion of “law not politics” will be challenged in the House of Lords today by the former Conservative leader Lord Howard of Lympne CH KC. And Wolfson accuses the government of equivocating about whether it would seek to enforce a warrant issued by the International Criminal Court for the arrest of Benjamin Netanyahu. The shadow attorney argues that to detain the Israeli prime minister if he visited the UK would be contrary to UK legislation as well as international law.

In his Bingham lecture, the attorney general said the government would “abide by and unequivocally support the European Convention on Human Rights, including by complying with requests from the court for interim measures”. But Wolfson points out that the only obligation on a state set out in the human rights convention itself — as opposed to the court’s case law — is to comply with a final judgment of the court in a case to which the state is a party.

More broadly, the Conservative frontbencher argues that there are rare circumstances in which departing from international law may be the right thing for a state to do. There would be consequences — but failure to meet an international obligation would not breach the rule of law unless it threatened to undermine the entire legal order.

Turning to domestic legal issues, Wolfson maintains that it is perfectly acceptable for politicians to attack judicial decisions in parliament while maintaining respect for the rule of law. Last month, the lady chief justice criticised the prime minister for rejecting a judgment to which the government was a party, arguing that the proper way for ministers to challenge their defeats in the courts was through the appeal process. (Update: see further discussion in the comments below).

Like Hermer, Wolfson regards the rule of law as one of the foundations of a settled and decent society. But the two KCs disagree over how the concept should be defined — how “thick” it should be, to use the legal jargon. Wolfson is worried that an expansive view of the concept undermines other fundamental principles, such as certainty, predictability and the sovereignty of parliament. But he does not want it to become a party political issue.

Comment

It would be fascinating to hear a debate between Wolfson and Hermer on the rule of law. There is much common ground and perhaps one of the advocates might persuade the other to shift his position slightly. For the time being, though, that prospect seems a long way off.

Update 1500: the full text of Wolfson’s speech can be read online and there is a video recording on the same page.

• A Policy Exchange report today from a team headed by Lord Verdirame KC urges the government to withdraw from two international conventions that seek to end the use of anti-personnel mines and cluster munitions in armed conflict, arguing that both now serve as an impediment to greater allied security against Russian aggression.

• The European Court of Human Rights will rule today on a complaint against the UK government by a mother from Wolverhampton whose child was placed for adoption after the woman had been detained under the Mental Health Act. Update 0915: the court found no violation of the applicant’s human rights. It said the reasons given by the Family Court for refusing to make a special guardianship order and for making an adoption order were relevant and sufficient.