Web of accountability

Former law officer summarises the benefits of international law

International laws should not be seen as a threat to our national interest, a former Conservative attorney general argued this week. Baroness Prentis of Banbury KC, who served as senior law officer in the government led by Rishi Sunak from 2022 to 2024, said that it was because of the UK’s historical leadership in the field of international law that judges from Ukraine were willing to accept training from British lawyers — of whom she is one.

Baroness Prentis of Banbury KC taking her oath of office in the House of Lords last week

Delivering the annual Magna Carta lecture at Royal Holloway, University of London — which is less than three miles from Runnymede — Prentis said:

The Ukrainians have asked us from the UK to help because, almost uniquely as a nation, we have a very long track record of running our legal system in a fair and transparent way with judges who are pretty much incorruptible. They are prepared to take direction from us, to listen to our criticisms of their testing of evidence, to learn from our strong ethical traditions.

They see us for what we are — but for what we do not see ourselves — as historical leaders in the field of international law and lucky, so lucky, to have courts we can absolutely trust. They see in me — and in my co-trainer Sir Howard Morrison and our rolling panel of dedicated lawyers who give up their time very willingly to train others — a strong desire to pass on the rule-of-law ideals that were instilled in us.

Prentis has kindly allowed me to publish a text of her lecture. Addressing students at the college she herself had attended, she summarised the “web of accountability” that Ukraine was weaving with the aim of ensuring that Russia, as the aggressor state, paid for its actions in Ukraine. That web had five strands, she said:

1. National investigations: Around 99% of war crimes will be tried under Ukrainian national legislation in Ukraine. Since February 2022, 171,206 war crimes have been documented: 14,777 civilians killed, 31,666 injured. To date we have identified 896 suspects. We have completed indictments for 651 individuals and 178 perpetrators have been convicted.

2. The crime of aggression: Over 40 states around the world have formed the Special Tribunal for the Crime of Aggression against Ukraine. This, I hope, will be like Nuremberg. The International Centre for the Prosecution of the Crime of Aggression against Ukraine is already up and running in The Hague, supported by Eurojust. The evidence database is being added to all the time.

3. Co-operation with international justice: The Prosecutor General’s office is in daily contact with the International Criminal Court. Ukraine has now ratified the Rome statute which makes it a full member of the ICC and made sure that Ukrainian law is in line with international law.

4. Partnership work with other states: Twenty-seven countries are conducting their own investigations into Russian war crimes. We don’t know what the outcome of any negotiation is; nor whether, despite the rule of law, justice will in the end be another bargaining chip. Part of me is resigned to this, so long as it is a valuable one. But the rule of law here, and in other states around the world, will continue to march on.

5. Reparations for loss and damage: An international compensation mechanism is being developed. It is in three parts: a register of damage (now open), a compensation commission and ultimately a compensation fund.

The rule of law

After a definition of the rule of law, Prentis referred to the current debate on whether it includes compliance with a state’s international obligations. The role of attorney general, which she believed should be “fairly invisible except in government and legal circles” when things were going well, had become front-page news.

Referring to her successor, she said:

Lord Hermer made a serious speech to the Bingham Centre last October, focussing in part on the Chagos Islands and his view of the advisory opinion. A few weeks ago he followed this up in a speech in which he has now agreed some of the references he made, likening the views of those he disagrees with to those of a Nazi lawyer, were “clumsy”.

Unfortunately the row over this distracted us all from the central message of that speech, which is that the government is now pursuing a policy of what he calls “progressive realism” in the international legal space. Lord Wolfson made an excellent speech to Policy Exchange in March in which he described the row as a “rumble in the jungle”.

Prentis set out her own views:

International laws, often created by British lawyers and based on common law principles, should not be seen as a threat to our national interest. In fact, international law frequently regulates many of the interactions between nations, particularly in the environmental space, very well indeed.

As a serious partner, we will of course try to comply with the rulings of international courts and tribunals to which we are signatories. But if we really feel our national interest is not served by whichever rule is in play, we are free to walk away from whatever treaty or convention we signed up to. These decisions should be seen as what they are: essentially political rather than legal.

What matters is quite fundamental really — that when say we will do something as a nation and sign a treaty to that effect we do it. If we don’t like the direction of travel of whatever body we have created, we try to reform it and if necessary we leave.

But leaving the European Convention on Human Rights (ECHR) would be “painful and messy”, she continued. Amending the human rights convention would be a better way forward:

I hope it will be possible to work with other nations to make a convention fit for the challenges we now face. To that end, I wish the government had demonstrated their desire for progressive reform by signing the letter which nine other nations sent to the human rights court demanding changes.

Last Friday, the leader of the Conservative Party announced a commission to report in the next few months to consider the practical repercussions of leaving the ECHR. She outlined five legal questions which need to be resolved.

I think this is a useful and sensible way to approach this; but I hope that we will also factor in the reputational price of leaving. The Strasbourg court watches our news more closely than we realise. Change may be possible. It will be interesting to see how policy develops.

The rule of law matters, Prentis concluded. Specific provisions of Magna Carta might not be used much today. But its underlying principles were worth hanging on to and were still of use in the world as we found it now.