Speaking notes: I.

Stephanie Boyce speaking at Gray’s Inn Mixed

Messes:
‘Rule of law’ or ‘rules of the law’? Public perceptions of the law and what
it means for those who uphold it
Audience: benchers, members and students from Gray’s Inn and non-
member university students from Queen Mary University
Date: Tuesday 15 February
Speaking duration: Up to 40 minutes

1. Opening

Thank you very much Vice-Treasurer for that introduction.

It is a pleasure and a privilege to be here this evening to address you all.

I am delighted to see so many of you in the hall today, and even more
pleased to know there are many more watching virtually via the live
stream.

I understand that for most of you here today this event is a Qualifying
Session for student members, and an opportunity to build on your
knowledge of key areas of the law. You will be pleased to know that I
have chosen to tackle one of the meatiest topics there is in the law – that
of the rule of law itself.

2. The rule of law and parliamentary supremacy

The key question I want to answer in my lecture today is whether there

is an inherent tension between the political and legal elements of our
constitution.

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In many ways tension is to be expected in a mature democracy, and is a
sign that the system is working.

But this is an area that has become the subject of not inconsiderable
controversy and debate in recent years, and which has been given
particular life by the Government’s pursuit of a series of reforms to the
legal and constitutional framework.

There is a view held by some that political and legal institutions are
increasingly being drawn into conflict in a way that is damaging to the
UK.

For example, a previous occupant of the office of Lord Chancellor

claimed in a thought-provoking speech last year that the concept of the
‘rule of law’ has been “the victim of conceptual creep, which leaves it
open to hijack from politically motivated interests”.

He claimed, in particular, that the effect of this conceptual creep has

been to “set up a false dichotomy between the rule of law and
parliamentary supremacy itself”.

This is of course a concerning allegation. The rule of law is at the heart

of what it means to be a lawyer, whether you are a solicitor, barrister,
legal executive or member of the bench. Indeed, a requirement to
uphold it at all times is written in to the regulatory systems that govern
both your profession and mine.

And while the rule of law has political implications, being as it is the
fundamental basis on which our liberal democracy and system of justice

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rests, it is right to expect that it should not be weaponised to serve
purely partisan political ends.

But despite this, the former Lord Chancellor clearly feels that there is no
inherent antagonism between the rule of law and parliamentary
supremacy. That will certainly come as a relief to many of us.

Nonetheless, in his view the relationship between the legal and political
strands of the constitution have been strained and contorted. It is partly
for this reason that under him the Government began its constitutional
reform programme.

Today I would like to explore the claim that this is the case. To do so, we
must start at the very beginning and answer the apparently simple
question of what the rule of law is.

3. Defining the rule of law

The rule of law will be a familiar concept to all of us in this room, and no
doubt we all have some idea of what that concept represents both in
abstract and in practical terms. Yet producing a comprehensive
definition of the rule of law has proved to be a task that has eluded
generations of legal theorists.

Perhaps we should start with that great expounder of the British

constitution, A. V. Dicey.

Dicey explained the rule of law with reference to three principles. The
first is that “no man is punishable or can be lawfully made to suffer in

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body or goods except for a distinct breach of law established in the
ordinary legal manner before the ordinary courts of the land.”

In other words, the legal system in a society based on the rule of law is
defined by its clarity and its lack of arbitrariness.

His second principle states that “every man, whatever be his rank or
condition, is subject to the ordinary law of the realm and amenable to the
jurisdiction of the ordinary tribunals”. Put simply, the rule of law demands
that everyone is considered equal in the eyes of law – even those of
wealth, prestige and power.

Dicey’s third and final principle is more contestable. It holds that the rule
of law requires that important liberties and rights be protected by judicial
decisions – in other words, by the common law – rather than by
particular statutes or written constitutions. Needless to say, this might
not be an understanding that would be shared by many from outside of
the British legal tradition.

More recently, the former Senior Law Lord, Lord Bingham, turned his
hand to producing a more modern definition of the rule of law. Rather
than three principles, Lord Bingham outlined eight principles that he
considered to be fundamental to the rule of law. These are:

1. The law should be accessible and predictable;

2. Legal questions should be determined according to law, not by the
exercise of discretion;
3. The law should apply equally to all, except where objective
differences justify differentiation;

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 4. Ministers and public officers at all levels must exercise the powers
conferred on them in good faith, fairly, for the purpose for which
the powers were conferred, without exceeding the limits of such
powers and not unreasonably;
5. The law must afford adequate protection of fundamental human
rights;
6. Means must be provided for resolving without prohibitive cost or
inordinate delay, bona fide civil disputes which the parties
themselves are unable to resolve;
7. Adjudicative procedures provided by the state should be fair; and
8. The state must comply with its obligations in international law as in
national law.

Since Lord Bingham quite literally wrote the book on the rule of law we
might consider the case to be closed. But there is still vibrant academic
debate about the proper extent of the rule of law, and the nature of its
implications for legal practice, politics and society as a whole.

Something that both Dicey and Lord Bingham agree on, however, is that
the rule of law goes beyond the mere commandments of the law.
Indeed, this is a view that is shared by most academics and jurists;
Jeremy Waldron, for instance, draws a clear distinction between ‘the rule
of law’, which is a philosophical and legal ideal, and ‘a rule of law’, which
is much more mundane, referring to a specific rule that is required by
law.

The question is, is it right to separate the abstract from the practical in
this way when discussing the rule of law? I believe it is helpful here to
turn away from academic postulation for a moment, and explore how the

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concept of the rule of law is understood on the ground by ordinary
people with no legal training.

4. Public understanding of the rule of law

We at the Law Society wanted to understand exactly how members of

the public conceive of the rule of law, and of the justice system more
generally. So, early last year we commissioned independent external
research to explore public attitudes on this topic and test how the
ordinary person on the street’s view compares to those of academics
and legal professionals.

The results were incredibly revealing. Public support for the rule of law is
very high, with people expressing high degrees of trust in judges and
lawyers and sharing the view that the courts underpin fair play.

In follow up polling, we found that 97% of adults in the UK agreed or

strongly agreed with the statement that ‘everyone should be treated
equally under the law’, and 94% agreed that ‘it is important for the UK to
be seen as a country which upholds the law’.

However, our research also revealed a key difference in the way the
public understands the rule of law. Rather than seeing it as a matter of
high principle, as Dicey and Bingham do, the public very clearly sees the
law in terms of ‘the rules of the game’.

We can learn a lot from this mechanistic understanding of the rule of

law. What matters to the public is not the principle, but the fact of the law

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being adhered to at all times. Everyone has a duty to follow the rules,
and the public expects these rules to be properly applied to everyone.

Going back to the question I posed at the very start of my talk, there is
nothing in this to suggest that the rule of law and politics should ever
need to come into conflict. It matters not how the law is made, or what its
content is, as long as it is properly enforced and followed by everyone.

But this is not quite the full story. There is in fact a strong current of
principle running through the public’s perception of the rule of law. This
came across most strongly when we tested people’s opinions of ouster
clauses.

While of course few had any idea what an ouster clause was at first,
once explained the reaction was largely one of horror at the idea of
certain areas of law being removed from the jurisdiction of the courts.

What this tells me is that underpinning this rules based approach to the
law is a fundamental principle – the principle of fair play.

While most of the time the public is happy to get on with respecting the
rules of the game whatever they may be, there is a very visceral reaction
to anything which seems to represent a tilting of these rules in favour of
one person or group of people.

5. Principles and rules

So, does principle have a place in the rule of law, or is it all just about
respecting the rules of the game?

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On the one hand, the rules based approach that the public seems to
endorse is attractive; it fits in neatly with our assumptions about the
purpose of the judicial function in this country and how it fits in with the
legislative and executive functions.

However, Britain has a long and storied tradition of employing legal

principles to defend key constitutional tenets and personal liberties – a
tradition that seems to be endorsed by the public’s desire to see fair play
maintained.

It is important that judges are able to refer to principles, whether of the

rule of law, of access to justice, or of core British liberties. Without them,
our system would be prone to accidental injustice, in which our law
produces outcomes that are fundamentally out of step with the shared
assumptions and values that underpin it.

The way our justice system employs legal principles is very different
from, say, the kind of lofty constitutional musings you might find on the
US Supreme Court. Rather than having to derive arguments of principle
from a single body of higher law – namely the US Constitution – the
principles that are employed in the legal system of England and Wales
are embedded in the common law.

Indeed, it allows our system to function without a body of higher law, and
to respond appropriately to cases that involve fundamental rights and
liberties on which Parliament has not yet provided a definitive statement
of the law in the form of statute. This is what Dicey meant by his third
principle of the rule of law, and our legal system is all the stronger for it.

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Nonetheless, it is cases that turn on questions of principle that attract the
most controversy. An obvious recent example is the case of UNISON v
Lord Chancellor, the 2017 case that saw the order introducing fees for
the Employment Tribunal quashed by the Supreme Court.

This case saw the court decide that the fees violated the principle of
access to justice, which the court held to be integral to the rule of law, by
effectively blocking access to the Tribunal to those without the means to
pay the fees.

The Government claimed both at the time and since that this is a
question of policy, not of law, and as such not a decision in which the
court should be intruding. But while setting fees is indeed a power that
falls within the remit of the Government, the court must act whenever a
Government decision threatens a principle as vital and as fundamental
as the right of every British citizen to seek justice in the courts.

This was no legal invention – the right of access to justice is firmly

embedded in our legal history. Go all the way back to 1297, when
Magna Carta was put on the statute books, and this is clear: “We will sell
to no man, we will not deny or defer to any man either Justice or Right”,
as Article 29 proudly proclaims.

And that clause is another example of how the use of principle to

reinterpret legislation helps ensure that our law keeps up with our
constitutional ideals. Because on a plain reading of the language of
Article 29, it is clear that some people – women – are clearly excluded
from the protection it provides.

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But English law has evolved over the years to interpret references to
“man” or “men” in our law as including women and will evolve further to
ensure no one is excluded based on their gender.

By any measure this is a fundamental rewriting of one of the

foundational statutes of our law; but by employing principle in this way
our law is able to avoid the accidental injustice that would have arisen,
and which would have required an unenviable amount of effort from our
Parliament to rectify in statute.

6. Parliamentary sovereignty

Does this use of principle to reinterpret statute offend against that

keystone of the British constitution, the supremacy of the Crown in
Parliament?

I do not believe it does. Because the principles that are being appealed
to are not simply particular moral or political preferences, on the validity
of which perfectly reasonable people might legitimately disagree; the
principles that are invoked in these kinds of cases – such as the rule of
law, the right of access to justice and equality before the law – are
principles that are axiomatic to our constitution.

Since these principles are so firmly embedded into our political and legal
systems, as well as the public consciousness, there is understandably a
very strong presumption in the legal system that Parliament at all times
intends to respect these principles. It would take very strong and
unambiguous statutory language to convince a court that Parliament has

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ever decisively elected to reject our historic tradition of rights and
liberties and disapply principles as fundamental as these.

However, it is of course true that a court judgment involving a novel

interpretation of a statute could lead to an outcome which Parliament
had not intended.

That this might occur is not a result of an attempt by judges to seize

political authority from the elected Parliament, but simply because in
hard cases it is not always clear how legislation ought to be interpreted,
or what Parliament’s intentions were in passing the legislation in
question.

Furthermore, another perfectly plausible scenario is one where

Parliament’s intentions in passing a statute are clear, but proper legal
scrutiny of the statute in question reveals that it may not in fact give
proper effect to those intentions in a particular case, or even in general.

Again, the discrepancy between Parliament’s intention and the legal

outcome is not a consequence of some political machinations on the
part of the judiciary, but in this case a result of unclear or defective
drafting. It may be, for example, that the legislation was drafted with a
particular scenario in mind, but another unforeseen scenario has
emerged which changes the legal facts and therefore the effect the
legislation has.

But while the legal process of analysing and interpreting statute may on
occasion lead to an outcome which is at odds with the intentions of
Parliament, it is important to note that our legal system never creates

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political impasses in the way that, for example, the US system on
occasion does.

The UK judiciary is not some alternative bastion of authority which can

block the wishes of the legislature. There is always a path that can be
taken by Parliament or the Government to ensure that its agenda is put
into effect in a lawful way.

In particular, even if a court interprets a statute in a way that Parliament

disapproves of, it always remains open to Parliament to change the law
and correct this discrepancy between intention and interpretation.

Where the discrepancy has arisen as a result of ambiguity in the

language of the statute, or as a result of the effect of unforeseen
circumstances, such a correction would be relatively routine for
Parliament to make.

Parliament could even choose, if it wished, to legislate to remove from

individuals what had been considered a fundamental right – for example,
the right to a fair trial. The court would have to be thoroughly convinced
that the statute does indeed convey this intention and give effect to it,
but in theory if the statute is sufficiently tightly drafted a domestic court
would be bound to enforce it.

Thus in this country statutory interpretation poses no permanent threat

to the supremacy of Parliament. Parliament might on occasion feel its
will has been thwarted by a particular judgment, but this can always be
overcome.

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In this country we have no higher law that a court can use to effectively
veto a legislative proposal. Parliament remains supreme.

7. The soft limits of Parliament’s supremacy

This discussion about the supremacy of Parliament gives rise to another

interesting question.

If Parliament is indeed sovereign, as we have established, and its clear

and unambiguous will as expressed in statute cannot be impugned, is it
possible to criticise legislation that has been properly passed into law for
being contrary to the rule of law?

Well if we take the view that the public seems to espouse, that the rule
of law means nothing more or less than respecting the rules of the
game, then the answer to this question is no. Parliament makes the
rules, and under the rule of law we are duty bound to follow them.

But as I mentioned earlier, under the surface the public’s view is in fact
more nuanced than this. When asked whether it is right that Parliament
can oust the jurisdiction of the courts in certain areas, the members of
the public we spoke to found this suggestion horrifying.

This horror at the idea of ouster clauses suggests that in the public’s
mind there are indeed very real limits on how a sovereign parliament
should use its supremacy – a sort of unwritten rule if you will that lies
under the surface of the written rules of the law.

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I think my view on the particular subject of ouster clauses reflects the
view expressed in Lord Faulks’ Independent Review of Administrative
Law, which considered this subject (amongst many others) in detail:
“[T]he doctrine of Parliamentary sovereignty means that Parliament has
the power to legislate in such way as to limit or exclude judicial review.
The wisdom of taking such a course and the risk in doing so are different
matters. Indeed… there should be highly cogent reasons for taking such
an exceptional course.”

Clearly, it is possible to criticise legislation for failing to respect the spirit

of the rule of law while holding that Parliament has the right to legislate
in any way it sees fit.

The Law Society, as the representative voice for the solicitor profession,
has a duty to speak out when legislation threatens the ideals that are
core to the rule of law.

8. Judicial review reform

In this vein, the Law Society has been vocal in outlining its opposition to
proposed reforms to judicial review which would serve to undermine the
important function it plays in holding public authorities to account – a
central tenet of the rule of law.

Our main concern with the Judicial Review and Courts Bill that is
currently before Parliament is the provision creating a statutory
presumption that would direct courts in most cases to use new, untested
remedies that might provide a less complete remedy than an ordinary
quashing order.

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This presumption encroaches on judges’ traditional discretion over the
awarding of remedies. This discretion is important to ensure that
claimants who successfully challenge unlawful actions are able to
receive an effective remedy for the harm they have suffered.

The ultimate effect of the presumption would be to disadvantage

claimants, while allowing the state to minimise the extent to which it will
need to rectify its own mistakes.

It is important that judicial review retains its teeth, as it is the primary way
by which ordinary citizens can hold public authorities to account for
actions that breach the law.

While those public authorities might complain that the scope of judicial
review has expanded in recent years, the reality is that the scope of
judicial review has expanded in response to an expansion in the scope
of public authority.

Wherever the state extends its tentacles, the law must follow – this is
essential to our system of checks and balances which ensures that
those with power do not exceed their authority or the bounds of the law.

9. The Human Rights Act

Another area of contention is the Human Rights Act. The Government

has recently published proposals for reforming the Act and replacing it
with a Bill of Rights.

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A consultation is currently underway, and there will be plenty of
opportunity for lively debate in the months ahead on the merits and
demerits of particular reform proposals.

But it is important from the outset to be clear on what the Human Rights
Act is, and what it isn’t.

What the Act is, is a practical means of ensuring individuals can assert
their rights at home in a UK court, thereby limiting the UK’s liabilities to
the European Court of Human Rights and reducing the number of cases
that are taken to Strasbourg for resolution.

While it is a statute of great constitutional significance, the Act was not a

project to create something akin to a body of higher law in the American
or Continental legal traditions. Rather, it’s aim was to guarantee access
to domestic courts for domestic litigants on human rights issues.

By careful design the Act does not restrict the supremacy of Parliament,
as it does not allow for the striking down of primary legislation.

Nor has it created new legal obligations on the UK. The obligations the
UK has as a signatory to the European Convention on Human Rights
are obligations we have held since our accession to the Convention in
1953. The Human Rights Act’s only effect was to give the Convention
direct effect in UK law.

It is also important to recognise that it is perfectly compatible with

parliamentary supremacy for the UK to be bound to international treaty
obligations it has freely entered into. And indeed, Lord Bingham’s eighth

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principle of the rule of law makes clear that respecting our international
law obligations is just as essential to the rule of law as respecting
domestic law.

Ultimately, the European Convention on Human Rights is an

international instrument. It is not just about the UK and protecting rights
here; it’s about fostering consensus and ensuring countries across
Europe afford the same respect to fundamental rights that are essential
to a stable and law-based society. The participation and support of all
signatory countries, including the UK, gives it its strength.

10. Criticisms of legal professionals

While most threats to the rule of the law might come in the form of
legislative proposals, just as pernicious is the effect of attacks on the
motives and reputations of those professionals whose job it is to see that
justice is done.

The Government is quite right to say that litigation should not be used as
a continuation of politics by other means. Political considerations are not
and should not be relevant to determinations of law.

But by the same token, politicians should not castigate judges for finding
that the law does not fit with their political objectives, or conflate lawyers’
actions on behalf of their clients with support for the political views and
motivations of those clients.

Denigrating lawyers for doing their job undermines confidence in their

essential constitutional role, and risks dragging them into the political

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arena. Reasonable disagreement on the merits of a particular decision is
unobjectionable, but we must take care to ensure that this does not spill
over into heated criticism and personal attacks.

On the other hand, the courts have no obligation to show undue

deference to the Government, because it is Parliament that is sovereign,
not the executive. The Government must respect this distinction, for in
the eyes of the court the executive is no different to any other claimant
or defendant – all are subject to the law, and it is the court’s duty to
adjudicate matters of law without fear or favour.

11. Conclusion

At the outset of my speech I posed the question of whether our

constitution sets up an inherent tension between the political framework
and the legal one.

Notwithstanding the former Lord Chancellor’s concerns that the two

frameworks are being drawn into conflict by nefarious actors, I hope I
have shown today that the two can and have coexisted constructively –
and that the conflict between them shows the system is working well.

Indeed, while there can be tension, in many respects our unique legal
system acts alongside our political system, to avoids the deep pitfalls
and harsh standoffs that afflict other equally sophisticated legal systems
across the world and to ensure a political and legal society which
functions effectively.

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At the centre of this is a conception of the rule of law that is reflected in
the public’s attitude to the law; a conception that is a hybrid between a
rules-based approach and a principled-based one.

The British people’s focus on respecting the rules of the game ensures
an appropriate balance of political and legal authority: our sovereign
Parliament makes the law, and the judiciary sees to it that it is applied
equally to all.

Yet underneath this rules based approach is a clear seam of principle,

which can be best summarised as a collective, instinctive, British belief
in fair play.

This appreciation of principle is embedded in our common law, and

allows our law to adapt and evolve over time to ensure that the essential
liberties that British citizens have come to enjoy and expect over
hundreds of years remain central in the legal system.

The application of key principles in the law is no challenge to

parliamentary supremacy; instead it works alongside it, ensuring that the
UK need have no recourse to higher law and written constitutions to
protect those values we hold to be fundamental.

From Magna Carta, to the Bill of Rights, to the Human Rights Act, our
legal and political systems have worked together to protect and promote
the rule of law in this country. It is an inheritance we should be proud of.
We should do all we can to preserve this delicate balance for posterity.

Thank you.

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