Unlocking the rule of law

It gives me the greatest pleasure to speak to you today at the opening of this 60th anniversary conference of the Law Society of Scotland, and to share the platform with Lord Cullen and my honourable colleague, the Lord Advocate, who is of course the first female Lord Advocate. As the first female Attorney it is only proper that I should also be named Scotland. So for me it truly is like coming home, the great great granddaughter of a Scot from Kinross. I know that the work of the Law Society of Scotland represents the very best traditions of the Scottish legal community, and I congratulate you on your 60th anniversary. Long may you flourish.

I have been asked to make some brief remarks about that most nebulous of subjects – the “rule of law”, and, on slightly more defined ground, to give an account of the role of the Attorney General.

In my office (a mostly rather mundane and functional building, I must confess!) the staircase is lined with portraits of the Attorneys and Solicitors, from William de Bonneville in 1277 onwards. When I pass the portraits I’m often moved to ask myself how things looked when they were running the show. What were the issues they grappled with? Who were they up against? Which of their powers did they most prize and privilege? If I could turn to them and ask them how they saw the role, what would they say to me?

Because of the way the Office has developed over the years, it is true that the roles it involves can seem to sit oddly together. Indeed, because of this I was asked to undertake a review of the role of the Attorney General by the Prime Minister, and the Government’s position has been clearly stated in the White Paper on Constitutional Renewal in March 2008.

While I was thinking about what makes the role, it became clear to me that the cluster of functions I now undertake has gathered around the Attorney because those functions are all in some real, urgent way, about the rule of law. Its protection, its preservation and its promotion.

And I think the fact that the Attorney performs them acts to give them back a certain shape and colour.

In everything the Attorney does, she is obliged to act in service of the rule of law. I and my predecessors swore an oath “to duly and truly minister the Queen’s matters and sue… after the course of the law”. An explicit reference to the rule of law may in time be added, and that would be a very fine thing. But it would be a restatement of obligations which are already there.

In the opening speech at a conference of lawyers, a conference taking the rule of law as a central theme, it is worth taking a few minutes to ask what is this “rule of law” we so often talk about?

In the narrow sense, it is those ideas expressed by Dicey. The idea that the exercise of power needs to be authorised in particular and consistent ways. It must not be arbitrary. That’s a powerful idea, but any student of jurisprudence will know it’s essentially a procedural demand. A demand for a Rule of Recognition, as the theorists call it. It says little about the substance of the law – it just says there’s got to be a law.

So there’s more to it than that. Access to the law and to justice should not be impeded. In the ancient words of the Magna Carta, “to no-one will we deny or delay right or justice”. And, in the words of my oath, “without long delay, tracting or tarrying the party of his lawful process”.

But there’s more still. The rule of law means striking a fair balance between individual and public interest. This is the language of the European Convention, of course, and the Human Rights Act. But it’s pervasive – the protection of private rights and the protection of community rights, and how to accommodate them.

And it means the proper observance of constitutional boundaries between judge, parliamentarian and minister. And between UK and devolved Government.

So I think there are four important principles. They are:

• Rule of recognition.
• Access to the law.
• Striking a fair balance.
• Constitutional boundaries.

And I also want us to think about the rule of law as being the right to ask of an authority the question “Why are you doing what you are doing?”, and to get a proper answer.

We have always separated power between different bodies, the executive, the legislature, the judiciary. I firmly believe these bodies exist in a type of “creative tension” with each other. They will not always agree. Very often they will not. It is not always comfortable for Parliament, the Government and the judges to work together. The press will not always support the Government. NGOs will intervene. People will protest. They will all want their say. They may be right. And they may be wrong. But they have the right to ask the question “Why?”, and get a proper answer. If we are to continue living in a democratic society, living in a United Kingdom where people see themselves as free and at peace, we need it, far more than we necessarily appreciate when we are used to taking it for granted.

Primo Levi, the Italian chemist and writer who survived Auschwitz, told a chilling story, of the time when he asked one of the camp guards the question “Why?” He just blurted it out because it was the one thing he needed to know. The guard pushed him aside and said simply, “There’s no ‘why’ here.”

So yes. The rule of law is the right to ask the question “Why?”, and the right to receive a proper answer.

The Attorney’s roles – my roles – are all about promoting and protecting these principles. So you will hopefully forgive me for being a bit grand and telling you how I see myself as Attorney doing that, by mentioning and discussing just some of the roles I perform, as an activist for the rule of law.

II Role in Government

It’s important to mention at the outset my ministerial role in relation to the Crown Prosecution Service and the Director of Public Prosecutions for Northern Ireland, and other prosecuting authorities. The role is one of superintendence and the provision of accountability for the work of those bodies.

As Attorney General I am also a member of the Government I advise. This is no longer “just so”. It must be debated, pondered and justified. For my part, I have long considered that my position in Government does not weaken my role protecting the rule of law. My work as legal adviser to the Government strengthens it in the following ways.

As to the rule of recognition, it is my role to test and challenge the practical effectiveness and necessity of legislation. The Attorney supports the parliamentary counsel.

Access to the law. The Attorney demands propriety and transparency in lawmaking, and guards the right of individuals to go to court to seek redress.

Fair balance. The Attorney demands that law and policy are fair and compatible with the Convention rights.

Constitutional boundaries. The Attorney considers questions of devolved competence, EC issues, the proper allocation of power.

Being in Government, the Attorney is able to advise and counsel with sympathy and creativity. To be entirely objective. To speak frankly and freely. To decline when declining is called for. Protecting the rule of law is to promote the interests of the Government, and it is to protect the public interest. We are not called to see these as irreconcilable. This is why I have recommended that I remain a Minister, and why the Lord Advocate too occupies such an important position.

III Diversity and access to justice

In speaking about the Attorney’s different roles I inevitably speak about myself. But of course it’s not just me who does this work. Nor just the lawyers who work in my office. As Attorney, I am the minister with responsibility for the Government Legal Service and for the panels of counsel who work for the Government. It is vital that we who work for Government imbue it with these principles. Rule of recognition. Access to the law. Fair balance. Constitutional boundaries.

Many rules are made nowadays which are never challenged in the courts. In many cases Government lawyers are the rule of law. It will be they who test, challenge and if necessary correct flaws which would otherwise inaccurately express policy, in a way which is inconsistent with these principles. As lawyers we all understand that context can be of critical importance, and thus emotional and cultural intelligence can be as important as academic acumen.

And that leads me to make a crucial point. How can we do any of this if we in the GLS are not as diverse as the country whose laws we make, debate and assess? For me it is one of my core functions as Attorney – and one which is absolutely grounded in the rule of law – to encourage diversity in the GLS and in the legal profession, because an important part of doing right by those we stand for is that we should ourselves reflect the diversity of the communities we seek to serve.

And for me that function stretches out beyond the GLS. If we are to promote access to the law we must not stop at the gate. I could not stand here and say, not without risk of hypocrisy, that “to no-one will we deny or delay justice”, unless I encourage others, those with legal expertise, to help those who need help. As many of you will know, I believe that pro bono is part of every good lawyer’s DNA. Sadly there is no database at the moment. But I’m sure that if there was, all the good lawyers in this room would be on it.

We have done great work on a Pro Bono Toolkit. The aspiration is that, with shared best practices from other Commonwealth countries, it will help provide guidance or a blueprint for how best to undertake pro bono work. We are deeply involved in using pro bono to encourage access to the law.

No-one now suggests that pro bono could or should ever be viewed as a substitute for legal aid, but it is an additional resource which can be invaluable in delivering justice to those who would otherwise have little access to it.

In those old words of my oath, to “speed such matters as any person shall have to do in the Law”. I know you share our passionate belief in pro bono. (It is of significance that in the first year that Scottish law students were able to compete in the Attorney’s pro bono awards, Strathclyde University won the “best contribution by a law school” award – which was presented by Lord Hope, their chancellor.) I want today to offer you our help in your development of the culture of pro bono advice in Scotland. This is just the beginning.

It is this idea of access to justice. It’s the same principle which informs my work protecting the courts and the public from vexatious litigants, protecting charitable interests and consenting to various prosecutions.

And it’s the same principle which gives the Attorney a role in encouraging young people to join the profession. We must endue young people with a belief in the law’s importance. In the hope of their contribution to it. That they might nurture the profession into what it needs to be in the future if the rule of law is to be protected in times to come. If not, our endeavour will surely fail. To this end I have held the first working meeting of a Youth Network, designed to coordinate initiatives aimed at encouraging understanding of and respect for the rule of law, de-mystifying the legal profession and building pathways into it. It will help children understand they will one day own the law, and they should feel empowered by this.

We will be working hard on this and will have more to say and progress to report before the end of the summer.

Access to justice motivates me and Vera, the Solicitor General, as the first all-woman team, in an absolute and unwavering commitment to the right of women to justice. Especially in areas with a history of women being let down by systems which do not support them well enough. We share a commitment to working to secure more rape convictions, to get better treatment for rape victims. And I chair the Corporate Alliance Against Domestic Violence, which aims to raise awareness of and take action to reduce the social and economic impact of domestic violence in the workplace, by bringing together employers and agencies offering help to victims, both women and men. I would be delighted to help in any way I can in taking similar work forward in Scotland.

IV The challenge of devolution

Standing in Edinburgh, it is right that I should say a few words about devolution, that great and still fairly recent change to our constitutional order, and about the role of the Law Officers. Devolution put in place whole new legislatures and governments, new locations of power and responsibility. And it imposed a kind of self-denying ordinance on the UK Parliament, which it has not yet had cause to lift. And devolution gives us the puzzle so familiar in Canada, in the USA. Familiar in many places. That is the puzzle of powers at state level and at national level. And how to co-operate. How to decide who can do what, what goes into which box. If it’s even ever as simple as that.

And for those in power in the various parts of the UK there are new rule of law challenges. Because if we are to function effectively as a Union, we need to be frank about where we differ, but also work together. The concordats, memorandums of understanding, and the important collaborative work of the refreshed Joint Ministerial Committee, these are the clothing which the devolution settlements wear. Because our shared interest in working collaboratively strengthens us in our fight against terrorists, enables our fishing industry to function and our energy supplies to be maintained.

And devolution also gives us particularly, me and Elish, and the Advocate General for Scotland, and the Counsel General for Wales, and – excitingly – the new proposed Attorney General for Northern Ireland, new rule of law challenges too. Because we all have the role of referring to the Privy Council – soon the Supreme Court – questions about the proper observance of those boundaries.

For me the role is very much alive, and speaking as a Law Officer, and standing alongside a fellow Law Officer, I say it is vital for the rule of law across the UK that those boundaries should be observed properly. The Law Officers have this role because we are all responsible for ensuring that those in power observe the rule of law.

V Joint purpose

So, to return to my central idea. The Attorney’s functions are varied and miscellaneous. But the fundamental coherent principle governing and directing them is the rule of law. Rule of recognition. Access to the law. Fair balance. Constitutional boundaries. And there is a kind of positive feedback at work here, for the fact that they are all performed by the Attorney, who is supremely concerned with the rule of law, is the thing which gives them a coherent shape and colour.

I said that the Law Officers across the various parts of the UK have a responsibility to work together, and that that loyal co-operation, if I may call it that, acts in itself to support the rule of law. Keeping people safe is a fundamental part of the rule of law, and it follows that delivering justice to those who would threaten our society is a necessity if we are to protect that society.

The Counter Terrorism Act 2008 has extended the idea of concurrent jurisdiction to terrorism offences. A UK-wide jurisdiction recognises that in terrorism cases with cross-border elements there may be real benefit to the public interest in trying co-conspirators together in a single court, wherever that court may be.

I take protecting the people of the UK through effective prosecutions of offences very seriously. Which is why I am very proud that today the Lord Advocate and I are announcing a joint statement of purpose on how to work together on prosecuting terrorism cases, where jurisdiction is shared by prosecuting authorities across the UK – and even further afield.

This arises from my ministerial role in relation to the Crown Prosecution Service and the Director of Public Prosecutions for Northern Ireland, and Elish’s criminal prosecution role as Lord Advocate.

The statement of purpose confirms the absolute centrality of a fair and objective basis for decisions on matters arising from concurrent jurisdiction, including those affecting the venue for any subsequent prosecution being taken on. Each case is to be considered impartially on its own facts and on the evidence, applying relevant law; and in the overall public interest.

Prosecutors will continue to give advice and conduct prosecutions impartially and independently, in line with their legal, professional and ethical duties and duties to the court. The statement sets out how we will work together in these cases to ensure that we maximise the chances of a successful investigation and prosecution.

I know I speak for both myself and Elish when I say that this joint statement is a bright example of that co-operation between us all. And of the insistence on uniform and proper justice in relation to terrorist offences, those most serious threats to our common wellbeing.

Thank you very much.