Today I'm gonna talk about the Constitution and ask the question in effect, has politics triumphed over the law and constitutional propriety? And in order to see whether or not that has happened, it's necessary to look not just at the legal and constitutional end, but also the role that the politicians play. So I assume that that is what Peter Olson, the Treasurer of Grazing, had in mind when he asked me. So I'm very, very honored to be here and able to talk. I didn't know when I was going to talk. As I've said that a general election was going to be in place and had I known that a general election was taking place, I would've accepted even more enthusiastically, uh, than uh, did accept. Uh, the, the two things that I think are very, very substantially in play in relation to the general election is the willingness of governments to stick with the law. And the other thing is the incredibly dangerous position that the justice system is in. And it's not just the criminal justice system, though that is in a terrible position, but it is also the family justice system and the civil justice system. However, I didn't know that it was gonna be a general election, so I'm not gonna talk about the terrible state of the justice system, but I'm gonna stick with what I was gonna talk about all along, which is the question of law and constitutionality. Uh, in delivering this lecture, I make it clear I'm not speaking on behalf of the Labor Party, though I should make it clear that I've been a member of the Labor Party all my adult life. I really hope that labor win this election as big as possible. Uh, and I have a particular interest in the result in the general election 'cause my own son is standing to be a labor MP in Lincoln. So I make clear to you that I'm biased completely in relation to the politics of where we are, but I am not going to talk about politics. I'm going to talk about constitutional arrangements. I address this evening the constitutional arrangements for holding government to the law and the Constitution. And the question is, is the executive becoming ever less restrained by the law and the constitution at a time when a government is becoming ever less trusted? My answer to that question and I'll set out the reasons, is yes, the executive is becoming ever less accountable to the law and much more willing and able to act unconstitutionally than previously. What we do about it, I think will depend on whether the last decade and more was an aberration rather than a trend. But my own view is that political expediency is in the ascendancy and in a world of an unwritten constitution with protection only for black letter law, politics is currently trumping principle. A government has political constitutional and legal accountability. Its political accountability at its summit depends on the principle. A government can only stay in power for as long as it enjoys the confidence of the House of Commons. That accountability is part of the Constitution. It is only enforceable politically. The removal of Boris Johnson and Liz trusts in quick succession suggests that aspect of the Constitution continues to work well. Two, the two examples of Johnson and Trusts. We should however, add the example of Theresa May. She lost her flagship policy, the reason that she was Prime Minister. Her deal negotiated with the EU for Brexit by first of all over 200 votes in the House of Commons, and then by over 150 votes before the speaker ruled that she could not try again because the House of Commons had already ruled on that issue even though it was beyond argument in the face of those unprecedented rebuffs that she did not enjoy the confidence of the commons she stayed on as prime minister with the active collusion of her party. This is in marked distinction to Mr. Neville Chamberlain, who resigned in May, 1940 after winning a vote on the adjournment of the House of Commons, which was treated as a vote of confidence, but he won the vote. Mr. Chamberlain resigned because the size of the Tory rebellion made it clear to him that even though he enjoyed a majority, he had in effect lost the house's confidence. That was a clear example of what, uh, professor Peter Hennessy described as the good chaps form of government. The good chaps form of government has definitely gone as far as that principle of retaining the confidence of the House of Commons is concerned. But whether there has been in practice a change in the approach to the issue of whether the Prime Minister and its government enjoy the confidence of the commons is not the subject of this lecture. If there has been a loss of confidence, it is only something that politics can deal with. There is no place for the law or the courts in this aspect of accountability. And if you, if you, if, if the position is that the government continues in power despite having lost the confidence of the commons, then it's for the electorate to decide subsequently whether that is something that they approve of. May eventually was forced out by Johnson and then Johnson won a massive election ultimately because I suspect the public did not want the continuing chaos of what had happened when somebody was the prime minister but didn't have the confidence of the comments. But it's a, it's a political issue, not a a legal issue, but there is more to the Constitution than the question of whether the government continues to enjoy the confidence of the commons. Recent experience, as I will deal with later suggests that traditional constitutional norms, in particular the separation of powers between the courts on the one hand and the executive and the legislature on the other and the balance of power between the executive and the legislature are now no longer being applied in full. In this lecture when I talk of holding the government to the law and the constitution, I'm using the phrase to denote the executive complying with black letter law and also complying with clear constitutional conventions which may or may not be enforceable by the courts but are unquestionably parts of the Constitution being able effectively to hold a government to the law and the Constitution has I believe four elements. First, an independent judiciary and a properly resourced court system willing and able to find against the government when the law dictates second access to justice for potential challenges to executive action. Third, commitment within government to act in accordance with the law and the constitution and effective means to enforce that commitment and finally ensuring the continuation of legal and constitutional structures which apply appropriate limits to executive action. As to the court's role in ensuring compliance with the law, I have absolutely no doubt about the robust independence of our judiciary judiciary. Until very recently, judges have not as a group been in play politically over ma most of the last 50 years they had not been seen either as too right wing or too left wing. They genuinely have transcended political type casting with the possible exception of the Irish terrorist cases that has to some extent changed the enemies of the people headline un repudiated by the government for days and indeed supported by one minister at the time at a senior minister. And the attacks on lefty lawyers by ministers carries with it the notion that judges and lawyers are part of an elite standing in the way of liberating the country. From an over woke over European, over metropolitan overrun with immigrants country, it is important not to exaggerate the extent to which the judges are in political play. In this way they have shown immense good sense in hardly responding to the attacks and they retain very widespread public confidence, much more confidence than the politicians do, but the next few years may be rocky. The maintenance of constitutional democracy depends on the main political parties continuing to support and have confidence in the judiciary. Otherwise holding a future government to the law and the constitution becomes much harder. I have no anxiety whatsoever that any incoming labor government will undermine the standing of the judiciary. A former DPP would not do that, but the growth of the far right has carried with it attacks and the non-acceptance of institutions on which the maintenance of our democracy depends and the growth of the far right infects the center right? It was not just the farages who attacked lawyers for doing their job, it was politicians holding the highest positions in the state. The consequence of putting the judges in play in this way is that judges inevitably become careful to pick their battles with the executive and that ultimately weakens the independence of the judiciary. Not because they are cowed but because they have an eye to politics. Politicians from the mainstream play with fire if they undermine our judges, undermine them and you undermine the proper functioning of a constitutional democracy. After he lost the Prorogation case, prime Minister Johnson supported by his then Attorney General Jeffrey Cox suggested the Supreme Court decision was quote, political and in consequence the process for appointing judges should become more political. He had and has the support of Professor Ekins, the distinguished professor of constitutional law at the University of Oxford. He Boris Johnson and Jeffrey Cox argue that and I quote the Lord, chancellor be allowed to exercise a real discretion in making senior judicial appointments selecting from a short list of well qualified candidates. The system now works well in terms of quality and independence. There have been criticisms of the length of time the process can take and that ministers do not have a sufficient interest in the outcome and that progress on diversity has been insufficient. The first and the last of these critiques have some validity, but I am profoundly against giving ministers more say it was I believe profoundly fortunate that after the loss of the Prorogation case by the government, it was not open to the Lord Chancellor to interview a short list of judicial candidates for chief justice and select the one who would be most in favor of deference to the state. An appointment system which promotes judicial independence is vital. The current system does that and should be left well alone. A final point on protecting the independence of judges. They should, if possible, have a strong defender in government who should be able to speak up for them in private and in public. That is the role that the Lord Chancellor should play and has statutory power to pay. Sometimes Lord chancellors do it well and sometimes they don't. I believe that that role for the Lord Chancellor would be immeasurably, immeasurably strengthened if the ministerial code spelt out their role in defending the judges prescribed that ministers must desist or withdraw any criticism if asked to do so by the Lord chancellors and that the rules of collective responsibility do not apply to the Lord. Chancellor when discharging this role, I do not think the holder of the office needs to be a lawyer. They need to be somebody strong-minded enough to know when to stand out against colleagues attacks on judges character and stature, not profession are I believe the key I focused so far on the independence of the judges as a vital component of holding the state to the law. The importance of this requirement should not overshadow two further aspects I referred to earlier in the first two of my list of four conditions. First, there has to be a sufficiently resourced justice system and second, those who wish to challenge the state should be able to access the justice system. It would never occur to us not to properly fund elections. It's vital to democracy but just as vital to a constitutional democracy is the rule of law and that means courts sufficiently resourced to ensure there is not undue delays in hearing cases and legal aid arrangements which allow those who have a challenge to the state with legal merit to pursue that challenge. Without the rule of law, there is no sustained democracy. If there is not the rule of law, the winner in an election can stay in power forever. There is a price to pay to protect our constitution, which is not just the cost of ballot boxes, it is also the cost of a properly resourced justice system and proper proper access for all to that system. Let me move to the third of my four conditions for constitutional arrangements which hold the government to the law. That is a commitment within government to act in accordance with the law and the constitution and effective means to enforce that commitment. Without doubt, the most important means of holding a government to the law is the justice system, but much of what goes on in government never gets to the courts either because the public never hear of it or because no one challenges it. And in our system, sovereignty resides in parliament which mostly the executive controls primary legislation can be used by government to get round the rule of law and constitutional norms. As a nation, we undoubtedly have a deep and long commitment to the rule of law. We promote it around the world. It is the foundation both of our freedoms and our prosperity. It is the source source of huge amounts of earnings through expenditure on UK lawyers. In 2022, the UK legal services sector generated revenue of 42.7 billion. Much of it coming from international clients choosing to resolve disputes and make agreements in accordance with English law. For such a commitment to be convincing and reliable, it must be steadfast. Investors in the UK and the citizens of the UK alike need to know that the the commitment applies come what may and does not give way to the political demands of the government of the day. Within government, ministers and civil servants alike are bound by the civil, the ministerial code and the civil service code respectively, which requires them to comply with the law including international law. The government has well regulated rules for ensuring that all that it does complies with the law. To the extent there are disagreements about the law within government, they're resolved by the opinion of the law officers. Their views are authoritative both on the law and the constitution. This legal ecostructure has been significantly undermined in recent years. The internal markets Act expressly allowed the government to break the terms of the EU UK Irish protocol even though such a breach would inevitably involve a breach of international law. The advocate general Lord keen of Ely, a distinguished Scottish lawyer resigned in the face of this abandonment of law. The safety of Rwanda Asylum and Immigration Act passed in the dying days of this recent parliament. It was a clear breach of the constitutional principle of the separation of power between the courts on the one hand and the executive and the legislature on the other. As is well known, the Supreme Court had concluded Rwanda was not a safe country to return immigrants within the meaning of the immigration rules. These rules that to these rules provide that to qualify as a safe country the principle of non fulfillment must be respected. The principle of non fulfillment requires that the refugee should not be returned to a place in which he may face persecution. The immigration rules permit the courts to determine whether a country is safe in accordance with the rules as a primary issue of fact, not simply on the basis of a wesbury challenge to a finding of a minister or an immigration officer. The Supreme Court found unanimously there was, and I quote a culture within Rwanda of at best inadequate understanding of Rwanda's obligations under the refugee convention and they went on and said it is also apparent from the evidence that significant changes need to be made to Rwanda's asylum procedures as they operate in practice before there can be any confidence that it will deal with asylum seekers sent to it by the United Kingdom in accordance with the principle of non fulfillment. The necessary changes may not be straightforward as they require an appreciation that the current approach is inadequate and a change of attitudes and effective training and monitoring is required. So the the view of the Supreme Court without a diet was it was a fundamentally flawed system that required major surgery. The government on the 5th of December, 2023, which was 19 days after the Supreme Court handed down their judgment entered into a further agreement with the government of rda, which they asserted put all of the problems identified by the Supreme Court right on the 7th of December, 2020 3, 22 days after the judgment was handed down, the government introduced into the commons the bill which prescribed despite the findings made by the Supreme Court that it and I quote the bill now an act it gives effect to the judgment of parliament that the Republic of Rwanda is a safe country. It is hard to imagine a more obvious breach of the separation of powers because you are asking as the government and getting parliament to state they as a court will decide on an issue of fact. It's perfectly okay for parliament to change the law in the face of a legal ruling by a court. The parliament can say we don't like the law so we'll change the law. But what you cannot do, it seems to me, is let Parliament start making decisions of fact. The obvious thing that you would start to do is to say, although my very good friend X, who is a member of parliament has been convicted of a criminal offense, I know X to be a very decent chap. So we're passing an act of parliament that declares that X is a innocent fellow even though the courts have found him guilty. The Rwanda law then provided that every decision maker must conclusively treat the Republic of Rwanda as a safe country and it further provided that the courts must not consider a review or appeal against a repeal against the decision either of the minister or of an immigration officer on the basis. Rwanda is not a safe country, it passed without significant amendment in the form introduced there was one amendment but it's not material to this argument. The court's effectively usurped, usurped and then legislatively barred from putting it right. The law as far as the English courts, sorry, the UK courts are concerned absolutely clo clear. The courts of the United Kingdom are unquestionably under our constitution and I don't challenge this. They are bound to give effect to the act. Yet the act is plainly unconstitutional because it breaches the separation of powers. Courts not parliament decide the factual question of whether a country is safe passing the act was plainly designed to circumvent court control of the executive. There is no remedy which the courts can give for its unconstitutionality. It is for parliament to decide whether to pass it in the commons. The government have a majority and they whipped it through in the Lords. Whilst we in the Lords are willing to amend bills to make the government think again as we did with the Rwanda bill, if the Commons think again and make no changes, then in the context not not just of a bill what was in a winning party's manifesto, but any bill which is central to the program of the government, then the Lords will not hold out and we didn't hold out, we held out three times and then we let the bill through this act and the internal market act demonstrate a government or a state where politics can trump the Constitution and there is no institution in our state court or second chamber which has the task of holding the government which controls the commons to the constitution. Would it have been different if the reforms of 2005 had not taken place? Most people accept the need for an independent judicial appointments commission and for a fully functioning ministry of justice and for a secretary of state who does not spend the great bulk of his day inert on the W sac and also the impossibility of a senior cabinet minister, also being the chair of the final Court of Appeal and the head of the English judiciary. But they hank for a big legal figure such as the Lord, chancellors of Old who would separately from the Attorney General stand up for the rule of law within government. And if that great figure said no and then he surely would've said no or she would've said no to the safety of Rwanda act that would've ended the matter. I fear not Lord kill Muir the Lord Chancellor was summoned by the prime Minister

15 AM on Friday the 13th of July, 1963, an inauspicious day with no prior warning.

00 PM that evening. He bravely went on with his diary for the day it being a Friday. It only included one further official engagement, namely a cocktail party at the Land Registry<laugh> Houston who chronicles the lives of the Lord. Chancellor's writes it that is the cocktail party at the Land Registry was not an occasion remembered with pleasure by anyone who was there. It is said upon being told at 1115 that he was to be fired kill more kill. Muir complained that he was being given less notice than he would've had to give his cook to which the Prime Minister is said to have replied that cooks were much harder to come by than Lord chancellors <laugh>. Whether this exchange occurred, it illustrates how the whole structure depends on appointments by the prime minister. A cabinet minister should not be the head either of the judiciary of England nor the head of the Final Court of Appeal. It's fundamentally wrong and it was from those two positions that the Lord Chancellor derived his a special authority in government. There is no going back, nor should there be that the Lord Chancellor being the head of the judiciary and the head of the Court of appeal, the final court of appeal. That was the classic failure to separate the judges from the executive and the legislature. There is a figure in government the Attorney General and if he or she thought it was unconstitutional or legal or illegal, he or she should have said that. And if he or she was overridden, then he or she would've had to resign and then they would've had to find another law officer which would've gravely undermined the commitment to the rule of law. There may in the future need to be more solid structural protections to protect the constitution. For example, either the courts having wider powers to strike down or not apply parts of legislation which are unconstitutional or a second chamber with wider powers to block unconstitutional legislation. I support neither of these proposals in this lecture. They would require much further thought. Rather I seek to draw attention to the increasing gulf between that which is lawful and that which is unconstitutional. And we really need to look at that issue. The final condition to hold the government to the law and the Constitution is ensuring legal structures which AP apply appropriate limits to executive action. Increasingly, the executive promotes primary legislation giving huge power to ministers and other bodies which would previously have required either primary or secondary legislation. The four methods of circumventing proper parliamentary SLU scrutiny and in many cases any scope for legal challenge were identified in a seminal joint report by two select committees of the House of Lords published in November, 2021, headed the Democratic deficit. The day job of those two committees is to draw the House of Lord's attention to anything unusual in delegated powers. The government is proposing by secondary legislation the committees which are made up of people from the each political party, the cross parties, the cross benches and no party became so concerned with what they saw as a fundamental undermining of the role of parliament in favor of the accretion of executive power over a prolonged period of time that they published this report, which reflects very much the view of the Lords. They describe the four methods used to shift the balance away from the legislature to the executive first skeleton legislation where little of the policy is included on the face of the bill, but instead left to delegated legislation which Parliament cannot amend but can only accept or reject with rejection being a very rare occurrence and fraught with difficulty. Second, Henry VIII powers where ministers can buy a a form of second legislation that they promote, repeal or amend an a primary act of parliament. Thirdly, legislative sub delegation of powers where ministers confer powers on themselves or other bar or other bodies. And these powers may include the ability to amend prime legislation. This tertiary legislation has as much legal force as any other form of law. And then finally, what the committee's described as disguised legislation. Perhaps the most striking and disturbing recent development where ministers give themselves the power in prime legislation to exercise legislative powers using various devices such as guidance determinations. Protocols which is said will specifically have legal effect but require no parliamentary scrutiny whatsoever. The wider the power given by primary legislation because there is less material in primary legislation to define how it should be exercised, the greater the reduction in parliamentary scrutiny, but also the harder to identify any legal basis of challenge using these technique techniques is positively recommended in what is described as the cabinet office guidance to legislation, a manual for government departments and parliamentary draftsmen as to how to legislate The Joint Committee's report recommended in November, 2021 as follows. We therefore recommend significant amendments to the cabinet office. Its guide to making legislation the Bible, which officials must follow, including an explicit assertion of the fundamental principles of parliamentary democracy as the basis for the way in which bills are framed. Legislation which offends in one or other of the four ways the two Lords Committees identified is unconstitutional for all of the reasons that they set out. It is a further example where legislation sets out the law. The courts have to follow that legislation without doubt, but the legislation is unconstitutional and there is nothing that either the courts or the second chamber can do about it. In this lecture, I've sought to identify what I believe to be a gradual but significant weakening of the constitutional and legal restraints on what the executive does. The main driver of this is the increasing intensity for political advantage. The ability of the state to hold the executive to the law and to the constitution is what prevents elective dictatorship. We must hope that the things I have identified have been the product of a period of aberration and the triumph of politics over everything else is not the picture of the future. Thank you very much indeed.