{"version":"1.0.0","segments":[{"startTime":5.495,"endTime":14.324,"body":"Today I'm gonna talk about the Constitution and ask the question in effect, has politics"},{"startTime":14.324,"endTime":18.445,"body":"triumphed over the law and constitutional propriety?"},{"startTime":19.225,"endTime":26.57,"body":"And in order to see whether or not that has happened, it's necessary to look"},{"startTime":26.57,"endTime":33.915,"body":"not just at the legal and constitutional end, but also the role that the politicians"},{"startTime":33.915,"endTime":34.405,"body":"play."},{"startTime":35.065,"endTime":40.78,"body":"So I assume that that is what Peter Olson, the Treasurer of Grazing, had in"},{"startTime":40.78,"endTime":42.685,"body":"mind when he asked me."},{"startTime":42.865,"endTime":46.005,"body":"So I'm very, very honored to be here and able to talk."},{"startTime":46.645,"endTime":49.205,"body":"I didn't know when I was going to talk."},{"startTime":49.205,"endTime":56.576,"body":"As I've said that a general election was going to be in place and had"},{"startTime":56.576,"endTime":63.947,"body":"I known that a general election was taking place, I would've accepted even more enthusiastically,"},{"startTime":63.947,"endTime":66.405,"body":"uh, than uh, did accept."},{"startTime":66.865,"endTime":73.455,"body":"Uh, the, the two things that I think are very, very substantially in play in"},{"startTime":73.455,"endTime":80.045,"body":"relation to the general election is the willingness of governments to stick with the law."},{"startTime":80.705,"endTime":89.005,"body":"And the other thing is the incredibly dangerous position that the justice system is in."},{"startTime":89.425,"endTime":94.771,"body":"And it's not just the criminal justice system, though that is in a terrible position,"},{"startTime":94.771,"endTime":99.405,"body":"but it is also the family justice system and the civil justice system."},{"startTime":100.315,"endTime":104.583,"body":"However, I didn't know that it was gonna be a general election, so I'm not"},{"startTime":104.583,"endTime":108.851,"body":"gonna talk about the terrible state of the justice system, but I'm gonna stick with"},{"startTime":108.851,"endTime":113.12,"body":"what I was gonna talk about all along, which is the question of law and"},{"startTime":113.12,"endTime":113.405,"body":"constitutionality."},{"startTime":114.145,"endTime":120.85,"body":"Uh, in delivering this lecture, I make it clear I'm not speaking on behalf of"},{"startTime":120.85,"endTime":127.555,"body":"the Labor Party, though I should make it clear that I've been a member of"},{"startTime":127.555,"endTime":130.685,"body":"the Labor Party all my adult life."},{"startTime":131.525,"endTime":136.925,"body":"I really hope that labor win this election as big as possible."},{"startTime":137.585,"endTime":141.685,"body":"Uh, and I have a particular interest in the result in the general election 'cause"},{"startTime":141.685,"endTime":144.965,"body":"my own son is standing to be a labor MP in Lincoln."},{"startTime":145.105,"endTime":151.951,"body":"So I make clear to you that I'm biased completely in relation to the politics"},{"startTime":151.951,"endTime":157.885,"body":"of where we are, but I am not going to talk about politics."},{"startTime":158.305,"endTime":161.365,"body":"I'm going to talk about constitutional arrangements."},{"startTime":161.485,"endTime":168.535,"body":"I address this evening the constitutional arrangements for holding government to the law and the"},{"startTime":168.535,"endTime":169.005,"body":"Constitution."},{"startTime":169.425,"endTime":176.035,"body":"And the question is, is the executive becoming ever less restrained by the law and"},{"startTime":176.035,"endTime":181.765,"body":"the constitution at a time when a government is becoming ever less trusted?"},{"startTime":182.705,"endTime":188.537,"body":"My answer to that question and I'll set out the reasons, is yes, the executive"},{"startTime":188.537,"endTime":194.369,"body":"is becoming ever less accountable to the law and much more willing and able to"},{"startTime":194.369,"endTime":195.925,"body":"act unconstitutionally than previously."},{"startTime":196.795,"endTime":202.54,"body":"What we do about it, I think will depend on whether the last decade and"},{"startTime":202.54,"endTime":205.605,"body":"more was an aberration rather than a trend."},{"startTime":206.385,"endTime":214.231,"body":"But my own view is that political expediency is in the ascendancy and in a"},{"startTime":214.231,"endTime":222.078,"body":"world of an unwritten constitution with protection only for black letter law, politics is currently"},{"startTime":222.078,"endTime":223.125,"body":"trumping principle."},{"startTime":225.565,"endTime":230.445,"body":"A government has political constitutional and legal accountability."},{"startTime":231.025,"endTime":236.325,"body":"Its political accountability at its summit depends on the principle."},{"startTime":237.005,"endTime":242.105,"body":"A government can only stay in power for as long as it enjoys the confidence"},{"startTime":242.105,"endTime":243.805,"body":"of the House of Commons."},{"startTime":244.555,"endTime":247.365,"body":"That accountability is part of the Constitution."},{"startTime":247.785,"endTime":250.565,"body":"It is only enforceable politically."},{"startTime":251.425,"endTime":259.639,"body":"The removal of Boris Johnson and Liz trusts in quick succession suggests that aspect of"},{"startTime":259.639,"endTime":262.925,"body":"the Constitution continues to work well."},{"startTime":264.545,"endTime":268.485,"body":"Two, the two examples of Johnson and Trusts."},{"startTime":268.945,"endTime":273.445,"body":"We should however, add the example of Theresa May."},{"startTime":274.425,"endTime":280.485,"body":"She lost her flagship policy, the reason that she was Prime Minister."},{"startTime":281.505,"endTime":289.019,"body":"Her deal negotiated with the EU for Brexit by first of all over 200 votes"},{"startTime":289.019,"endTime":296.533,"body":"in the House of Commons, and then by over 150 votes before the speaker ruled"},{"startTime":296.533,"endTime":304.048,"body":"that she could not try again because the House of Commons had already ruled on"},{"startTime":304.048,"endTime":311.562,"body":"that issue even though it was beyond argument in the face of those unprecedented rebuffs"},{"startTime":311.562,"endTime":319.077,"body":"that she did not enjoy the confidence of the commons she stayed on as prime"},{"startTime":319.077,"endTime":323.085,"body":"minister with the active collusion of her party."},{"startTime":324.595,"endTime":327.325,"body":"This is in marked distinction to Mr."},{"startTime":327.325,"endTime":334.637,"body":"Neville Chamberlain, who resigned in May, 1940 after winning a vote on the adjournment of"},{"startTime":334.637,"endTime":341.95,"body":"the House of Commons, which was treated as a vote of confidence, but he won"},{"startTime":341.95,"endTime":342.925,"body":"the vote."},{"startTime":344.345,"endTime":344.565,"body":"Mr."},{"startTime":344.675,"endTime":352.004,"body":"Chamberlain resigned because the size of the Tory rebellion made it clear to him that"},{"startTime":352.004,"endTime":358.845,"body":"even though he enjoyed a majority, he had in effect lost the house's confidence."},{"startTime":359.515,"endTime":365.428,"body":"That was a clear example of what, uh, professor Peter Hennessy described as the good"},{"startTime":365.428,"endTime":367.005,"body":"chaps form of government."},{"startTime":367.545,"endTime":374.181,"body":"The good chaps form of government has definitely gone as far as that principle of"},{"startTime":374.181,"endTime":378.605,"body":"retaining the confidence of the House of Commons is concerned."},{"startTime":378.745,"endTime":383.986,"body":"But whether there has been in practice a change in the approach to the issue"},{"startTime":383.986,"endTime":389.228,"body":"of whether the Prime Minister and its government enjoy the confidence of the commons is"},{"startTime":389.228,"endTime":391.325,"body":"not the subject of this lecture."},{"startTime":391.865,"endTime":398.094,"body":"If there has been a loss of confidence, it is only something that politics can"},{"startTime":398.094,"endTime":398.925,"body":"deal with."},{"startTime":399.255,"endTime":404.965,"body":"There is no place for the law or the courts in this aspect of accountability."},{"startTime":405.225,"endTime":411.592,"body":"And if you, if you, if, if the position is that the government continues in"},{"startTime":411.592,"endTime":417.96,"body":"power despite having lost the confidence of the commons, then it's for the electorate to"},{"startTime":417.96,"endTime":422.205,"body":"decide subsequently whether that is something that they approve of."},{"startTime":423.585,"endTime":430.655,"body":"May eventually was forced out by Johnson and then Johnson won a massive election ultimately"},{"startTime":430.655,"endTime":437.725,"body":"because I suspect the public did not want the continuing chaos of what had happened"},{"startTime":437.725,"endTime":444.325,"body":"when somebody was the prime minister but didn't have the confidence of the comments."},{"startTime":444.665,"endTime":450.144,"body":"But it's a, it's a political issue, not a a legal issue, but there is"},{"startTime":450.144,"endTime":455.623,"body":"more to the Constitution than the question of whether the government continues to enjoy the"},{"startTime":455.623,"endTime":457.085,"body":"confidence of the commons."},{"startTime":457.705,"endTime":464.532,"body":"Recent experience, as I will deal with later suggests that traditional constitutional norms, in particular"},{"startTime":464.532,"endTime":471.36,"body":"the separation of powers between the courts on the one hand and the executive and"},{"startTime":471.36,"endTime":478.188,"body":"the legislature on the other and the balance of power between the executive and the"},{"startTime":478.188,"endTime":482.285,"body":"legislature are now no longer being applied in full."},{"startTime":482.865,"endTime":489.367,"body":"In this lecture when I talk of holding the government to the law and the"},{"startTime":489.367,"endTime":495.87,"body":"constitution, I'm using the phrase to denote the executive complying with black letter law and"},{"startTime":495.87,"endTime":502.373,"body":"also complying with clear constitutional conventions which may or may not be enforceable by the"},{"startTime":502.373,"endTime":508.876,"body":"courts but are unquestionably parts of the Constitution being able effectively to hold a government"},{"startTime":508.876,"endTime":513.645,"body":"to the law and the Constitution has I believe four elements."},{"startTime":514.054,"endTime":521.643,"body":"First, an independent judiciary and a properly resourced court system willing and able to find"},{"startTime":521.643,"endTime":529.233,"body":"against the government when the law dictates second access to justice for potential challenges to"},{"startTime":529.233,"endTime":530.245,"body":"executive action."},{"startTime":531.295,"endTime":539.217,"body":"Third, commitment within government to act in accordance with the law and the constitution and"},{"startTime":539.217,"endTime":547.139,"body":"effective means to enforce that commitment and finally ensuring the continuation of legal and constitutional"},{"startTime":547.139,"endTime":551.365,"body":"structures which apply appropriate limits to executive action."},{"startTime":553.465,"endTime":559.927,"body":"As to the court's role in ensuring compliance with the law, I have absolutely no"},{"startTime":559.927,"endTime":563.805,"body":"doubt about the robust independence of our judiciary judiciary."},{"startTime":565.335,"endTime":572.05,"body":"Until very recently, judges have not as a group been in play politically over ma"},{"startTime":572.05,"endTime":578.766,"body":"most of the last 50 years they had not been seen either as too right"},{"startTime":578.766,"endTime":581.005,"body":"wing or too left wing."},{"startTime":581.635,"endTime":589.875,"body":"They genuinely have transcended political type casting with the possible exception of the Irish terrorist"},{"startTime":589.875,"endTime":598.116,"body":"cases that has to some extent changed the enemies of the people headline un repudiated"},{"startTime":598.116,"endTime":606.356,"body":"by the government for days and indeed supported by one minister at the time at"},{"startTime":606.356,"endTime":608.005,"body":"a senior minister."},{"startTime":608.785,"endTime":615.995,"body":"And the attacks on lefty lawyers by ministers carries with it the notion that judges"},{"startTime":615.995,"endTime":623.205,"body":"and lawyers are part of an elite standing in the way of liberating the country."},{"startTime":623.275,"endTime":631.658,"body":"From an over woke over European, over metropolitan overrun with immigrants country, it is important"},{"startTime":631.658,"endTime":638.925,"body":"not to exaggerate the extent to which the judges are in political play."},{"startTime":639.345,"endTime":646.488,"body":"In this way they have shown immense good sense in hardly responding to the attacks"},{"startTime":646.488,"endTime":653.631,"body":"and they retain very widespread public confidence, much more confidence than the politicians do, but"},{"startTime":653.631,"endTime":656.965,"body":"the next few years may be rocky."},{"startTime":657.825,"endTime":665.94,"body":"The maintenance of constitutional democracy depends on the main political parties continuing to support and"},{"startTime":665.94,"endTime":668.645,"body":"have confidence in the judiciary."},{"startTime":669.275,"endTime":675.685,"body":"Otherwise holding a future government to the law and the constitution becomes much harder."},{"startTime":676.485,"endTime":682.837,"body":"I have no anxiety whatsoever that any incoming labor government will undermine the standing of"},{"startTime":682.837,"endTime":683.685,"body":"the judiciary."},{"startTime":684.125,"endTime":691.492,"body":"A former DPP would not do that, but the growth of the far right has"},{"startTime":691.492,"endTime":698.859,"body":"carried with it attacks and the non-acceptance of institutions on which the maintenance of our"},{"startTime":698.859,"endTime":705.245,"body":"democracy depends and the growth of the far right infects the center right?"},{"startTime":706.465,"endTime":713.26,"body":"It was not just the farages who attacked lawyers for doing their job, it was"},{"startTime":713.26,"endTime":716.885,"body":"politicians holding the highest positions in the state."},{"startTime":717.865,"endTime":724.728,"body":"The consequence of putting the judges in play in this way is that judges inevitably"},{"startTime":724.728,"endTime":731.592,"body":"become careful to pick their battles with the executive and that ultimately weakens the independence"},{"startTime":731.592,"endTime":732.965,"body":"of the judiciary."},{"startTime":733.505,"endTime":738.325,"body":"Not because they are cowed but because they have an eye to politics."},{"startTime":739.155,"endTime":746.686,"body":"Politicians from the mainstream play with fire if they undermine our judges, undermine them and"},{"startTime":746.686,"endTime":751.205,"body":"you undermine the proper functioning of a constitutional democracy."},{"startTime":753.525,"endTime":762.115,"body":"After he lost the Prorogation case, prime Minister Johnson supported by his then Attorney General"},{"startTime":762.115,"endTime":770.706,"body":"Jeffrey Cox suggested the Supreme Court decision was quote, political and in consequence the process"},{"startTime":770.706,"endTime":774.715,"body":"for appointing judges should become more political."},{"startTime":775.855,"endTime":782.2,"body":"He had and has the support of Professor Ekins, the distinguished professor of constitutional law"},{"startTime":782.2,"endTime":784.315,"body":"at the University of Oxford."},{"startTime":784.855,"endTime":792.063,"body":"He Boris Johnson and Jeffrey Cox argue that and I quote the Lord, chancellor be"},{"startTime":792.063,"endTime":799.272,"body":"allowed to exercise a real discretion in making senior judicial appointments selecting from a short"},{"startTime":799.272,"endTime":801.675,"body":"list of well qualified candidates."},{"startTime":802.695,"endTime":808.515,"body":"The system now works well in terms of quality and independence."},{"startTime":809.045,"endTime":814.276,"body":"There have been criticisms of the length of time the process can take and that"},{"startTime":814.276,"endTime":819.508,"body":"ministers do not have a sufficient interest in the outcome and that progress on diversity"},{"startTime":819.508,"endTime":820.555,"body":"has been insufficient."},{"startTime":821.335,"endTime":827.787,"body":"The first and the last of these critiques have some validity, but I am profoundly"},{"startTime":827.787,"endTime":834.239,"body":"against giving ministers more say it was I believe profoundly fortunate that after the loss"},{"startTime":834.239,"endTime":840.691,"body":"of the Prorogation case by the government, it was not open to the Lord Chancellor"},{"startTime":840.691,"endTime":847.143,"body":"to interview a short list of judicial candidates for chief justice and select the one"},{"startTime":847.143,"endTime":851.875,"body":"who would be most in favor of deference to the state."},{"startTime":853.015,"endTime":856.275,"body":"An appointment system which promotes judicial independence is vital."},{"startTime":856.975,"endTime":861.955,"body":"The current system does that and should be left well alone."},{"startTime":863.815,"endTime":866.255,"body":"A final point on protecting the independence of judges."},{"startTime":866.885,"endTime":871.891,"body":"They should, if possible, have a strong defender in government who should be able to"},{"startTime":871.891,"endTime":874.895,"body":"speak up for them in private and in public."},{"startTime":875.485,"endTime":880.781,"body":"That is the role that the Lord Chancellor should play and has statutory power to"},{"startTime":880.781,"endTime":881.135,"body":"pay."},{"startTime":881.685,"endTime":886.135,"body":"Sometimes Lord chancellors do it well and sometimes they don't."},{"startTime":887.175,"endTime":893.951,"body":"I believe that that role for the Lord Chancellor would be immeasurably, immeasurably strengthened if"},{"startTime":893.951,"endTime":900.727,"body":"the ministerial code spelt out their role in defending the judges prescribed that ministers must"},{"startTime":900.727,"endTime":907.503,"body":"desist or withdraw any criticism if asked to do so by the Lord chancellors and"},{"startTime":907.503,"endTime":912.925,"body":"that the rules of collective responsibility do not apply to the Lord."},{"startTime":912.925,"endTime":918.356,"body":"Chancellor when discharging this role, I do not think the holder of the office needs"},{"startTime":918.356,"endTime":919.805,"body":"to be a lawyer."},{"startTime":920.355,"endTime":926.958,"body":"They need to be somebody strong-minded enough to know when to stand out against colleagues"},{"startTime":926.958,"endTime":933.561,"body":"attacks on judges character and stature, not profession are I believe the key I focused"},{"startTime":933.561,"endTime":940.164,"body":"so far on the independence of the judges as a vital component of holding the"},{"startTime":940.164,"endTime":941.925,"body":"state to the law."},{"startTime":942.425,"endTime":948.533,"body":"The importance of this requirement should not overshadow two further aspects I referred to earlier"},{"startTime":948.533,"endTime":952.605,"body":"in the first two of my list of four conditions."},{"startTime":953.255,"endTime":959.382,"body":"First, there has to be a sufficiently resourced justice system and second, those who wish"},{"startTime":959.382,"endTime":964.285,"body":"to challenge the state should be able to access the justice system."},{"startTime":965.825,"endTime":971.205,"body":"It would never occur to us not to properly fund elections."},{"startTime":971.875,"endTime":978.466,"body":"It's vital to democracy but just as vital to a constitutional democracy is the rule"},{"startTime":978.466,"endTime":985.058,"body":"of law and that means courts sufficiently resourced to ensure there is not undue delays"},{"startTime":985.058,"endTime":991.649,"body":"in hearing cases and legal aid arrangements which allow those who have a challenge to"},{"startTime":991.649,"endTime":995.605,"body":"the state with legal merit to pursue that challenge."},{"startTime":997.235,"endTime":1001.565,"body":"Without the rule of law, there is no sustained democracy."},{"startTime":1002.145,"endTime":1006.228,"body":"If there is not the rule of law, the winner in an election can stay"},{"startTime":1006.228,"endTime":1007.045,"body":"in power forever."},{"startTime":1007.775,"endTime":1014.093,"body":"There is a price to pay to protect our constitution, which is not just the"},{"startTime":1014.093,"endTime":1020.412,"body":"cost of ballot boxes, it is also the cost of a properly resourced justice system"},{"startTime":1020.412,"endTime":1024.204,"body":"and proper proper access for all to that system."},{"startTime":1026.865,"endTime":1031.799,"body":"Let me move to the third of my four conditions for constitutional arrangements which hold"},{"startTime":1031.799,"endTime":1033.444,"body":"the government to the law."},{"startTime":1033.755,"endTime":1039.37,"body":"That is a commitment within government to act in accordance with the law and the"},{"startTime":1039.37,"endTime":1042.365,"body":"constitution and effective means to enforce that commitment."},{"startTime":1042.875,"endTime":1048.264,"body":"Without doubt, the most important means of holding a government to the law is the"},{"startTime":1048.264,"endTime":1053.654,"body":"justice system, but much of what goes on in government never gets to the courts"},{"startTime":1053.654,"endTime":1058.685,"body":"either because the public never hear of it or because no one challenges it."},{"startTime":1059.425,"endTime":1067.395,"body":"And in our system, sovereignty resides in parliament which mostly the executive controls primary legislation"},{"startTime":1067.395,"endTime":1075.365,"body":"can be used by government to get round the rule of law and constitutional norms."},{"startTime":1076.705,"endTime":1083.023,"body":"As a nation, we undoubtedly have a deep and long commitment to the rule of"},{"startTime":1083.023,"endTime":1083.445,"body":"law."},{"startTime":1083.905,"endTime":1085.605,"body":"We promote it around the world."},{"startTime":1086.025,"endTime":1089.285,"body":"It is the foundation both of our freedoms and our prosperity."},{"startTime":1090.025,"endTime":1096.205,"body":"It is the source source of huge amounts of earnings through expenditure on UK lawyers."},{"startTime":1096.865,"endTime":1105.045,"body":"In 2022, the UK legal services sector generated revenue of 42.7 billion."},{"startTime":1106.755,"endTime":1112.983,"body":"Much of it coming from international clients choosing to resolve disputes and make agreements in"},{"startTime":1112.983,"endTime":1114.645,"body":"accordance with English law."},{"startTime":1115.865,"endTime":1122.325,"body":"For such a commitment to be convincing and reliable, it must be steadfast."},{"startTime":1122.755,"endTime":1128.856,"body":"Investors in the UK and the citizens of the UK alike need to know that"},{"startTime":1128.856,"endTime":1134.957,"body":"the the commitment applies come what may and does not give way to the political"},{"startTime":1134.957,"endTime":1137.805,"body":"demands of the government of the day."},{"startTime":1139.325,"endTime":1145.99,"body":"Within government, ministers and civil servants alike are bound by the civil, the ministerial code"},{"startTime":1145.99,"endTime":1152.656,"body":"and the civil service code respectively, which requires them to comply with the law including"},{"startTime":1152.656,"endTime":1153.545,"body":"international law."},{"startTime":1154.325,"endTime":1161.436,"body":"The government has well regulated rules for ensuring that all that it does complies with"},{"startTime":1161.436,"endTime":1162.385,"body":"the law."},{"startTime":1162.965,"endTime":1169.19,"body":"To the extent there are disagreements about the law within government, they're resolved by the"},{"startTime":1169.19,"endTime":1171.265,"body":"opinion of the law officers."},{"startTime":1171.635,"endTime":1176.505,"body":"Their views are authoritative both on the law and the constitution."},{"startTime":1178.685,"endTime":1185.015,"body":"This legal ecostructure has been significantly undermined in recent years."},{"startTime":1185.875,"endTime":1193.994,"body":"The internal markets Act expressly allowed the government to break the terms of the EU"},{"startTime":1193.994,"endTime":1202.113,"body":"UK Irish protocol even though such a breach would inevitably involve a breach of international"},{"startTime":1202.113,"endTime":1202.655,"body":"law."},{"startTime":1203.115,"endTime":1210.03,"body":"The advocate general Lord keen of Ely, a distinguished Scottish lawyer resigned in the face"},{"startTime":1210.03,"endTime":1212.335,"body":"of this abandonment of law."},{"startTime":1213.755,"endTime":1221.502,"body":"The safety of Rwanda Asylum and Immigration Act passed in the dying days of this"},{"startTime":1221.502,"endTime":1222.535,"body":"recent parliament."},{"startTime":1223.435,"endTime":1229.385,"body":"It was a clear breach of the constitutional principle of the separation of power between"},{"startTime":1229.385,"endTime":1235.335,"body":"the courts on the one hand and the executive and the legislature on the other."},{"startTime":1236.795,"endTime":1244.241,"body":"As is well known, the Supreme Court had concluded Rwanda was not a safe country"},{"startTime":1244.241,"endTime":1249.205,"body":"to return immigrants within the meaning of the immigration rules."},{"startTime":1250.175,"endTime":1257.286,"body":"These rules that to these rules provide that to qualify as a safe country the"},{"startTime":1257.286,"endTime":1260.605,"body":"principle of non fulfillment must be respected."},{"startTime":1261.305,"endTime":1268.327,"body":"The principle of non fulfillment requires that the refugee should not be returned to a"},{"startTime":1268.327,"endTime":1271.605,"body":"place in which he may face persecution."},{"startTime":1272.745,"endTime":1278.821,"body":"The immigration rules permit the courts to determine whether a country is safe in accordance"},{"startTime":1278.821,"endTime":1284.898,"body":"with the rules as a primary issue of fact, not simply on the basis of"},{"startTime":1284.898,"endTime":1290.165,"body":"a wesbury challenge to a finding of a minister or an immigration officer."},{"startTime":1292.065,"endTime":1298.307,"body":"The Supreme Court found unanimously there was, and I quote a culture within Rwanda of"},{"startTime":1298.307,"endTime":1304.549,"body":"at best inadequate understanding of Rwanda's obligations under the refugee convention and they went on"},{"startTime":1304.549,"endTime":1310.791,"body":"and said it is also apparent from the evidence that significant changes need to be"},{"startTime":1310.791,"endTime":1317.033,"body":"made to Rwanda's asylum procedures as they operate in practice before there can be any"},{"startTime":1317.033,"endTime":1323.275,"body":"confidence that it will deal with asylum seekers sent to it by the United Kingdom"},{"startTime":1323.275,"endTime":1326.605,"body":"in accordance with the principle of non fulfillment."},{"startTime":1327.225,"endTime":1334.735,"body":"The necessary changes may not be straightforward as they require an appreciation that the current"},{"startTime":1334.735,"endTime":1342.245,"body":"approach is inadequate and a change of attitudes and effective training and monitoring is required."},{"startTime":1342.865,"endTime":1349.233,"body":"So the the view of the Supreme Court without a diet was it was a"},{"startTime":1349.233,"endTime":1352.205,"body":"fundamentally flawed system that required major surgery."},{"startTime":1353.545,"endTime":1361.278,"body":"The government on the 5th of December, 2023, which was 19 days after the Supreme"},{"startTime":1361.278,"endTime":1369.012,"body":"Court handed down their judgment entered into a further agreement with the government of rda,"},{"startTime":1369.012,"endTime":1376.745,"body":"which they asserted put all of the problems identified by the Supreme Court right on"},{"startTime":1376.745,"endTime":1384.479,"body":"the 7th of December, 2020 3, 22 days after the judgment was handed down, the"},{"startTime":1384.479,"endTime":1392.213,"body":"government introduced into the commons the bill which prescribed despite the findings made by the"},{"startTime":1392.213,"endTime":1399.946,"body":"Supreme Court that it and I quote the bill now an act it gives effect"},{"startTime":1399.946,"endTime":1407.165,"body":"to the judgment of parliament that the Republic of Rwanda is a safe country."},{"startTime":1408.265,"endTime":1413.981,"body":"It is hard to imagine a more obvious breach of the separation of powers because"},{"startTime":1413.981,"endTime":1419.697,"body":"you are asking as the government and getting parliament to state they as a court"},{"startTime":1419.697,"endTime":1422.365,"body":"will decide on an issue of fact."},{"startTime":1422.475,"endTime":1427.282,"body":"It's perfectly okay for parliament to change the law in the face of a legal"},{"startTime":1427.282,"endTime":1428.565,"body":"ruling by a court."},{"startTime":1429.185,"endTime":1432.885,"body":"The parliament can say we don't like the law so we'll change the law."},{"startTime":1433.065,"endTime":1440.732,"body":"But what you cannot do, it seems to me, is let Parliament start making decisions"},{"startTime":1440.732,"endTime":1441.755,"body":"of fact."},{"startTime":1441.935,"endTime":1446.562,"body":"The obvious thing that you would start to do is to say, although my very"},{"startTime":1446.562,"endTime":1451.19,"body":"good friend X, who is a member of parliament has been convicted of a criminal"},{"startTime":1451.19,"endTime":1454.275,"body":"offense, I know X to be a very decent chap."},{"startTime":1454.575,"endTime":1460.431,"body":"So we're passing an act of parliament that declares that X is a innocent fellow"},{"startTime":1460.431,"endTime":1463.555,"body":"even though the courts have found him guilty."},{"startTime":1464.975,"endTime":1471.165,"body":"The Rwanda law then provided that every decision maker must conclusively treat the Republic of"},{"startTime":1471.165,"endTime":1477.355,"body":"Rwanda as a safe country and it further provided that the courts must not consider"},{"startTime":1477.355,"endTime":1483.546,"body":"a review or appeal against a repeal against the decision either of the minister or"},{"startTime":1483.546,"endTime":1486.435,"body":"of an immigration officer on the basis."},{"startTime":1486.695,"endTime":1492.498,"body":"Rwanda is not a safe country, it passed without significant amendment in the form introduced"},{"startTime":1492.498,"endTime":1496.755,"body":"there was one amendment but it's not material to this argument."},{"startTime":1497.815,"endTime":1506.035,"body":"The court's effectively usurped, usurped and then legislatively barred from putting it right."},{"startTime":1506.655,"endTime":1512.919,"body":"The law as far as the English courts, sorry, the UK courts are concerned absolutely"},{"startTime":1512.919,"endTime":1513.755,"body":"clo clear."},{"startTime":1514.775,"endTime":1521.656,"body":"The courts of the United Kingdom are unquestionably under our constitution and I don't challenge"},{"startTime":1521.656,"endTime":1522.115,"body":"this."},{"startTime":1522.545,"endTime":1525.675,"body":"They are bound to give effect to the act."},{"startTime":1526.545,"endTime":1533.285,"body":"Yet the act is plainly unconstitutional because it breaches the separation of powers."},{"startTime":1534.265,"endTime":1541.776,"body":"Courts not parliament decide the factual question of whether a country is safe passing the"},{"startTime":1541.776,"endTime":1547.285,"body":"act was plainly designed to circumvent court control of the executive."},{"startTime":1548.855,"endTime":1553.725,"body":"There is no remedy which the courts can give for its unconstitutionality."},{"startTime":1554.305,"endTime":1559.085,"body":"It is for parliament to decide whether to pass it in the commons."},{"startTime":1559.385,"endTime":1564.805,"body":"The government have a majority and they whipped it through in the Lords."},{"startTime":1564.825,"endTime":1571.784,"body":"Whilst we in the Lords are willing to amend bills to make the government think"},{"startTime":1571.784,"endTime":1578.744,"body":"again as we did with the Rwanda bill, if the Commons think again and make"},{"startTime":1578.744,"endTime":1585.703,"body":"no changes, then in the context not not just of a bill what was in"},{"startTime":1585.703,"endTime":1592.663,"body":"a winning party's manifesto, but any bill which is central to the program of the"},{"startTime":1592.663,"endTime":1599.622,"body":"government, then the Lords will not hold out and we didn't hold out, we held"},{"startTime":1599.622,"endTime":1606.582,"body":"out three times and then we let the bill through this act and the internal"},{"startTime":1606.582,"endTime":1613.541,"body":"market act demonstrate a government or a state where politics can trump the Constitution and"},{"startTime":1613.541,"endTime":1620.501,"body":"there is no institution in our state court or second chamber which has the task"},{"startTime":1620.501,"endTime":1625.605,"body":"of holding the government which controls the commons to the constitution."},{"startTime":1627.385,"endTime":1632.295,"body":"Would it have been different if the reforms of 2005 had not taken place?"},{"startTime":1633.245,"endTime":1638.229,"body":"Most people accept the need for an independent judicial appointments commission and for a fully"},{"startTime":1638.229,"endTime":1643.213,"body":"functioning ministry of justice and for a secretary of state who does not spend the"},{"startTime":1643.213,"endTime":1648.197,"body":"great bulk of his day inert on the W sac and also the impossibility of"},{"startTime":1648.197,"endTime":1653.181,"body":"a senior cabinet minister, also being the chair of the final Court of Appeal and"},{"startTime":1653.181,"endTime":1655.175,"body":"the head of the English judiciary."},{"startTime":1655.995,"endTime":1662.275,"body":"But they hank for a big legal figure such as the Lord, chancellors of Old"},{"startTime":1662.275,"endTime":1668.556,"body":"who would separately from the Attorney General stand up for the rule of law within"},{"startTime":1668.556,"endTime":1668.975,"body":"government."},{"startTime":1669.315,"endTime":1674.805,"body":"And if that great figure said no and then he surely would've said no or"},{"startTime":1674.805,"endTime":1680.295,"body":"she would've said no to the safety of Rwanda act that would've ended the matter."},{"startTime":1681.575,"endTime":1689.975,"body":"I fear not Lord kill Muir the Lord Chancellor was summoned by the prime Minister"},{"speaker":"Mr. Harold McMillan at 11","startTime":1689.975,"endTime":1698.375,"body":"15 AM on Friday the 13th of July, 1963, an inauspicious"},{"speaker":"Mr. Harold McMillan at 11","startTime":1698.375,"endTime":1701.175,"body":"day with no prior warning."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1701.755,"endTime":1707.815,"body":"00 PM that evening."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1709.035,"endTime":1715.255,"body":"He bravely went on with his diary for the day it being a Friday."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1715.835,"endTime":1723.797,"body":"It only included one further official engagement, namely a cocktail party at the Land Registry"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1723.797,"endTime":1728.575,"body":"\u003claugh\u003e Houston who chronicles the lives of the Lord."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1728.575,"endTime":1735.275,"body":"Chancellor's writes it that is the cocktail party at the Land Registry was not an"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1735.275,"endTime":1739.295,"body":"occasion remembered with pleasure by anyone who was there."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1741.115,"endTime":1747.097,"body":"It is said upon being told at 1115 that he was to be fired kill"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1747.097,"endTime":1747.895,"body":"more kill."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1747.965,"endTime":1753.538,"body":"Muir complained that he was being given less notice than he would've had to give"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1753.538,"endTime":1759.111,"body":"his cook to which the Prime Minister is said to have replied that cooks were"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1759.111,"endTime":1762.455,"body":"much harder to come by than Lord chancellors \u003claugh\u003e."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1762.965,"endTime":1769.75,"body":"Whether this exchange occurred, it illustrates how the whole structure depends on appointments by the"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1769.75,"endTime":1770.655,"body":"prime minister."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1771.575,"endTime":1775.461,"body":"A cabinet minister should not be the head either of the judiciary of England nor"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1775.461,"endTime":1777.535,"body":"the head of the Final Court of Appeal."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1777.885,"endTime":1784.313,"body":"It's fundamentally wrong and it was from those two positions that the Lord Chancellor derived"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1784.313,"endTime":1786.885,"body":"his a special authority in government."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1787.055,"endTime":1791.55,"body":"There is no going back, nor should there be that the Lord Chancellor being the"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1791.55,"endTime":1796.045,"body":"head of the judiciary and the head of the Court of appeal, the final court"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1796.045,"endTime":1796.645,"body":"of appeal."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1796.995,"endTime":1801.845,"body":"That was the classic failure to separate the judges from the executive and the legislature."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1802.095,"endTime":1807.345,"body":"There is a figure in government the Attorney General and if he or she thought"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1807.345,"endTime":1812.245,"body":"it was unconstitutional or legal or illegal, he or she should have said that."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1812.625,"endTime":1817.383,"body":"And if he or she was overridden, then he or she would've had to resign"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1817.383,"endTime":1822.141,"body":"and then they would've had to find another law officer which would've gravely undermined the"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1822.141,"endTime":1824.045,"body":"commitment to the rule of law."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1825.055,"endTime":1831.195,"body":"There may in the future need to be more solid structural protections to protect the"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1831.195,"endTime":1831.605,"body":"constitution."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1832.065,"endTime":1840.919,"body":"For example, either the courts having wider powers to strike down or not apply parts"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1840.919,"endTime":1849.774,"body":"of legislation which are unconstitutional or a second chamber with wider powers to block unconstitutional"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1849.774,"endTime":1850.365,"body":"legislation."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1851.565,"endTime":1853.925,"body":"I support neither of these proposals in this lecture."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1854.355,"endTime":1857.285,"body":"They would require much further thought."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1857.825,"endTime":1865.16,"body":"Rather I seek to draw attention to the increasing gulf between that which is lawful"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1865.16,"endTime":1867.605,"body":"and that which is unconstitutional."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1868.025,"endTime":1870.245,"body":"And we really need to look at that issue."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1872.625,"endTime":1879.381,"body":"The final condition to hold the government to the law and the Constitution is ensuring"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1879.381,"endTime":1883.885,"body":"legal structures which AP apply appropriate limits to executive action."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1884.925,"endTime":1894.85,"body":"Increasingly, the executive promotes primary legislation giving huge power to ministers and other bodies which"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1894.85,"endTime":1900.805,"body":"would previously have required either primary or secondary legislation."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1902.145,"endTime":1909.852,"body":"The four methods of circumventing proper parliamentary SLU scrutiny and in many cases any scope"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1909.852,"endTime":1917.559,"body":"for legal challenge were identified in a seminal joint report by two select committees of"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1917.559,"endTime":1923.725,"body":"the House of Lords published in November, 2021, headed the Democratic deficit."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1924.705,"endTime":1931.433,"body":"The day job of those two committees is to draw the House of Lord's attention"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1931.433,"endTime":1934.125,"body":"to anything unusual in delegated powers."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1934.265,"endTime":1940.499,"body":"The government is proposing by secondary legislation the committees which are made up of people"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1940.499,"endTime":1946.733,"body":"from the each political party, the cross parties, the cross benches and no party became"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1946.733,"endTime":1952.967,"body":"so concerned with what they saw as a fundamental undermining of the role of parliament"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1952.967,"endTime":1959.201,"body":"in favor of the accretion of executive power over a prolonged period of time that"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1959.201,"endTime":1964.605,"body":"they published this report, which reflects very much the view of the Lords."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1965.235,"endTime":1972.127,"body":"They describe the four methods used to shift the balance away from the legislature to"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1972.127,"endTime":1979.02,"body":"the executive first skeleton legislation where little of the policy is included on the face"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1979.02,"endTime":1985.912,"body":"of the bill, but instead left to delegated legislation which Parliament cannot amend but can"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1985.912,"endTime":1992.805,"body":"only accept or reject with rejection being a very rare occurrence and fraught with difficulty."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":1993.705,"endTime":2003.108,"body":"Second, Henry VIII powers where ministers can buy a a form of second legislation that"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":2003.108,"endTime":2010.005,"body":"they promote, repeal or amend an a primary act of parliament."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":2010.835,"endTime":2019.61,"body":"Thirdly, legislative sub delegation of powers where ministers confer powers on themselves or other bar"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":2019.61,"endTime":2021.365,"body":"or other bodies."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":2021.945,"endTime":2026.285,"body":"And these powers may include the ability to amend prime legislation."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":2027.555,"endTime":2034.445,"body":"This tertiary legislation has as much legal force as any other form of law."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":2035.585,"endTime":2039.725,"body":"And then finally, what the committee's described as disguised legislation."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":2039.915,"endTime":2047.806,"body":"Perhaps the most striking and disturbing recent development where ministers give themselves the power in"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":2047.806,"endTime":2054.645,"body":"prime legislation to exercise legislative powers using various devices such as guidance determinations."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":2055.764,"endTime":2063.764,"body":"Protocols which is said will specifically have legal effect but require no parliamentary scrutiny whatsoever."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":2064.745,"endTime":2072.329,"body":"The wider the power given by primary legislation because there is less material in primary"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":2072.329,"endTime":2079.913,"body":"legislation to define how it should be exercised, the greater the reduction in parliamentary scrutiny,"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":2079.913,"endTime":2087.497,"body":"but also the harder to identify any legal basis of challenge using these technique techniques"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":2087.497,"endTime":2095.081,"body":"is positively recommended in what is described as the cabinet office guidance to legislation, a"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":2095.081,"endTime":2102.665,"body":"manual for government departments and parliamentary draftsmen as to how to legislate The Joint Committee's"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":2102.665,"endTime":2106.205,"body":"report recommended in November, 2021 as follows."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":2106.665,"endTime":2110.845,"body":"We therefore recommend significant amendments to the cabinet office."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":2110.865,"endTime":2117.546,"body":"Its guide to making legislation the Bible, which officials must follow, including an explicit assertion"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":2117.546,"endTime":2124.228,"body":"of the fundamental principles of parliamentary democracy as the basis for the way in which"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":2124.228,"endTime":2125.565,"body":"bills are framed."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":2127.835,"endTime":2135.551,"body":"Legislation which offends in one or other of the four ways the two Lords Committees"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":2135.551,"endTime":2141.725,"body":"identified is unconstitutional for all of the reasons that they set out."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":2143.195,"endTime":2148.775,"body":"It is a further example where legislation sets out the law."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":2149.475,"endTime":2156.545,"body":"The courts have to follow that legislation without doubt, but the legislation is unconstitutional and"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":2156.545,"endTime":2163.615,"body":"there is nothing that either the courts or the second chamber can do about it."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":2165.545,"endTime":2172.241,"body":"In this lecture, I've sought to identify what I believe to be a gradual but"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":2172.241,"endTime":2178.045,"body":"significant weakening of the constitutional and legal restraints on what the executive does."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":2178.905,"endTime":2185.965,"body":"The main driver of this is the increasing intensity for political advantage."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":2186.905,"endTime":2193.805,"body":"The ability of the state to hold the executive to the law and to the"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":2193.805,"endTime":2196.565,"body":"constitution is what prevents elective dictatorship."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":2197.895,"endTime":2204.885,"body":"We must hope that the things I have identified have been the product of a"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":2204.885,"endTime":2211.876,"body":"period of aberration and the triumph of politics over everything else is not the picture"},{"speaker":"He was told he was to be replaced with effect from 7","startTime":2211.876,"endTime":2213.275,"body":"of the future."},{"speaker":"He was told he was to be replaced with effect from 7","startTime":2214.005,"endTime":2215.115,"body":"Thank you very much indeed."}]}