Interview: UK MP Sir Robert Buckland on His Concerns About the Rule of Law Features
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Interview: UK MP Sir Robert Buckland on His Concerns About the Rule of Law

Sir Robert Buckland KC MP, a prominent figure in the UK’s legal landscape, has dedicated his career to upholding the Rule of Law. His journey began as a barrister and door tenant at Foundry Chambers, where he demonstrated his commitment to justice. In May 2010, he embarked on a new chapter by entering Parliament. Since then, Sir Robert has played vital roles in various governmental positions — first as Solicitor General (2014-2019) and Minister of State for the Ministry of Justice in 2019, then as Lord Chancellor (2019-2021) and Secretary of State for Wales (2022) before returning to the back benches.

We spoke with Sir Robert on the Rule of Law, Ukraine, China’s role in the international rules-based order, UN Security Council reform, and his roles in government and as a barrister.

James Joseph: Here at JURIST, we report on the Rule of Law in crisis, both here in the UK and around the world. What is your take on where we stand currently, in terms of the Rule of Law internationally? 

Sir Robert: Well, first of all, I think we mustn’t beat ourselves up too much here, because I think the Rule of Law is actually in very good order [in the UK]. I don’t buy this narrative about it domestically being in crisis at all. There’s yesterday’s hearing on Rwanda, for example. We’ve got the government about to be challenged on the  COVID inquiry issue because they’ve made an application about disclosure. I think the Rule of Law in England and Wales in the jurisdictions of the British Isles is in very good order and I stand by this.

Am I worried about the challenge of the international rules-based order? You bet I am. I think the UK government has recognised that in its own strategic integrated security review, back in 2020, and now revised this year. We have got this tragedy [with respect to] the Rule of Law for the world at the moment and this runs contrary to how the Rule of Law was at the time after the fall of the Berlin Wall, where economic progress was equated with greater democracy and freedom and the Rule of Law. You’ve now got a situation where states like China are making economic progress but without that development in democracy, independence of the judiciary and the Rule of Law, and without accountability for their past demeanours, and that’s deeply worrying.

Ultimately, I still think that we should have the confidence to say that an economy in a society will not truly flourish as well as it could do without that independent judiciary and that legal system of integrity, because investors I think naturally, would be more … inclined to support and invest in countries with our independent judiciary because they’ve got investments that they want a redress of grievance on potentially. So, I think long term we should still be absolutely confident about the values and the systems that we adopt. But I can’t underestimate the scale of the challenge posed by countries like China, and of course the behaviour of Russia, at the moment underpinned by a kleptocratic regime currently waging a war of aggression in Ukraine. So we’ve got big challenges across the world and some of our international institutions don’t seem to able to cope.

James Joseph: On that point, the Foreign Secretary made a statement at Chatham House on reforming the United Nations Security Council, and it’s something which I personally believe needs to be done in order to dispel the power alignments which currently exist, and the bias which also exists with the UN Security Council, things like the veto the lack of the global south involvement, etc. What’s your view on this? [2]

Sir Robert: Totally agree with you and the Foreign Secretary. The five Permanent Members was set up just after the second world war, and at that time it reflected a global order that has now changed, inexorably. I think the threat or the use of the veto, really does stain the ability of the Security Council in particular. … There should be Security Council resolution after resolution on Ukraine. And yet, because of Russia’s position, we’ve not been able to do anything. … I think the foreign secretary is right when he talks of reform.

James Joseph: I want to look at your career from an international readership perspective. Could you explain for our global readers the role of the Lord Chancellor in your experience as you held this post, and also the role of the sorts of separation of powers which we have here in the UK between Parliament and the judiciary, under cabinet?

Sir Robert: Yeah, of course. Well, the Nord charter is one of the most ancient roads and the kingdom already predates the Norman Conquest. Historically, a chancellor was a senior judge, who also sat in the cabinet, and was the guardian of the Rule of Law as the judicial arm in the cabinet. Now … within government, the Lord Chancellor still has responsibility for the courts, and nowadays the Secretary of State for Justice, they also have responsibility for the prisons and probation service. That’s been since 2007. So the role, if you like, has been changed, and as some would say was, frankly, damaged by Labour’s Constitutional Reform Act of 2005. I certainly think it is enhanced when a lawyer of some standing is actually the holder of the office because they carry more authority with the judiciary.

Now as you know we do not have a separation of powers system in Britain, we have a checks and balances system, which means aspects of the Constitution that are clearly important and valued for their independence. So the judiciary, for example, is a key part of that sort of independence of the government, but underlying it all is this sort of system where the Lord Chancellor might be a member of the executive legislature, and he or she is there really to make sure that there’s a balance between the different different parts of the Constitution and therefore it’s one of the really good examples. Of the the quirkiness, if you like of the unwritten British constitution. I think it does distinguish itself from the US quite markedly because the idea of a figure like the chancellor in the US, also would be wholly alien. And yet, although  it just fit the need categories of separation of powers. I think that overall it were

James Joseph: I’ve covered for a while for JURIST that the criminal bar strikes here in the UK, and I know that that that’s a problem which is gone over to Ireland and into the EU, on fair pay and working conditions and on the legal aid rates. Do you have any comments on that? [3]

Sir Robert: Well, I think that the report in England or Wales the Bellamy report that I commissioned actually sowed the seeds of a much brighter future for the criminal bar and the 15% uplift in in fees. I think has been a very welcome initiative. I think it was unduly stalled by the previous Lord Chancellor, who managed to snatch defeat from the jaws of victory. Luckily, Brandon Lewis came in and did a deal with a bar which was sensible there are extra items relating to special prep and other work that is new in nature that need to be resolved between the government and the bar. But I think in many ways the position with regard to fees is in much better shape and it’s been for a long time. Although historically, the graduated free system did not keep pace with inflation on the cost of living. That’s resulted in a concomitant loss of talent to the criminal bar, which is extremely worrying and also has had an effect on the backlog in that there aren’t enough people to be able to do all the work that needs to be done in the crown thought so. So it’s been a bit of a self fulfilling prophecy in some ways. Now, I’ve got great faith in the new Lord Chancellor, Alex Chalk KC as a criminal barrister like me, he was my junior minister in the department, so I know him well. I think he instinctively gets it. Whilst  we are independent, we’re not when we’re in office. We’re not there to be shop stewards for the professions. We are there to make sure that the independence of the legal profession is maintained. And, I’m confident that Alex will do that. So, whilst there are still important points to be negotiated and under the amendments, the CBA are anxious to resolve some pressure points. I’ve got greater confidence than I had with this predecessor. Have the ability and willingness of the Lord Chancellor to act and to to reach and reach an agreement.

James Joseph: Final question, which is on Rwanda, the Rwanda obviously run the judgement yesterday, which was to to overturn the High Court on this matter what what’s your verdict, and where do you stand with that? [4]

Sir Robert: Well, I haven’t yet fully read the judgement, but I saw that it was a split decision with the Lord Chief Justice in a minority of one. And it seemed to me to boil down to just one issue: whether there was enough evidence to satisfy the [court that Rwanda] was a safe country, and that therefore sending refugees or asylum seekers there, we weren’t breaching Article Three and creating cruel or inhuman punishment or degrading treatment. … This shows how very finely balanced this case is, and therefore I’m fully expecting permission to be granted for an appeal to the Supreme Court. But ultimately, this does seem to boil down to whether the government of Rwanda have done enough to discharge the burden of satisfying compliance with Article Three courts. The court was looking at the position as of March last year when the new policy was announced, may well be that the government can work to move things on and to address some of the issues raised in that case. In order to basically anticipate some of the arguments. But ultimately, I think that it is notable that the court did not find it unlawful in principle, to send an asylum seeker to a third country, and therefore for those who are seeing some sort of terrible defeat for the government here. I think that actually as I suspected, this policy wasn’t wholly legally unsound. The question of practicality is the more interesting than some of the points of law that have now been dispatched by the Court of Appeal, with only one issue left under Article Three.

[1] There has long been an issue with the set-up of the Security Council and the Permanent five and the ice of the veto, which has faced called for its abolition in light of states on the P5 being accused of using the veto the play the United Nations Security Council, blocking any resolution or debate in which it sees its own interests being hindered, largely seen as a legacy of imperialism, Russia and China have enough used the veto to protect their interests and not the international community.

[2] There has long been a school of thought in International Relations around the need to dispel the power alignments that exist as a result of a small number of nations, selected nearly a century ago based on obsolete geopolitical realities, and the bias which ignored the global south, and has a narrow Eurocentric perspective of international justice. 

[3] Barristers in England and Wales have been striking after the government failed to meet their demand to raise legal aid fees following years of cuts to pay and working conditions. See my posts here, here and here for more details.

[4] The result of the Court of Appeal’s judgment is that the High Court’s decision that Rwanda was a safe third country is reversed and that unless and until the deficiencies in its asylum processes are corrected removal of asylum-seekers to Rwanda will be unlawful. See here.