For the same reason, I want to be circumspect about any statement I make about the current protest.  Like all right minded people, I deeply and sincerely hope that it will not end in blood shed and therefore commend the restrained response of the authorities. I will however have some statements more of general principle to make.

At this point let me make clear. As well as being a practising lawyer I continue as an active member of the Upper House of the British Parliament, the House of Lords, and sit on its Constitution Committee which is concerned with many of the issues I will discuss today. Everything I say today however is in a personal capacity.

Nonetheless, as the rule of law is now a matter of universal interest reflected in many local and international statements, I hope what I have to say is of value to those considering these issues. 

Further, I have indeed had to think hard about the rule of law especially during my time as Attorney General in the United Kingdom. I took office three months to the day before 9/11 and served thereafter through a turbulent and difficult period. It was an unprecedented and challenging time.

One of the issues that gave rise to was whether you could continue to observe the rule of law but still do what was necessary to combat a grievous threat from terrorism. I however became increasingly of the view that upholding the rule of law was not an obstacle to tackling terrorism but a key part of a successful strategy of tackling it. It enables us to show how our values are better than those of the terrorists for example because they are more just and more fair and more equal than the doctrine of hatred and extremism peddled by extremists and other hatemongers.

What is the rule of law? That is a more difficult question than it sounds.  

The expression the rule of law is generally attributed to Professor AV Dicey the Vinerian Professor of Law at Oxford University in his book An Introduction to the Study of the Law of the Constitution published in 1885.  He did not, however, invent the ideas lying behind it.  Nor even was he the first to use the expression as Lord Bingham Former Senior Law Lord of the United Kingdom (and former member of my own Barristers’ chambers in London) demonstrated in his highly influential book The Rule of Law published in 2010.

Though the expression is in wide and repeated use there is less agreement as to what it means. Dicey identified three meanings of the rule of law, the first two of which I would venture to suggest would remain universally accepted: that no man should be penalised save for a breach of an established law enacted under authority and tried before the ordinary courts of the land; and that the law applies to all including the government which like a private citizen can be held to account before the ordinary courts for breaches of the established law. Diceys’ third meaning of the rule was a peculiarly English one which contrasted the English common law approach to the upholding of rights with those of countries with a written constitution and is almost certainly now out of date.

Since then many have attempted their own definitions of the rule of law. Lord Bingham for example found 8 principles as opposed to Dicey’s three. Other commentators and judges have argued for different formulations and content.

The most lively debate is over the question whether the rule of law is concerned only with the formal aspects of the law: what is its source of authority; is it clear, accessible and predictable so that people can guide their conduct by it? Is it applied evenly so that differentiation is only by reference to objectively justifiable differences?  Is determination of breach by the ordinary courts of the land having  certain characteristics?  

Or whether the rule of law is also concerned with the content of the law; that the rule of law distinguishes between just laws and unjust laws; that there are certain principles and values which need to be reflected in the law or else.

The view of many distinguished common law jurists is that the rule of law is not only concerned with formal aspects but with the substance too. Lord Bingham was one of those. He argued the case by asking whether a state which savagely repressed or persecuted sections of its people could be regarded as observing the rule of law because the savage treatment and atrocities (for example, transportation to a Nazi concentration camp) were the subject of detailed laws duly examined and scrupulously observed.

In reaching that conclusion Bingham relied on a statement of the President of the Constitutional Court of the Russian Federation (VD Zorkin) at a symposium in 2007 when he declared:

“Law cannot be simply what is dictated by political authority or issued by the state.”

President Zorkin illustrated that point by reference to events both in Nazi Germany and in Stalin’s Soviet Union where, as he said 

“Both systems were killing millions of people, because for both the law was given and contained in the statutes.”

In other words he was saying that rule by law is not the same as rule of law.

Bingham therefore included amongst his eight principles, two in particular which dealt with the substance of the law. His seventh principle is that the law must afford adequate protection of human rights. His eighth is that the rule of law requires compliance by a state with its obligations in international law as well as its own domestic law.  

Today, there is much content in the principles of international law; in customary international law and in laws agreed to by States in bilateral and multilateral treaties and conventions and through binding decisions of the United Nations.   

I happen to share the view that rule of law does involve the substance of the law and not merely its procedures and formalities.

But for the purposes of what I want to say today the answer to that particular question is not critical. There are more fundamental issues to consider.

My thesis is that to thrive and prosper, Hong Kong needs not only the engines of economic prosperity. It also needs to observe the rule of law. And to be seen to be doing so.  

Economic prosperity and social cohesion go hand in hand with the rule of law. The rule of law creates conditions for economic growth in which people can have confidence – that enterprise will be rewarded and those rewards not arbitrarily removed. It also assists social cohesion by creating a society which is seen to be fair and just.

I am not therefore surprised to read that many Hong Kong citizens value the rule of law and place it highly amongst the values they prize most according to a recent poll.

Viewed from outside Hong Kong, it is a critical consideration for example for foreign investment and business partnership that Hong Kong should offer impartial application of the law and an effective and trustworthy dispute resolution system to solve civil disputes that the parties themselves cannot resolve without undue cost or delay. These are both elements of the rule of law.

Let me then identify what for me are the key attributes of the rules of law.

At its most basic level the rule of law requires that government is by laws and not by men, that is, that rule should not be arbitrary depending on the whim or will of individuals however prominent.  Rather there should be certainty and predictability in law so that citizens and others can guide their conduct. As Dicey explained – indeed this was his first meaning – people should not be penalised by the mere discretionary decision of a ruler but only in accordance with a clear and established law where breach has been determined by an independent tribunal. That is in reality a specific example of the need for laws to determine the boundaries of behaviour.

It is therefore essential that the law is accessible; it must be intelligible, clear and predictable.

There are formal requirements in the law; how they are enacted from a lawful authority; that they be accessible to all, be clear and predictable so that men and women may guide the conduct of their lives; that they be applied equally so that they should be applied alike to the same circumstances and accordingly only objectively justifiable differences should justify differentiation. These are all important considerations.

As I have said they are concerned however with the formal requirements of the law. But there is more in my view; the content of the law also engages issues of the rule of law. It is not, therefore, enough for a law to follow some formal concepts: clarity, generality of application, not retrospectively and so on. That is not the end of the inquiry whether the rule of law is being observed.

Further, the same essential principle means that questions of legal right and liability should ordinarily be resolved by the application of the law and not by the exercise of unfettered discretion.

But rule of law is more than that – important though it is that there be clear and accessible law.

For example, the rule of law also means very importantly that there be equality before the law. The law must apply equally to everyone.

An essential aspect of this universality of application is that the law must apply to the ruler or government as well as the ordinary citizen.

The rule of law requires that all must be subject to the law including the very highest in the land. And that includes enforceability of that law by the courts; there must be effective measures to enforce those rules even against public authorities and the government itself. This is the principle by which the executive authority and other public bodies can be brought to account for the way they exercise the powers that they are entrusted with.

Because the rule of law also imposes limits on the way that power is exercised. That authority, that is to say ministers and public officials at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably.

This is what is meant by the famous phrase first used by an 18th century churchman and historian, Dr Thomas Fuller: “Be you never so high, the law is above you.”

Law is not there just to regulate the behaviour of the citizen or of business. It is there also to control the exercise of power by public bodies.

That is of limited value however if the law in theory applies to public authorities but there is no means effectively to enforce the duties the law thus imposes.

The delivery of justice including judicial review of executive action forms therefore a key part of the rule of law.

It is critical in the determination of whether an individual has committed an offence for which he or she deserves to be punished.  It is critical too in the determination of civil rights and the resolution of civil disputes that the dispute is determined fairly and by reference to the evidence and not merely the whim of an adjudicator. So too where the issue is the accountability of public bodies.

The rule of law therefore requires that these issues be determined by a suitable judiciary

They should be administered by a competent and honest independent judiciary. What though does independence of the judiciary mean?

At a recent lecture here at the Foreign Correspondents Club, Lord Neuberger President of the UK Supreme court and one of Hong Kong's non-permanent judges in the court of Final Appeal had this to say about the state of independence of the judiciary in Hong Kong.

He underlined that independence for the judiciary means that the legislature and the executive should not be able either (i) to interfere with, or influence judicial decision making, or (ii) remove judges from office.

He also made the important point that Alexander Hamilton one of the founding fathers of the United States made when helping to frame the US Constitution that the judiciary is a branch of government but it is the weakest branch. And, therefore, special care needs to be taken to guard it against attacks.

I know this to be the case from my own experience. During my time in government in the United Kingdom from time to time ministers would find decisions of the courts irksome. They would want to express their feelings publicly and sometimes did. But public criticism of judges by ministers is dangerous. The judges can rarely answer back so the criticism stands uncorrected. This can lead to serious issues such as a loss of public confidence in the courts which may lead people to take action into their own hands.

I was very glad therefore to see Lord Neuberger reject suggestions that the independence of the judiciary in Hong Kong is in fact being undermined. He spoke, given his position as one of the judges of the Final Court of Appeal, with knowledge. He will have had the opportunity to witness and to hear from the other judges whether there are issues. His conclusion was clear: “If I felt” he said “that the independence of the judiciary was being undermined then I would either have to speak out or I would have to resign as a judge.”

I believe the world outside Hong Kong and Hong Kong itself can take much comfort from this. As it can take comfort from the fact that in the course of the actions concerning the Occupy Central demonstrations a young leader of the protests was freed from detention by a judge granting habeas corpus – the ancient common law remedy against arbitrary or unlawful detention – against the wishes of the police in a matter of hours from when the judge was seised of the matter.

Whatever other issues there may be about the circumstances of that detention and indeed its length, one can take heart about the independence of the Hong Kong judiciary that robust and decisive action was taken by a judge.

It is critically important to the future of Hong Kong as an international centre for dispute resolution – and also I would say – for its continued economic prosperity that people do not misunderstand the position about the independence of the judiciary in Hong Kong. This foundation launched today can help in that respect in two ways.

First by helping to promote the positive evidence of judicial independence, such as the incidents I have just referred to. They need to be understood abroad so people do not doubt that they can get a fair trial and a fair and competent resolution of their civil disputes in Hong Kong. All the evidence I have seen is that they can. 

In this respect it is also a great strength of the system of law in Hong Kong that the Final Court of Appeal contains overseas judges of distinction. For those who do not know the system the fact is that some of the most senior and distinguished judges especially from Australia and the UK serve on the court. This gives a strong reassurance that the most important disputes will come before fiercely independent judges for decision. This is not for a moment to suggest that the permanent local members of the Hong Kong judiciary are not equally independent and detached in their opinions and decisions as their overseas brothers. In terms of appearance, however, the presence of the overseas judges gives much reassurance that cases will be decided objectively and without any partisan element.

The Hong Kong judiciary is therefore a hugely important and impressive element of Hong Kong’s commitment to the rule of law. 

That will not necessarily mean that all the decisions of this court will be welcomed. Or that the court will not take account of the views of government if it is a party to the decision. Of course the court should listen to that.

And the fact of the interpretative role of the National People’s Congress under Article 158 of the Basic Law will still jar with some people. If the foundation takes on the role of showing that the rule of law is strong in Hong Kong it should also consider how to explain this unusual feature of judicial decision making.  

But secondly, it would help to sensitise others to the need not even to give the appearance of undermining that independence. As I have already noted the judiciary is the weakest arm of government. The rule of law and the independence of the judiciary are precious flowers. But like most flowers they are fragile and bruise easily. No-one should be surprised that the call in the recent PRC white paper for judges to be patriotic was understood by some as a call for the judges to determine their decisions by considerations of what was best for the country rather than by an objective scrutiny of the evidence and of the law. That would not be a correct understanding of what a judge’s role is; rather the judge should determine the case in front of him or her on the basis of a scrupulous and unpartisan examination of the law and the evidence.

Lord Neuberger in fact put forward his explanation of why judges could hold firm to that approach whilst still being patriotic, emphasising in that respect that deciding cases in accordance with those principles was precisely the patriotic duty expected of a judge.

That reconciliation notwithstanding, the episode shows the fears and the risks to the rule of law if the wrong idea is circulated. In addition therefore to pointing to the evidence of robust and independent judicial action and in recognition of how fragile and vulnerable is the flower of judicial independence, I hope that the foundation might counsel great care is taken in statements especially about the role of judges which could be taken as encouraging a departure from the strict judicial role of determining cases on a dispassionate non-partisan and scrupulous study of the evidence.

What of the observance of the law by others? Is requiring observance of the general law a part of the rule of law?

It is true that most analysis of the rule of law looks at the role of government and public authorities. This is not surprising. This is the area of most importance because the rule of law is a bulwark against arbitrary government rather than a method of enforcing obligations on the majority of the population. So, the list of elements of the rule of law will normally be considered from the stand point of the accountability of the state and public bodies.

What is more the fact that people break the law – which sadly in all countries is constantly happening – does not mean that such country is not subject to the rule of law.  If there are people in a country who rob or harm or murder you cannot say that such a country does not follow the rule of law.

What matters in those circumstances is how the law breaking is dealt with.

The rule of law requires that penalisation for breach of the law should be determined by tribunals acting objectively and fairly, applying their own dispassionate judgement to the case and not being dictated to by powerful interests. Inevitably that means that final decisions should only be taken after hearing from both sides – or sometimes all sides – of a dispute.  But once that has happened the law must be allowed to run its course and be respected. Respect for the law is not a one-way street. It is a two-way street and as the law applies to the state, so of course it applies to the citizen and those within the state. 

I am aware that some might interpret those remarks as directly applicable to the current state of injunctions granted in relation to the Occupy Central protest.

They should not be taken as any expression of any view on those matters. For me to do that would be wrong for several reasons: because the courts are about to rule and above all it is for the courts to make the decision, including whether orders once made should be confirmed or set aside and to weigh up the arguments. But once final judicial orders  are made, and unless the court grants a stay of the order, the decisions should be respected. A country based on law can allow nothing less.

Peter Henry Goldsmith, Baron Goldsmith, PC, QC is a British barrister and peer, and a former Attorney General for England and Wales and Northern Ireland.