In a report to the Security Council of the United Nations in August 2004 the UN Secretary General said that ‘the rule of law’ is a concept at the very heart of the UN's mission.Footnote ¹ In September 2015 the UN agreed a set of Sustainable Development Goals (STGs) for 2015–30, which came into force on 1 January 2016. Goal 16.3 of the SDGs enshrines a commitment by all UN members to ‘promote the rule of law at the national and international levels, and to ensure equal access to justice for all’.Footnote ² In March 2016 the Council of Europe's Commission for Democracy through Law, known as the Venice Commission, published a report which said that the rule of law is a concept of universal validity. It observed that in an increasing number of cases states refer to the rule of law in their national constitutions.Footnote ³ The rule of law is expressly mentioned in a United Kingdom statute: section 1 of the Constitutional Reform Act 2005 says that the Act does not adversely affect the existing constitutional principle of the rule of law.Footnote ⁴ The statute, however, does not contain any definition of the rule of law; nor does any other UK statute. There is no legally binding definition anywhere.

The setting of the UN SDG Goal 16.3 for 2015–30 to ‘promote the rule of law at the national and international levels’ underlines that the concept of the rule of law must be appropriate as an international standard, capable of applying to different countries with their various histories, cultures, constitutions and political arrangements.

Probably one of the best and most accessible modern analyses of the rule of law is to be found in the book The Rule of Law written by one of the greatest British judges since the Second World War, Lord Bingham.Footnote ⁵ He divided the core ingredients into eight as follows:

1. 1. The law must be accessible and, so far as possible, intelligible, clear and predictable.

2. 2. Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion.

3. 3. The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.

4. 4. Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly and reasonably, for the purposes for which the powers were conferred, without exceeding the limits of such powers.

5. 5. The law must afford adequate protection of fundamental human rights.

6. 6. Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve.

7. 7. Adjudicative procedures provided by the state should be fair.

8. 8. The state must comply with its obligations in international law.

Lord Bingham summarised the core principle as being that ‘all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts’.Footnote ⁶ For the purposes of this lecture, I wish to address the following broad areas inherent in the concept of the rule of law: (i) the types or qualities of the legal rules that govern our lives which are inherently desirable; (ii) the enforcement of those rules; (iii) the processes for holding government in check so as to prevent abuse or oppression of the public; (iv) the promotion and protection of fundamental human rights and dignity; and (v) how we measure a state's adherence to the rule of law.

As to the first of those areas, there are certain qualities that it is desirable that law or legal rules should have. Probably the best known description of those qualities is that of the late Professor Lon Fuller, who said that rules should have eight qualities – his so-called eight desiderata: they should be general, made known and available, prospective and not retroactive, clear and understandable, free from contradictions, should not require what is impossible, should not be too frequently changed, and in practice be complied with by official action.Footnote ⁷

The critical point here, which is both of a philosophical and a practical nature, is that laws which satisfy those conditions better enable citizens to arrange their lives within the legal limits imposed upon them. This is what some legal philosophers say is the inherent moral value of law itself – that is to say, it defines the scope within which citizens can act freely, in the sense of independence from the power of another (whether another person, or an institution, or indeed the government itself).Footnote ⁸ This is not just a philosophical point. It is expressed in the case law of the European Court of Human Rights as follows:Footnote ⁹

There is an important practical dilemma here. How can rules be made known, clear and understandable, so that citizens can plan their lives accordingly, if they are unwritten and are based on precedent known only to lawyers and judges, or are subject to the discretion of Ministers or administrators or judges, or if their application on any particular set of facts is dependent on the subjective views of judges or others? This was precisely the issue which motivated British philosophers of the eighteenth and nineteenth centuries, like Jeremy Bentham and John Stuart Mill, to argue for written codification of all our laws. In this they were inspired by the civilian Napoleonic code.Footnote ¹⁰ Today, for example, in Germany, France, Italy and the Netherlands, much of the law is to be found in compact, carefully drafted written codes.

That philosophical debate in Britain some 200 years ago, and the example set by the Napoleonic Code throughout much of Europe, ultimately led in 1965 to the establishment of the Law Commission of England and Wales and the Law Commission of Scotland.Footnote ¹¹ The rationale for the creation of those Law Commissions was explained in the Government White Paper, which preceded the Law Commissions Act 1965,Footnote ¹² and which said as follows:Footnote ¹³

It is worth saying something here about the huge success of the Law Commission of England and Wales as a model for law reform. It was, as I have said, set up in 1965 as an independent body. It is funded by government, and government, of course, decides whether to enact its recommendations, but it is independent in the sense that it has a senior judge as its chair, four other commissioners who are either distinguished practitioners, academics or members of the judiciary, and has its own chief executive. It cannot be compelled by the government to take on any particular project. It differs markedly from arrangements in other countries where law reform is carried out within the executive by civil servants. The disadvantage, I would suggest, of that model is that reform is not focused on those laws which affect the lives of many citizens unless they are vote winners for the government.

There is, by contrast, almost no aspect of life in England and Wales untouched by the Law Commission's work, which has even extended to level crossings across train tracks. A highly regarded, independent body, moreover, can call on the assistance of experts, whether legal or not, who can and will give advice and assistance without political influence or bias. The model of an independent Law Commission, based on that in England and Wales, has been replicated in many countries all over the world. Laws are of little use to citizens, even if they are clear, if they are unknown by the public and the means of enforcing them do not readily exist. Both of these points raise important issues about the constitutional responsibility of the state to enable people to find out what the law is and to provide facilities for its enforcement. That thought introduces the second of my five subject areas: the enforcement of rights. The scope and amount of state-funded legal aid are intensely political and controversial issues. It is not appropriate for me to comment on them directly. I can and will, however, make the following points.

The overwhelming majority of citizens cannot be expected to know all the law, even if it is reduced to a statutory code. The application of even straightforward principles to our everyday lives is often too complex in our increasingly sophisticated societies for citizens to understand. In order to make the rule of law a reality there must be means of communicating and explaining the law to citizens, whether in relation to particular disputes which have arisen or more generally.

Since the global financial crisis of 2007–08, governments in many countries have been in financial retrenchment. In the absence of adequate state-funded legal advice and assistance, those teaching and practising the law must play their part in filling the void for the provision of legal advice. There are many schemes for the provision of pro bono assistance, ranging from that provided by large-scale pro bono organisations promoted by the legal profession to law clinics run by students and law teachers, provided these are properly supervised by practitioners and covered by adequate insurance. Israel's universities, and the Law Faculty of the Hebrew University of Jerusalem in particular, are admirable examples of this kind of initiative.

It is obvious, however, that such pro bono support can never entirely compensate for properly funded, independent legal advice from qualified practitioners. It is the state's obligation to ensure that the rule of law is satisfied. There is a financial incentive for the state to ensure that legal advice and assistance is available to its citizens. It has now become quite clear, if ever there was any doubt about it, that the absence of legal advice and assistance results in increased cost and inefficiencies suffered by the state. The number of self-representing litigants has increased hugely in England and Wales. To give but one striking example relating to my own court, the Civil Division of the Court of Appeal, in the 12 months ending 31 January 2018 over 42 per cent of all applicants for permission to appeal were litigants in person. The large presence of self-representing litigants means that many cases are fought on bad points of law, wasting time and court resources; judges do not have the benefit of legal argument on all sides and may be led into error; there are an increased number of appeals both in respect of hopeless cases and in respect of errors made by the first instance judge when either one or all of the parties have been unrepresented.

More sophisticated use of information technology may help here. A £1 billion court reform programme currently under way in England and Wales has at its heart the increased use of digitisation for resolving disputes. There are currently well advanced pilots or trials for online uncontested divorces, the grant of probate for deceased persons, and online small money claims up to £10,000. At some stage an online mediation facility will be provided for online money claims. In the criminal sphere the so-called ‘common platform’ will create a single digital case management system for the Crown Prosecution Service, the police, prisons, probation and the judiciary from the point of charge to completion of the case. It also is currently being trialled.Footnote ¹⁴

Reference to an online adjudication facility brings me to the issue of courts. There is no point in citizens knowing what their rights are if they have no means of establishing and enforcing them. The rule of law requires access to an adjudication process that will resolve disputes and enable rights to be enforced. Traditionally, that adjudication has taken place in a physical building and with the parties physically present or represented before a judge or a panel of judges. The provision of such an adjudication facility is, again, the responsibility of the state. There has sometimes been a tendency to see litigants as customers, paying court fees, in return for a service. This is quite wrong. People are entitled to the resolution of their disputes not because they are customers but because that is the right of a citizen living in a state governed by the rule of law. That is not to say that it is impermissible for the state to charge a fee. It can do so, however, only if the fee is reasonable and affordable.

This was the subject of an important recent decision of the Supreme Court of the United Kingdom, in which it was held that the fees imposed in respect of proceedings in employment tribunals (ETs) and the employment appeal tribunal (EAT) were unlawful because of their effects on access to justice.Footnote ¹⁵ That was so even though there was provision for remission of fees if a claimant's disposable capital and gross monthly income were less than a specified amount. The background to the case was that until 2013 a claimant (typically an employee claiming unfair dismissal, discrimination or other breaches of employees’ rights) could bring and pursue proceedings in an ET and appeal to the EAT without paying any fee. The evidence was that, since the new fees regime came into operation, there had been a dramatic long-term reduction in the number of claims brought in the ETs in the order of 66 to 70 per cent. There was other statistical evidence but it is not necessary for me to mention it for the purpose of this lecture.

The Supreme Court found that the evidence led to the conclusion that the fees were not set at a level that everyone could afford, taking into account the availability of full or partial remissions; that they were set at a level that in practice prevented even those who could afford them from pursuing claims for small amounts and non-monetary claims, and so effectively prevented access to justice. Lord Reed, giving the leading judgment, said the following:Footnote ¹⁶

As I have said, traditionally the adjudication of disputes has taken place in a physical building with the litigants and the judges physically present. In such a case, there must be a sufficient number of courts in appropriate locations which are not too remote or otherwise inaccessible for the litigants. Court buildings with the parties and judges physically present are not, however, essential features of access to justice. The court reform programme currently under way in England and Wales envisages, as I have said, an online process for money and many other claims, initially at low value, with final determination of some disputes following telephone hearings. It is also contemplated that there will be more remote hearings by video screen. Much thought is currently being given as to how to maintain the principle of open justice in the case of hearings by video or telephone, or otherwise not in a traditional court setting.

I turn to the third of my three areas of analysis of the meaning of the rule of law – namely, the processes for holding government, public bodies and officials to account for abuse of the law and of their powers. The first thing to acknowledge is that, if laws themselves comply with the factors I have mentioned (Professor Fuller's so called eight desiderata or desirable qualities), that will in practice have some constraining influence on official oppression and abuse. If laws are generally applicable, without exclusion for officials, and are known and clear, the scope for corruption or other abuse of power is reduced.

It is equally plain, however, that for there to be an effective constraint on official abuse and oppression, citizens must have access to adjudicative procedures administered by an independent judiciary in which such abuses can be challenged. This reflects the fact that the concept of the rule of law has been, since its inception, associated with the prevention of tyranny. Aristotle, writing in the fourth century BCE, said:Footnote ¹⁷

In his treatise On the Laws and Customs of England, probably written in about 1260, Henry of Bracton expressed the rule of law in the following terms:Footnote ¹⁸

The rule of law requires, therefore, that there must be legal processes and rules for holding government, public bodies and officials to account and to constrain abuse of power.Footnote ¹⁹

This has been addressed in Britain by the great development of administrative law – that is, judicial review of administrative decisions and actions – since the mid-twentieth century. The established grounds for judicial review are that the administrative decision or act is illegal, or was not reached following a proper procedure, or was irrational. So far as concerns irrationality, the so-called Wednesbury principle, as originally formulated, is that a public body must not reach a decision ‘so unreasonable that no reasonable authority could ever come to it’.Footnote ²⁰ Lord Diplock's reformulation in a subsequent case was that the power of the court to review a decision of the government or other public body ‘applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it’.Footnote ²¹

What will be apparent immediately is how hard-edged and circumscribed is the principle as so expressed. It has been severely criticised and modified in important ways over time. One of the most important and enduring enlargements of judicial review has been the principle established in Padfield v Minister of Agriculture,Footnote ²² that there is no unfettered discretion in public law, and that statutory powers must be used to promote the policy and objects of the statute, to be determined by the courts as a matter of law. That case concerned a statutory discretion conferred on a Minister in very wide terms to refer to a committee of investigation a complaint about the milk marketing scheme under the Agricultural Marketing Act 1958. Some producers made a complaint but it was not referred to a committee of investigation. It was contended by the Minister that he had a complete discretion to decide whether to make a reference for consideration and report. That was rejected by the House of Lords. Lord Reid:Footnote ²³

More controversial is the softening of the hard-edged Wednesbury irrationality test so that there is a more flexible scrutiny of administrative decisions, with suggestions in the case law that the legality of such decisions might be determined by reference to ‘unfairness’,Footnote ²⁴ or by asking whether something has gone wrong of a nature and degree which requires the intervention of the court and, if so, what form that intervention should take,Footnote ²⁵ or by applying what has been called ‘most anxious scrutiny’ where the consequences of the administrative decision would be particularly grave.Footnote ²⁶

Most recently, there has been a growing momentum for supplementing the strict Wednesbury irrationality test by a proportionality test (that is, whether the administrative action was proportionate to the legitimate object intended to be achieved), particularly in the context of the infringement of personal rights by the government, public bodies and officials.

The proportionality test, at least in the context of infringement of fundamental human rights, was explained by Lord Sumption in a Supreme Court case as requiring an answer to the following questions in relation to the measure under challenge:

As might be expected, commentators have expressed trenchant views both forFootnote ²⁷ and againstFootnote ²⁸ the move away from the original Wednesbury irrationality approach in favour of a proportionality test. There is no doubt that, compared with the original formulation of the Wednesbury test, the move towards a sliding scale of review intensity, and particularly the adoption of a proportionality test, reflect or would reflect a significant change in judicial power as between the judiciary, Parliament and the executive.

I began this section of the lecture by stating that, in order for there to be an effective constraint on official abuse and oppression, citizens must have access to courts administered by an independent judiciary in which such abuses can be challenged. As in the case of private law disputes, laws that enable challenges to decisions and acts of the executive, other public bodies and officials, are of no value unless they are enforceable by an independent judiciary faithful to the law.Footnote ²⁹

Inherent in that concept of an independent judiciary faithful to the law are: (i) an appropriate procedure for the appointment of judges who are competent and will be faithful to the law rather than pursue a personal or political agenda regardless of legal principles and merits; (ii) security of tenure, so that judges cannot be removed except for judicial misconduct, determined by a fair and impartial procedure; and (iii) the absence of judicial corruption.

Independence of the judiciary does not require the absence of any policy or operational collaboration between the executive and the judiciary. The model in England and Wales is of a partnership between the judiciary and the executive in relation to the courts and tribunals system. That partnership takes the form of HM Courts and Tribunals Service (HMCTS), which is an executive agency of the Ministry of Justice. It is operationally independent of the Ministry of Justice and is governed by its board. Three of the members of the board are holders of judicial office, including the Senior Presiding Judge. Under its so-called ‘Framework Document’Footnote ³⁰ HMCTS is constitutionally accountable to both the Lord Chancellor and the Lord Chief Justice.

This has considerable advantages in enabling the judiciary to apply its direct experience of the delivery of justice to the modelling and operation of the courts and tribunals service. The danger is that the senior judiciary may be perceived to be implicated in difficult decisions about the allocation of a limited budget in the provision of that service, for example, in relation to the size of the judicial and administrative complement as between the different areas of law (crime, family, civil and tribunals), and as to the number and location of courts.

So far as concerns corruption, I am certain that in all of our UK jurisdictions we can profess to have a judiciary free from corruption and of absolute and undoubted integrity. Undoubtedly that has been and continues to be a major reason why the law and jurisdiction of England and Wales are the top choices for international agreements and business disputes. This makes a very significant contribution to our GDP.Footnote ³¹

A recent survey by the European Network of Councils for the Judiciary (ENCJ) shows, however, that no assumptions can be made about freedom from corruption even in many advanced democracies.Footnote ³² The survey, which was carried out at the end of 2016 and secured 11,712 responses from judges in 26 countries, shows that in 18 EU countries more than 10 per cent of judges who responded to the survey thought that some of their colleagues either were taking bribes or were not sure whether they were. In Bulgaria, Latvia, Romania, Croatia, the Czech Republic, Italy and Lithuania over 50 per cent of judges who responded to the survey thought that some of their colleagues either were taking bribes or were not sure whether they were. That is truly shocking. There is also considerable surprise to learn that even France, Germany, Belgium, Austria and Spain are included in those countries where more than 10 per cent of judges who responded to the survey thought that their colleagues either were taking bribes or were not sure. Only Sweden, the UK, Ireland, Finland and Denmark produced entirely negative results.Footnote ³³ It is obvious that a corrupt judiciary wholly undermines the rule of law, however clear and appropriate the laws may be and however accessible the courts for the adjudication of disputes and the enforcement of rights.

I turn to the next issue, which is a highly debated one – the promotion and protection of fundamental human rights and dignity. There are several legal philosophers who contend that it is not a principle of the rule of law that the law affords adequate protection of fundamental human rights.Footnote ³⁴ Lord Bingham was among the most notable of those who disagree with that view.Footnote ³⁵ His approach is what is described as the ‘thicker’ definition of the rule of law.

It must be accepted that the rule of law, as I have so far described it (the ‘thin’ definition), is not inconsistent with an evil regime and evil and oppressive laws. As Professor Brian Tamanaha has said:Footnote ³⁶

I nevertheless agree with those who say that it is not a separate constituent of the rule of law that the law protects human rights. My reasons for rejecting Lord Bingham's proposition can be stated quite simply. First, if the expression ‘the rule of law’ is to have any significance, it must reflect a consensus of the international community. That is indeed inherent in Goal 16.3 of the UN SDGs for 2015–30, to which I referred at the very beginning of the lecture. The concept is rightly applied as an international kite mark of minimum standards. It is therefore used both to criticise and to encourage improvement in failed or failing regimes.

There is, however, a plain lack of consensus as to what are fundamental human rights or, perhaps more accurately, what constitutes a breach of such fundamental rights in particular factual circumstances. Fundamental human rights can be described only in general terms, as, for example, in the Universal Declaration of Human Rights,Footnote ³⁷ the European Convention on Human Rights and Fundamental Freedoms,Footnote ³⁸ the EU Charter of Fundamental RightsFootnote ³⁹ and the International Covenants on Civil and Political RightsFootnote ⁴⁰ and on Economic, Social and Cultural Rights.Footnote ⁴¹ Their protection under the law will depend on the particular facts and the balancing of various factors, including the interests of the community and of other citizens.Footnote ⁴² There is no one overarching international body to adjudicate on those issues, but rather a myriad of international and domestic courts which do so in relation to particular countries.

Different judges in different countries and in supranational courts, such as the European Court of Human Rights, might legitimately take different views of the application of the law on similar facts. That jars with the rule-based concept of the rule of law and the requirement of predictability of the law as an ingredient of the rule of law. On the other hand, there is inevitably some overlap between the rule of law and some human rights, such as the right to a fair trial before an independent tribunal according to known laws. That in itself provides a measure of constraint against official corruption. Such a partial overlap is, however, quite different in principle from the notion that the rule of law requires the promotion generally of human rights. The ‘thin’ version of the rule of law is consistent with the checklist for the rule of law published by the Venice Commission in its March 2016 report. There it was said that:Footnote ⁴³

I will return briefly to this difficult issue at the end of the lecture.

This leads me to the fifth and final area of this lecture: measuring a country's commitment to the rule of law. As I noted at the outset, there is an ‘international consensus’ that the rule of law – in its thin version – is an essential condition for sustainable development. The question is how is compliance with it to be measured? There are currently two international models: the UN model and the Council of Europe model.

The UN model is focused on measuring the steps that national governments take to implement the Sustainable Development goals. The UN, via its General Assembly and Economic and Social Council, is to provide ‘follow-up and review’ of the achievement of the goals by governments.Footnote ⁴⁴ Progress is to be measured against a number of UN-devised key indicators, called Key Performance Indicators or KPIs. Data is to be supplied by national statistical bodies, which, in the case of the UK, is the Office of National Statistics.Footnote ⁴⁵

In addition to regional data collection, UN member states are also encouraged to submit ‘voluntary national reviews’ to the UN, showing what steps they are taking, and what progress they are making, to achieve them.Footnote ⁴⁶ Many countries have provided these reviews. Neither the UK nor Israel have submitted such a voluntary review. The UK's view is that it is ‘broadly compliant’ with the various Sustainable Development goals.Footnote ⁴⁷ Concern has been expressed in Parliament, however, that the government's response has been ‘insufficient’.Footnote ⁴⁸ In terms of Goal 16.3 of the SDGs, the UK government in March 2017 set out how the legal aid scheme ‘plays a vital role in providing access to justice …’.Footnote ⁴⁹ It is a matter of debate whether the scheme as presently constituted is properly effective in this respect.

There is a weakness in the UN approach. Rather than developing indicators focused on, for instance, the efficiency, accessibility, cost-effectiveness and quality of justice systems, the current KPIs for Goal 16.3 are very limited. They concentrate only on the number of victims of violence who report their treatment to the relevant authorities and on the number of unsentenced detainees within the overall prison population.Footnote ⁵⁰ These are important issues but they need to be supplemented by other KPIs if the UN process is to be as effective as it could be in promoting the rule of law.

The Council of Europe model provides a more detailed and appropriate approach. Its Venice Commission adopted a ‘Rule of Law’ checklist in March 2016. One of its aims is to provide a detailed means of assessing a country's commitment to and achievement of the ‘thin’ version of the rule of law. It is explicitly seen by the Venice Commission as helping to provide data to assist measurement of the achievement of UN Goal 16.3.Footnote ⁵¹

The Venice Commission's Rule of Law checklist – alongside the use of long-term data provided in the biannual reports that evaluate the quality and efficiency of justice systems, prepared by the Council of Europe's European Commission for the Efficiency of Justice (CEPEJ) – provides a practical means to demonstrate and measure how Israel (the only Council of Europe observer state which has contributed data to the CEPEJ reports) and the Council member states are meeting Goal 16.3.Footnote ⁵² The checklist and long-term data are focused on the thin version of the rule of law. They examine the justice systems of each state through analysis of court budgets, legal aid provision, court and judicial organisation, use of IT and provision of information to the public concerning the justice system and how to access it, and court (1st instance and appeals) and prosecutor (in criminal proceedings) efficiency.

The approach taken by the Council of Europe – focused, practical, and as far as possible based on the use of objective data – is one which treats the rule of law as an international standard and one capable of applying to different countries. That the CEPEJ has been carrying out its studies since 2002 equally shows that long-term comparison can be achieved. Such reports and the data they contain provide a means to highlight where a country may be weakening in terms of its commitment to and achievement of the rule of law. Equally, they provide the means to show where improvements have been made and where more work needs to be done. Their objective nature suggests that they can, as the UN Sustainable Development Goals require, be applied across many countries with their different histories, cultures and institutions.

To some this might appear to be unambitious because it does not seek to measure compliance with the thicker view of the rule of law. It does not focus on fundamental human rights. Such a view would, I think, be wrong. Without compliance with the thinner view of the rule of law – without effective institutions, effective courts and effective access to them in order to vindicate rights – a country cannot begin to implement effective human rights protection. It is possible to argue whether fundamental rights are an aspect of the rule of law, or separate from it. It is not possible, however, to argue that there can be effective protection of fundamental rights without an unwavering commitment to the thin version of the rule of law.

It would be quite wrong to think that advocates of the thin version of the rule of law are undermining or in any way devaluing or degrading fundamental human rights. On the contrary, it should lead each country to an intense reflection on what it is, other than adherence to the rule of law, that protects fundamental human rights. Membership of international bodies – such as the UN, the Council of Europe and the EU – carries with it obligations to observe such rights and a commitment to accepted principles of international law, including crimes against humanity. At the national level, fundamental human rights enshrined in written constitutions reflect in a public and transparent way the values of a nation.

In a country, like Britain, which has no written constitution with entrenched rights and where constitutional orthodoxy is that there are no restrictions on the laws that Parliament can enact, however bad or oppressive they may be, the absence of a written constitution with entrenched fundamental rights is a matter of debate – but one for another occasion.