The report used the Venice Commission’s Rule of Law Toolkit, which uses 5 benchmarks to assess the state of the rule of law in a jurisdiction: legality, legal certainty, prevention of abuse of powers, equality before the law and non-discrimination, and access to justice.
To define the rule of law, the authors referenced Lord Bingham, who stated 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”. In fewer words, all are equal before the law, both the individuals and the state. The rule of law thus prevents the abuse of state power and the interference with individuals’ freedoms by the Government.
Another pertinent quote from Lord Bingham, which was included in the report, reads: “The hallmarks of a regime which flouts the rule of law are, alas, all too familiar: the midnight knock on the door, the sudden disappearance, the show trial, the subjection of prisoners to genetic experiment, the confession extracted by torture, the gulag and the concentration camp, the gas chamber, the practice of genocide or ethnic cleansing, the waging of aggressive war. The list is endless.”
The report found that over the past decade, and especially over the past 5 years, the UK has regressed significantly on multiple dimensions underpinning the rule of law. Key findings show that the transparency, accountability, inclusivity, and democratic nature of lawmaking have diminished. The UK Government has gained significant discretion through the use of secondary legislation and Henry VIII powers, allowing for substantial alterations to the law with insufficient scrutiny or oversight, while the rapid introduction of vaguely defined regulations during the pandemic eroded the concept of legal certainty. The Parliament is also progressively relinquishing authority to the executive branch.
Addressing access to justice, the authors state that the significant cuts to legal aid and court services have resulted in delayed and increasingly denied justice. Cost-saving measures, like the Single Justice Procedure, and restrictions on certain judicial review proceedings have reduced the openness and accountability of decision-makers. The report touches on the Government’s attacks directed at the legal profession, which diminishes the ability of lawyers to uphold the rule of law. Verbal attacks and branding lawyers as “lefty” or “woke” for taking cases that might challenge the state or be perceived as unpopular reduce the lawyers’ ability to “speak truth to power, to act for their clients regardless of who they are, and to do so without fear or favour.”
The report also underlined that too little has been done to redress the racial injustice running deep throughout the society. From the necessity for increased data gathering to identify the issues, to the establishment of a powerful equalities watchdog to tackle these concerns, the UK is falling short of meeting the rightful expectations of communities across the country.
Fiona Rutherford, Chief Executive of JUSTICE commented:
“There are multiple reasons why we have reached the parlous state we are in. Each one viewed in isolation does not amount to the wholesale negation of the rule of law – but taken together they create a picture suggesting that the rule of law is being incrementally undermined. We believe we have reached a tipping point and are determined to highlight a route back, before the UK’s standing both at home and abroad is fatally diminished for a generation.”
She continued: “The backsliding on the rule of law over the last decade has real implications for us all. Protestors could face prosecution, potentially even for something as innocuous as challenging the closure of a library. The ability of people to hold the Government to account when they have been wronged at the hands of the state, has been reduced, while at the same time, the law-making process has become less transparent and less inclusive. Ever more rules and regulations are being imposed without proper democratic oversight from Parliament. Society’s most marginalised or vulnerable, such as migrants, prisoners, and victims of police action, lack automatic access to justice and are a bellwether for the human rights reduction we all face.”
The report makes 20 recommendations:
1. The Government must strengthen the principles underpinning the creation of delegated legislation.
2. The Government must improve and expand on its use of consultation and pre-legislative scrutiny.
3. The Government must make greater use of post-legislative scrutiny.
4. The Government must establish clear principles for the use of skeletal bills and delegated powers.
5. Parliament should adopt enhanced procedures for the scrutiny of statutory instruments, with increased opportunities for amendments.
6. The Government must establish a clear framework for law-making in an Emergency.
7. The Human Rights Act 1998, and the UK’s membership of the ECHR, should be safeguarded, and efforts explored to expand its protections.
8. The Government must be prepared to take bold action, including repealing some of the more problematic legislation passed since 2019.
9. The Government should strengthen awareness raising and public ownership of human rights.
10. The Government must improve its legislative practices with respect to the use of ‘Henry VIII’ powers.
11. The Government must uphold legal certainty, ensuring that retrospective legislation is rarely used, and only in cases where it is absolutely necessary.
12. The Government must be clear in distinguishing between legally enforceable regulations and non-binding guidance.
13. The Government must ensure that any regulations in an emergency must be drafted clearly, to ensure that individuals know whether their actions will attract liability or sanction.
14.The Government must commit to properly resourcing the justice system.
15. The Government must affirm the importance of judicial review
16. The Government must uphold the principle of open justice.
17. The Government must safeguard judicial independence and the legal profession
18. The Government must improve the collection, storage, management and provision of equalities data.
19. The Government must increase the use and quality of Equality Impact Assessments for legislation.
20. The Government must strengthen the enforcement powers of the Equality and Human Rights Commission, and commit to ensuring its independence.
Baroness Helena Kennedy of the Shaws KC, President of JUSTICE concluded:
“The past five years have seen an escalating trend in legislation and policy which fundamentally challenge human rights protections in the UK, from the ‘Spy Cops’ law to the Illegal Migration Act. As a consequence, the rule of law in this country is under unprecedented threat, and reversing this trend will take hard work and consensus across the political spectrum. We call upon all policymakers to properly consider this report and act upon it.”
Click here to read the report titled “The State We’re in: Addressing Threats & Challenges to the Rule of Law”.