Tom Bingham, former master of the rolls and one of the greatest jurists of my lifetime, published his seminal book The Rule of Law in 2010. He asked me to help promote it as he endeavoured to make this crucial constitutional principle more accessible to the people it is designed to protect. Sadly, in the years since its publication, fewer and fewer people are protected. This is because the UK is backsliding on its rule of law obligations.
The rule of law seeks to ensure that everyone is bound by, and entitled to the benefit of, publicly made laws. This requires a system of government that strives for equality and respect for international obligations, such as the European Convention on Human Rights (ECHR). The rule of law is not just about a government ruling by laws—that is what authoritarian regimes do. Yet, increasingly, I fear that is the trajectory we are on.
Examples abound: the UK’s civic space rating on the Civicus Monitor, which tracks fundamental freedoms globally, has been downgraded from “narrowed” to “obstructed”. We now sit alongside countries like South Africa and Hungary in how state authorities undermine civil society organisations, “including through the use of illegal surveillance, bureaucratic harassment and demeaning public statements”.
There are also calls from within the Tory party that the UK should leave the ECHR—abandoning the values-based system we spent decades nurturing for the benefit of all people, only to possibly join human rights-ignoring countries like Belarus and Russia. Damningly, a new report by law reform organisation, Justice (of which I am a council member) reveals that leaving the ECHR would only make wholesale the derogation of human rights that has been happening on a piecemeal basis for years. Speaking about the Illegal Migration Bill in June, a month before it was passed, I warned that international law is being completely ignored. Justice’s system-wide analysis shows this attitude toward the rule of law is writ large across a swathe of recent policymaking.
The Victims and Prisoners Bill, presently before parliament, is the latest proposal that would strip human rights recourse from whole groups of people. Laws like the Public Order Act could have a chilling effect on our rights to freedom of thought, expression and peaceful assembly. The Covert Human Intelligence Sources (“Spycops”) Act endows numerous state agencies the power to licence their agents to commit grave crimes, even here in the UK.
Yet it is more than just what the government is legislating that is diminishing the rule of law; even how it legislates is concerning. Public consultations, a valuable opportunity for the government to consider public and expert opinion, are often inadequately conducted, if at all. Consultation for the Bill of Rights Bill made a mockery of our legislative process. About 90 per cent of the 12,000 responses opposed critical reforms, yet they were completely ignored. Ministers increasingly amend or repeal laws with little parliamentary oversight or scrutiny, using aptly named “Henry VIII” powers. As a result, Justice has warned that “lawmaking has become less transparent, less accountable, less inclusive, and less democratic.”
Our access to justice—another pillar of the rule of law—has been decimated by cuts to legal aid, leaving victims and witnesses waiting months or even years on ever-growing backlogs of cases. “Legal aid deserts” are spreading around the country because public expenditure on legal aid dropped by a quarter between 2009 and March 2022. And if this has not broken public trust in the justice system, then the government’s continued and unfounded attacks on lawyers and judges (read: “enemies of the people”) certainly will. In truth, lawyers represent their clients’ interests without fear or favour, and judges uphold the law, even if the government of the day dislikes it.
While we all lose when the government reneges on its rule of law responsibilities, those with the least, as ever, lose most of all. Significant systemic inequalities remain unaddressed in our society. Even though the government has a public sector equality duty, it often seems as though inequality and discrimination are an afterthought. We may even be blind to ongoing discrimination because the government does not always collect or publish high-quality equality data.
In its report, Justice has applied Tom Bingham’s rule of law principles and uncovered system-wide derogation. While each problematic piece of legislation or cut in funding taken individually may not spell disaster, the report has shown that these incremental steps have led us down a dangerous path. It will now be up to a bold future government to do what is necessary to get us back on track: to repeal the legislation damaging the rule of law and offer a roadmap back to a system that serves the interests of all.
