17
Examination of witnesses
Anne Applebaum and Mark Lewis.
Q150 The Chair: Good morning and welcome to this meeting of the House of Lords Constitution Committee. Today, we hear from Mark Lewis, Chief of Public Sector Partnerships at the World Justice Project, and Anne Applebaum, who is a journalist, writer and historian. I welcome you both to this session. We have a series of questions about the rule of law and would very much like to hear your views. Let me begin with a central question: in your opinion, is there a global, shared understanding of the core tenets of the rule of law? Mr Lewis, would you like to go first?
Mark Lewis: Certainly. Thank you very much for that and thank you to the committee for inviting me here to give evidence and comment. On your question, we would say that yes, there is a broadly shared understanding of the core tenets of the rule of law. Obviously, legal traditions and practices vary across countries, regions and legal systems.
As a quick definitional point, we can broadly divide definitions of the rule of law into two groups. There are the formalist or “thin” definitions, which focus more on procedural aspects: whether the laws exist and are applied equally, without assessing their fairness or legitimacy. But a broader way of thinking about and defining the rule of law are substantive or “thick” definitions, which take into consideration certain rights that could be seen as fundamental to the rule of law. For example, is there a protection of fundamental rights? Are there constraints on power and the ensuring of access to justice? The World Justice Project defines the rule of law as a durable system of laws, institutions, norms and commitments that deliver four universal principles: accountability, just law, open government, and accessible and impartial justice. This is a substantive or thick definition, as I just laid out a moment ago.
Coming to the core of your question, this lines up very much with the definition used by the United Nations and a number of other international organisations such as the Venice Commission. I should add that the World Justice Project—I will use henceforth the acronym WJP—does not include democracy as a core tenet of the rule of law. Again, that is consistent with the other international organisations I made reference to. At the same time, this broader, substantive or thick definition incorporates many of the institutional safeguards of democracy such as limits on executive power, open government and public participation. I will stop there and hand back to you.
The Chair: Thank you. That is very helpful. Turning to Anne Applebaum, what in your experience would lead you to answer that question about the core tenets of the law?
Anne Applebaum: First, thank you for the invitation to appear here. It is a great honour. I am sorry not to be there with you in person but I join you from Warsaw, where we have had, over the last decade, an experience of an established system of rule of law being under attack. I speak a little bit from that perspective. I live here part of the time, although I also spend a lot of time in the UK.
I will offer you a simpler version of what Mark just said. The rule of law means that the law exists separately from politics. In other words, it can differ in different countries, but there is a constitution, written or unwritten; there are lawyers who have some independence; and, above all, there are courts which have independence. This system is able to function and to resist the influence of politicians. When you have that, you have rule of law. Of course, there are many in-between and intermediate versions of this. There are states and countries where there is theoretically rule of law but not always in practice. In the history of the United States, for example, you have had particular states where there was not really rule of law and the governor or local leadership could evade the law in various ways, even though nationally it existed. It is not an absolute term.
I would also say that this definition is accepted around the world. People know what the rule of law is, including in places where it is deliberately defied. Of course, there is the opposite of rule of law, which is rule by law. This means that the law is what people who have political power say it should be. In countries such as Russia, China or dozens of other autocracies, and even in some failing democracies, the court system may exist and lawyers may function and look the same. They may have the same kinds of titles as their counterparts in rule-of-law countries, but in fact they are influenced, or they are afraid or they are bribed. For whatever reason, they do not make their judgments independently of the political system. This is a fundamental difference.
Even in states that do not have rule of law, both ordinary people and the political leadership understand very well what it is. In other words, they know that their system is unfair and that they are deliberately breaking it and shaping it. In the course of my career, I have met many people—especially in Russia but also Iranians, Hong Kong Chinese and others—who understood very well that their legal systems were, one way or the other, manipulated. There is a common understanding but that does not mean that it is always commonly held.
To Mark’s point about democracy, he is right that you can theoretically have the rule of law without democracy. In some ways, it is primary to and deeper than democracy because without rule of law you cannot have free elections or any of the other accoutrements of what we think of as democracy, although at the same time it is about reinforcing and maintaining the independence of courts and maintaining them and a legal system that allows lawyers to operate freely without democracy. All those things are very difficult. Maybe you can find one or two examples of countries that are not full democracies but have rule of law—some people talk about Singapore—but that kind of system is very hard to maintain. The temptation that politicians always have is to seek to shape the system, if they can, whether to use it to persecute their enemies or to protect themselves. They will try and do that.
The Chair: Thank you very much. That is extremely helpful.
Q151 Lord Anderson of Ipswich: Thank you very much to you both for coming to see us. I have a question, first, for Mr Lewis about international comparisons. In your very helpful written evidence, you point out that the Rule of Law Index 2024 places the United Kingdom 12th in our regional group and 15th among high-income nations. That does not sound great to me. For example, Denmark, Norway, Finland, Sweden, Germany, Luxembourg, the Netherlands, Ireland, Estonia and I think New Zealand all finish above us. Could you bring those figures to life a bit and explain why this country is less good at the rule of law than these others? As a supplementary question on that—perhaps this is part of the answer—I noticed with some dismay that when it comes to impartiality within the criminal justice system, the United Kingdom declined from 0.62, which already sounds pretty low, to 0.57 over a period of five years. That sounds serious. Is it a reflection on our system of jury trial, our magistrates’ courts or something else? Can you explain to us the basis for that decline in the United Kingdom’s rating for impartiality in the criminal justice system?
Mark Lewis: Thank you very much for that question. Globally, the UK ranks 15th out of 142 countries. I will not comment on whether that is bad or good other than to say that, clearly, as we rank countries within the index, nine of the top 10 countries are in Europe.
I will answer your question as best I can. Let me just note that when I make statements about the UK and other countries, I am indeed referencing the World Justice Project’s Rule of Law Index. That is a measure of the experience and perceptions of citizens in countries about various components of the rule of law. It is, if you like, an outcomes-based assessment based on surveys of individuals and legal experts in all the respective countries. It is not an assessment of the statutory or legal framework. Again, it is based on experiences and perceptions.
What is interesting with the UK involves how we break down the rule of law to measure it. I will spare you lots of detail but explaining the decomposition of the rule of law, as we measure it, is helpful for this discussion. We break it down into constraints on government power, absence of corruption, open government, fundamental rights, the preservation of order and security, regulatory enforcement, and then civil and criminal justice. You can see that that aligns with this broader, substantive or thick definition of the rule of law that I referred to in my previous statement.
For the UK, what is interesting is that on those factors of the rule of law that I just listed which are about the preservation of liberties—in effect the constraints on government which include constraints on government power, absence of corruption, fundamental rights and open government—the UK does comparatively better, whether by scores or rankings, compared to its other components which are more like public services. Those are the civil and criminal justice systems, regulatory enforcement and order and security. The UK rates well on order and security, so I will put that to the side. But we see in the data real challenges with the affordability of and access to justice, notably in the civil justice system but also in criminal justice and regulatory enforcement.
To be a little more precise, the areas where the UK would score or be rated lower relative to other components of the rule of law include affordability of legal services, awareness of legal rights, physical or procedural barriers to court access, and delays. Delays in civil proceedings is a big one; delays in criminal proceedings and in regulatory actions are also important issues. Obviously, delays in whichever proceedings undermine confidence and impair the efficiency of the system. Coming to the criminal justice system, there are challenges in the effectiveness of the correctional system, in particular around rehabilitation.
Lord Anderson of Ipswich: Just to interrupt, I was not asking about that. I asked about the issue of impartiality in the criminal justice system, where the score seems to be particularly low.
Mark Lewis: This is on the ranking of the impartiality of judgments. I would be going too far to attribute that to one specific contributing factor or another. We have questions about perceived discrimination in the criminal and civil justice systems and the UK ranks a little bit lower there, again compared to other components of the rule of law, so there was a perception of discrimination. Again, I am not making a normative statement, I am just commenting on the data as it is reported out. If I were to proffer an explanation or a contributing factor, it would be that.
Lord Anderson of Ipswich: Could I have one more question, Lord Chairman?
The Chair: Yes, certainly.
Q152 Lord Anderson of Ipswich: It will be to both of you, but I would like to start with a question for Mark Lewis and then perhaps Anne Applebaum could come in. It is about respect for international law. Some of our witnesses said that this is an ingredient of the rule of law and reference has been made, in fact even this morning from a previous witness, to recent occasions when Parliament has been invited to legislate in admitted violation of the United Kingdom’s international law obligations. I am not sure that I can find respect for international law in your four universal principles or in the eight factors across which you assess the rule of law. I may well be wrong about that and I would appreciate your comment as to whether that is something that the World Justice Project factors into its analysis.
My question to Anne Applebaum is this: does a cavalier approach to international law affect this country’s standing abroad or is that really just par for the course these days, even among countries that are highly regarded for respecting the rule of law?
Mark Lewis: Anne, if you will permit me, I will go first. That is right: we do not measure the respect for international law. In a perfect world, we would find a way to do that. We have looked into it and there are several constraints. One is that we have not found a way that is comparable across countries about how to do that. Then in our survey work, as I said, we survey legal experts and also households. Sparing you some of the methodological specifics, suffice it to say that there is general awareness of international law among legal experts—although in many countries there is not, depending on the speciality—but, among households, we do not find enough awareness. Again, I am not making a normative statement. Just based on the data that we get from surveys, we do not get enough awareness of international law to have meaningful data on it. That is not to say you cannot measure it but we have faced that challenge.
The other component, as you may have inferred from investigations that you have done and some of my earlier comments, is that, when we are measuring the rule of law, an important fact is that we are often measuring the effectiveness of its implementation. With international law, that becomes problematic because—again, I imagine that the committee knows this better than I do—enforcement mechanisms for the international rule of law are, let us say, scattered. Again, that would become a challenge in assessing implementation at the national level.
Anne Applebaum: International law, as I am sure you well know, has a different status from national law because, especially if we are talking about democracies, it does not emerge from the same sources. It is not the product of a national debate and legislative decisions. It is not backed up by a national court system that also has legitimacy within the country, and so on, with the exception of course being those international laws that have been incorporated into the national system. Here, for example, I am thinking of the way EU law is incorporated into the domestic law of EU member states by treaty and design. Some international laws are incorporated that way, too.
International law has also always had a kind of aspirational aspect: it works when all the parties to the various treaties agree that it should work, and when they want it to work and see an advantage in it working. This is why mostly uncontroversial laws such as the law of the sea or laws determining international boundaries and so on are respected and useful; they are seen as mutually useful for both sides.
We are now living in an era of a major breakdown, though, in some of the more fundamental areas of international law, and this is not an accident. It is because both the autocratic world, and some leaders from democracies as well, have begun to deliberately undermine it, because they see it as a constraint on their own power. Just to give you an example, the Russian invasion of Ukraine defies the UN charter recognising borders of states. It defies the Geneva conventions saying that you are not supposed to harm civilians, yet that is a deliberate goal of that war. It also defies the UN convention on genocide, which has rules about eliminating or attacking groups of people for their ethnic or national identity. All those things are being deliberately defied by the Russians. You can of course find echoes of this in what the Israelis do and what the Chinese have done. You can find many examples of this all over, because you have this general deterioration.
In that real world we live in, where theoretically all these international laws still apply, we are experiencing a kind of global breakdown. Even the aspiration to make international law work, which has always had some failures, is beginning to falter. In that sense, for the UK to choose this moment to deliberately not respect laws, or to undermine them or attack treaties that it has signed up to, will add to this general sense of breakdown. I cannot quantify that and say that it will create 0.2% more difficulties or explain to you exactly the ways in which this will redound on the UK. But, as I said, since we are experiencing deliberate assaults on the system, because at this moment too many world leaders perceive international law as a constraint rather than an advantage or something that is useful to them, anything that the British Government do to undermine that simply adds to the greater deterioration.
I should say that if we are talking about pure perceptions, based not on statistics or measurements, the UK is perceived around the world—certainly in Europe but elsewhere—as a kind of shining example. Whatever its ranking in the World Justice Project’s list, it is certainly perceived as a country that adheres to and is a stickler for the rule of law. You may be a beneficiary of Dickens novels, I do not know, but there are many reasons for that aside from what happens in the UK day to day. I think that any UK undermining of international law, or a decision to revoke or not to abide by international treaties that the UK has signed, would probably have a pretty profound effect on this general deteriorating atmosphere. That is simply because the UK is seen as a pillar of the system, alongside the US, the European countries and others which wrote the original UN charter and its accompanying documents after the Second World War. The UK is seen as one of the countries that created, promulgated and supported a system that benefited a lot of people for a long time.
If the UK breaks international law, the UK will receive unusual attention. As I said, that may be for reasons of perception and not for reasons that have any basis in fact. Anything that the UK does will be seen, reported on and understood in a way that has an enormous amount of influence. I would say that the UK has a lot of influence on how these arguments about international law are going to go down the road, simply because it is seen as a pillar—an author and a writer—of a lot of what we now call the international legal system.
Baroness Andrews: Good morning. I want to ask a specific question to Mark Lewis, but it actually bears on what Anne Applebaum said about perception. When we read the tables in the World Justice Project, we are alarmed because we appear to be sliding down in specific and quite important respects. What inspired the World Justice Project in the first place? Was it a concern about lack of transparency, that we simply do not know how justice operates in a comparative sense? Was there ever an intention to evaluate this within the framework of the rule of law? Given the power of perception, exactly as Anne Applebaum described it, are you aware of the impact that those tables can have on how we view performance, the veracity and strength of our democracies and so on? Are you concerned about the outcomes? Is there an accountability in what you prepare by statistics and analysis in what you expect to happen as a result?
Mark Lewis: Thank you very much for the question. The motivation for establishing the World Justice Project, constructing the Rule of Law Index and follow-on products is, to some extent, an empiricist’s view of the world: what you know is what you can measure. That is overstating it a bit in the field of the rule of law, but it was certainly our view that there was this dearth of empirical or quantitative metrics on the rule of law. That was a problem both within countries in assessing how they are improving, or not improving, and then also in preventing more useful cross-country comparisons. That was the motivation. Now, as your question suggests, that was paired with some concern that there may have been a deterioration in components of the rule of law. Looking ahead, that may have been truer than we would have thought, unfortunately, as we have seen a real decline in the rule of law globally, as we measure it. We use the term of the ongoing “rule of law recession”. In terms of how countries use the Rule of Law Index, we would like to see them use it more, not to inflate the importance of the World Justice Project, but really to think about ways the perceptions of the rule of law in-country are changing. It is in some ways analogous to the discussion we were having a few minutes ago about the UK, because it can be a useful coalescing tool for attention.
But, on the positive side, we have seen lots of countries use it. The motivations may tend to be somewhat narrow. It is often middle-income countries interested in attracting investment into their country. The Rule of Law Index is not strictly a business environment assessment, but there are some overlaps with that type of exercise, so countries pay attention and use the Index as a kind of focusing, monitoring and diagnostic tool. In short, again, it is not for the grandiosity of the World Justice Project, we would love to see countries across the board use the index—but use it more broadly, with a greater explicit attention to the rule of law. Our message is that for individual countries across the world, irrespective of where they are in the overall rankings, what matters is the change. Are they improving or not? We do see that in some countries.
Q153 Lord Griffiths of Burry Port: Thank you both very much for your engagement with us for this exercise. I want to speak to Anne Applebaum; I am particularly interested that she is speaking to us from Warsaw. This time last week, I was part of the delegation from this Parliament to the Council of Europe and spent the week in Strasbourg. The breakdown to which she alludes is more real and perhaps to be feared even more than she might have suggested. After this meeting, for example, I will be meeting a group of people from Georgia who are particularly worried about the rule of law being disrespected by politicians. You talked about the rule of law existing when it stands against and despite politicians. Georgia is not in that state but we have had debates about Azerbaijan and aspects of life in Turkey. There is Hungary, with its dreadful Government and all the rest of it. Of course, we were there right through the exclusion and ejection of Russia from the Council of Europe and I remember the lowering of that flag. It simply seems to me that the modalities that have underpinned the evolution of societies around the world since the Second World War are at risk at the moment. I would love to read Anne Applebaum’s books about autocracies, for example, and how they arise. I just wonder: how do we heed the warnings?
I do my very best to beat the British drum, as we were authors of so many of these modalities and conventions—there was our key part in 1945—but I promise you that in five years of government, where three migration Acts were passing through our Parliament, it got more and more difficult to be purist from a British point of view about our political life. Could you help us not just to understand our fears, which may be subjective, but to find ways of measuring—Mark Lewis talked about measuring but let us talk about it in a different way—how great a threat these movements in Europe are at the moment? What are all the consequences that might come from the breakdown of the rule of law in Europe in a more global sense?
Anne Applebaum: First, what is happening in Europe is happening in other places. Maybe we notice it or are affected by it more in Europe, because it is closer to home. Because there is now a kind of copycat pattern, both elected and autocratic leaders watch to see what others are doing and they imitate one another. If your impression is that this is a spiralling and worsening problem, I think that is correct.
You can start with a couple of places: it is a broad subject, but if you start with international law, you would have to begin with a really concerted effort made by the Chinese, going back a decade, to change the language that is used at the UN and in international institutions. The Chinese dislike the idea of human rights, which to us are fundamental. They are almost the underlying basis for us, of the rule of law exists and that is why we have it: to protect human rights. That is what we think. The Chinese, over a decade, have successfully tried to remove this language [of human rights] as far as they can or delete it. This is documented and I write about it in my book; others have written about it as well. Instead of speaking about human rights, they use the word “sovereignty”, which I know has a completely different connotation in British political debate. They use it to mean, “We in China decide what happens inside China and you aren’t allowed to criticise us”. In other words, they are seeking to undermine the idea that there is something universal about human rights, and that human rights organisations, other countries or international institutions are therefore capable of monitoring or judging human rights inside China.
That is essentially their goal, and that idea—that we get to decide what our rights are, and there is no international standard or any other standard to hold them up against—is one that you can now hear being adopted by leaders across the globe, whether in Venezuela, Zimbabwe or Iran. In Iran, they would say that human rights are a western foreign concept invented by Europeans and they do not have to listen to it. In Russia, the idea is mocked in various ways as well. There has been a concerted effort to undermine that language, because the autocrats and would-be autocrats have understood that the principles of human rights limit them—and they are not wrong.
Throughout the 1960s and the decades up to the 1990s, many of the most successful human rights movements in the world, including those in Russia and eastern Europe that helped to lead to the end of the Soviet Union and the east European communist parties—Soviet empire is what I wanted to say—used the language of human rights as a form of justification. They spoke about the need for rights and for rule of law as a part of their argument for why the system was bad and should come to an end. Many of the autocracies learned from that experience. In other words, they saw that this was very powerful language and they have also heard it used since then. The best example is that, in 2014 in Ukraine, the street demonstrations that led to the end of the Yanukovych presidency were all about the rule of law and corruption. People were waving the EU flag and doing so because, in Ukraine, the EU was a symbol of the rule of law—it is seen as a kind of empire of laws, rightly or wrongly.
The power of this language and its perceived success has led to this backlash, so you are not wrong in seeing this backlash coming. It has been notable in the autocratic world. All would-be autocrats, or anyone who is elected to office legitimately and then has designs to stay in office longer, to change the nature of the political system or to alter his or her democracy to make it better for the ruling party, almost immediately see that they need to attack, undermine or change this language. It is not an accident that in Hungary or Poland, where political leaders felt that only they had the legitimacy to rule because they represented the real Hungarians or the real Poles, one of the first things that those leaders did was to assault the rule of law. Poland and Hungary are different and it unfolded differently in those two places, but the intention was the same: “We have the right to rule and others don’t. Therefore we need to alter the system, and the way to do that is that we’re going to change the constitution”. That was in the case of Hungary. In the case of Poland, they were going to alter the courts and make them not independent but rather beholden to them. You will have seen this movement in Georgia and in Slovakia. You see versions of it, by the way, in Italy and Spain, in Mexico and in other countries. Anywhere where you have a political leader who is seeking to change the nature of the system to his own advantage—it is usually a him—he will attempt to do this.
The danger of that is that other leaders perceive it as successful. Viktor Orban has been in power for many years and a lot of other politicians in weakened democracies would also like to be in power for many years, so they begin to see how this works and copy some of those actions. You asked about Europe and not the United States, but Orban has been a kind of model for not all but a part of the American Republican Party, precisely because he changed his constitution and the legal system. He altered the rule of law in Hungary in ways that enabled his party to stay in power for a long time, so some of what you are hearing in the United States is exactly the same phenomenon.
I should also say, by way of fairness, that when there are attacks on the rule of law, on judges and courts—in America, you have actually had attacks on lawyers and the legal profession—we sometimes sloppily say that is a right-wing phenomenon or something to do with the far right. It can also be a far-left phenomenon: the great example in our generation is Hugo Chávez’s and Maduro’s Venezuela. It is a phenomenon that does not necessarily have a political colour. It does not have to be right wing or left wing. It can be associated with theocracy, as in Iran, or with Bolivarian socialism, as in Venezuela, but it always amounts to the same thing. It is a way for a ruling party, a clique or person, or a cabal to change a democratic system in order to stay in power. The reason why you see so much of it is because people are seeing that it works. It is a way to alter a political system to give yourself more power.
Is it a danger for the UK? It is in that the UK, like many of the other European countries that are on the list that Mark read out, referred to a few minutes ago by the committee, is a country that is a great beneficiary of the rule of law systems in its neighbours and the countries that it trades with. As the UK trades with Europe, and indeed with China and the United States, any deterioration in the rule of law in those countries is bad for UK companies. It is bad for business and for trade. I suppose that, in a more amorphous way, it is bad for the general atmosphere. I am not naming any names but you could imagine UK politicians in the future being tempted by similar tricks or games: “If it works in Poland, maybe it would work in Britain”. I know that probably seems far-fetched to you right now, but it seemed pretty far-fetched in the United States a decade ago as well; now, it seems much less so.
To sum up, the deterioration of the climate is bad for Britain because Britain is a country that is a beneficiary of this stable system. It will also always be a temptation for British politicians, or any politician, who sees attacks on the rule of law, on judges or on courts as a way to obtain or hold power.
The Chair: Before we move on, if you want to go into great detail, we would very much welcome any further written submissions that you want to make to us. I will now move on to Lord Waldegrave.
Q154 Lord Waldegrave of North Hill: The written submissions should really be that we all read Anne’s books. This is a difficult, $64,000 question, but we used to be told, in the old days before history had ended, that we were all getting wealthier and would therefore behave in a more civilised way. Why is it going wrong worldwide now? What are the underlying causes that link what is happening in India, which is becoming a proud superpower and so on, with what is happening in Hungary or Venezuela?
Anne Applebaum: Is that a question for me?
Lord Waldegrave of North Hill: Yes, it is, I am afraid.
Anne Applebaum: I am afraid that in the context of this hour-and-a-half committee meeting I will not be able to give you a full answer. Everybody has their theories; my theory is that it is to do with the nature of political communication and the way in which the internet and social media have successfully polarised all of us. One of the things that the rule of law depends on is a shared set of agreements about what is public space and how our systems work. We built those shared public agreements in some cases, as in the United Kingdom, over many centuries. What social media has done very quickly is to divide us into not just groups of people who disagree or have different opinions, but people who have very different factual definitions and understandings of the world, so they no longer agree about how our systems work or should work. They do not share a common sense of cause or purpose.
This is more profound in some countries than in others. This may be unpopular, but I think it is partly thanks to the BBC that the UK maintains more of a shared public space than some other countries, for example the United States. But in places where it is profound, you now have parts of the country considering other parts not to be legitimate citizens, to have legitimate rights or to be legitimate participants in public debate. You can see that in India, in the United States and in Brazil. Of course, you can see it in autocracies, which sometimes deliberately try to create these divisions as a way of keeping people out of politics. Fundamentally, underlying this is that very deep polarisation and I think it goes back to the way in which we get and process information.
Almost every big change in media and information culture that you have throughout human history then creates an enormous change in politics, whether it is the invention of the printing press, which led to religious wars—I am now being very brief—or the invention of radio, which was the great tool of both Hitler and Stalin. Then of course FDR, President Roosevelt, created a radio response. Each of these tools has created different kinds of politics and this has been one of the effects of social media on all of us. That to me is the only explanation that accounts for the same phenomenon happening in countries that otherwise really have nothing in common, economically, historically or geographically. Economics cannot explain why very successful countries such as Poland, for example, whose income is rising rapidly have the same problem as countries that are not economically successful. That is my explanation, but it is an argument that is being had by many people and others have other opinions.
Lord Waldegrave of North Hill: I find it very convincing, thank you.
The Chair: Mr Lewis, do you want to take a view on that? Your hand is up.
Mark Lewis: Thank you. I agree with the entirety of what Anne just said and add just a couple of points. The first is that, at the risk of positing a tautology, we see a rise in authoritarian trends as explaining this. To refer back to the data, this can be seen at a granular level, for example restrictions on the freedom of assembly or other measures of civic space, such as freedoms of speech or the ability of political parties and civil society groups to organise. It is at that granular level you can see the way in which, again as Anne was saying, across the income spectrum countries have similar phenomena with a sort of shrinking of civic space and an increase in authoritarianism. That is also captured in measures of the functioning of the judiciary and its independence.
I would make one much more point—it may be half a point or half a trend—which is that pressures on government budgets matter a lot. This comes back more to the functioning of judicial systems. I am not making a policy diagnosis or prescription here, but, as I suggested earlier, one feature for the UK is that the challenges of delivering effective judicial services as captured, for example, in these delays to criminal and civil proceedings has sometimes been due to resource constraints. This has really undercut the ability of Governments to deliver services and thereby, in the perception of the average citizen, can be seen as a weakening of the rule of law. One could then make the argument that there may be a little less faith in the rule of law. Likewise, this is a feature that one sees across the income spectrum across countries. It is more pronounced in low-income countries and was pushed further down by Covid and the resource constraints associated with that period. Again, it is another trend that we see across countries.
Q155 Lord Beith: You put a lot of weight on the rule of law as almost a proxy for liberal democracy as a whole. The rule of law is a necessary but not sufficient condition of liberal democracy. You can have a state which still operates the rule of law but passes discriminatory laws; that is what South Africa did. Those laws can be tested in the courts but are powerfully discriminatory. You can have the rule of law and deny minority rights within the framework of the law itself. One only has to look at Hong Kong at the moment, where the judiciary has struggled to retain the rule of law. It ends up having to enforce laws which, to us, are completely unacceptable and a denial of liberal democracy. Ought we not to get the analysis right in the first place and recognise that a number of other things have to exist alongside the rule of law to have a genuine liberal democracy, and that we cannot rely on the rule of law alone? My comment reflects Anne Applebaum’s earlier reply.
Anne Applebaum: I would answer that by saying that of course I agree. It is a piece of the story and There are certainly dictatorships that seek to maintain a semblance of the rule of law, at least around non-political issues, for the purpose of commerce and so on. A number of Asian autocracies or semi-autocracies fit that model. But it is certainly true that when you have a weakened democracy or one that is backsliding, or whatever term you want to use, the rule of law is one of the first things that a would-be autocrat or strongman leader seeks to undermine, because it is one of the things that puts a constraint on executive power. That is usually why it is one of the things first in line. A leader who wants to change the nature of his political system will first seek to change the judges, or to undermine or corrupt them—there are different tactics. But the rule of law is not the whole package of liberal democracy, of course; it is just an underlying piece of it.
Lord Beith: But an essential piece of it.
Anne Applebaum: Essential, yes, of course.
The Chair: Let us turn to Lady Andrews for the next question.
Baroness Andrews: Thank you, Lord Chair. I was offered a question which was, “What is the broader impact of a decline in the rule of law in Europe and the USA?”, but we have covered a lot of it.
The Chair: We have covered a lot, yes.
Q156 Baroness Andrews: If I may, can I just develop a few of the things that we have heard? I know that we are dealing with vast historical issues here. These are not contemporary issues; they go very deep into cultures and geopolitics. One thing that Anne Applebaum said, as I understood her, was that the rule of law partly fails because of a failure to resist the influence of politicians and the erosion, essentially, of checks and balances. That is what we have seen in so many countries in Europe and now see in the United States. Yes, the rule of law is separate from democracy but it is deeply impacted by autocracy or authoritarianism, however you define these trends which we see. I would have thought that there was in fact a relationship between the deepening of inequalities and some of the things that are happening, too.
If I may go to the article that you wrote on why dictatorships fail in this context, I was slightly puzzled by your conclusion. Your argument, which was in relation to the United States, was essentially that the constitution had not been upheld by the present President. The makers of the constitution had designed in the checks and balances which were being overridden wilfully by the President, so are we looking at political failure rather than the failure of the rule of law? Where are the checks and balances likely to come without rewriting the constitution in a different way for a different generation, making it possible for the constitution to override presidential executive orders or whatever can be put in place which is autocratic? Where do you see the resolution? My conclusion was that it may not be, “Why do dictatorships fail?”, but, “Why do democracies fail?”
Anne Applebaum: Yes, thank you. I had to remember while you were speaking which article had that title, but I think I remember now. The main argument about the United States is not so much that the constitution is failing, although there are all kinds of issues with the American constitution, which was written in the 18th century—yes, for a different time, with a different set of ideas and a different kind of country in mind. The main failing is that the checks and balances do not work because the people who are assigned to be those checks and balances are not playing their role. In the US, it is actually Congress which has the role of checking the President, and Congress is at the moment wilfully surrendering its powers to the President, which it does not have to do.
For example, tariffs, which are essentially a tax, should be in the hands of Congress. President Trump is imposing tariffs and moving them up and down, and so on, on the basis of an emergency declaration which has no basis in reality. The failure in the United States is really the failure of the Republican-led Congress to block the President, which it could and should do. The founders imagined that it would do that. One thing that the authors of the American constitution did not imagine was that Congress would not play its role—in other words, that senators would not do what they were supposed to do. Nor did they really imagine, when they created an elaborate system designed to create judicial independence—it involves the way that salaries are set and judges, who are supposed to be absolutely free of political taint or influence, are chosen—partisan judges making decisions, not because they are somehow influenced by Congress or the President being able to manipulate their salaries, but doing so because they are partisans. They seek to promote a particular politician or party rather than the constitution.
What you have in the United States right now is people who are really not playing their role. If you ask why that is happening, you would have to talk about culture and the politics of the last decade, and maybe go back to talking about the change in the nature of media and public conversation as well. The problem in the United States is not that the constitution is bad, although in theory it could be better. The problem is that you have actors not playing their roles. I should say here that I am not a constitutional scholar in the US, nor am I a lawyer, but this is from the observations I have made over the last couple of years.
The Chair: Lady Laing, did you have a little supplementary?
Q157 Baroness Laing of Elderslie: It has been fascinating to listen to you developing these themes this morning, having read the excellent evidence that you gave to us. I will ask this first to Anne Applebaum but also to Mark Lewis. Anne, you said that the denigration of the rule of law is a spiralling problem. Setting aside the countries which you explained have a different view from us, and we are not surprised at that, can we look just at Europe and the USA and the driving trends in the rule of law? We can understand why authoritarianism and autocracy cause a problem, but can we explore the rising role of populism, particularly in the USA but also in European countries, because it is happening here in the UK as well? Is that a threat to the rule of law?
Anne Applebaum: I dislike the word populism because it means many things to many people. In the United States, we had a so-called populist movement in the 19th century that was very different from populism as we refer to it right now. If populism just means a movement that seeks to bring issues to the fore that were previously neglected, I do not see any problem with it. The problem is what I prefer to call autocratic populism, which is where you have the rise of a political movement that identifies itself as the only movement that has a right to rule. Again, this is when you hear the language, “We are the true Americans”, or, “We are the real Poles”, or the real Hungarians or Venezuelans, and our political opponents are elites or foreigners or traitors, or people who do not count politically.
When you begin to hear that kind of language, saying, “Only our party deserves to win and only we represent the true interests of the nation”, you have to become worried. It is then not just about wanting a different immigration policy, which is a perfectly legitimate subject to discuss. In any democracy, you can make your own immigration policy. This is where it goes beyond that and becomes about something else—in other words, the promotion of one political clan or tribe as the only one that is allowed to rule. When you have a party or a politician like that who comes to power, they do so feeling that they have the right to change the system to make sure that only they ever rule, because their opponents are vermin—a word President Trump actually used during the campaign—or traitors, or they are not real Americans or are opposed to the interests of the nation. Then you begin to have these gestures to changing the nature of the system, so that is the language to listen for.
I know that immigration has been a difficult issue in the UK, as it is everywhere, and there are other difficult issues, but the actual arguments over those issues are all fine. The danger is political parties which see themselves as having a special right to rule. This is the thing that is dangerous, not necessarily all the themes that they use to make their political case.
Baroness Laing of Elderslie: I have a follow-up, unless I am interrupting Mr Lewis, who might wish to address that issue.
Mark Lewis: I do not. I agree with what Anne just said and would just be repeating her comments.
Baroness Laing of Elderslie: Thank you. It was quite interesting when this came out in what you said this morning: that what we are seeing is that the checks and balances of constitutional settlements are not working how they should, because some actors are not playing their part. Anne Applebaum used the phrase “partisan judges”, so, comparing the US to the UK, does the method of the appointment of judges play an important part? What I am getting at here is that, in the UK, judges are appointed within the legal and judicial systems. There is no political interference, whereas in the US there are those pre-appointment trials. I am not sure if I am using the right phrase, but there is certainly a political aspect to the appointment of judges. Does that play a part in the phrase you used about “partisan judges”?
Anne Applebaum: I would love to hear what Mark Lewis says about this because I suspect that he has studied it more systematically, but, as you say, there are different methods of appointing judges in different countries. The Mexican Government have just decided to elect all their judges, which is interesting. Actually, the United States has always had some elected judges at the state level and we have a semi-political system for appointing federal judges. That was kind of by general agreement until fairly recently—Mark will correct me if I am wrong. It was fairly apolitical and gradually became more and more partisan over the last couple of decades. It is hard for me to say which is better.
In Poland, the recent rule-of-law argument was also partly about how judges are appointed. Should they be appointed by other judges and, if so, which ones? The Government sought to intervene in that process and politicise it as well. I can imagine that there are different solutions in different democracies—ways that might produce better or worse outcomes. But whichever solution you choose, whether that is by gentlemen’s agreement, as it was in the United States for a long time, with federal judges appointed more or less on the basis of their qualifications and legal scholarship rather than their views on particular subjects, or systematic, so that the body of judges chooses its successors, anything that can keep the process apolitical and ensure that judges are appointed on merit and scholarship is better. I do not know enough about the UK system to say definitively that it is better than the American system, but if it has that element of impartiality and a preference for scholarship built into it, as opposed to partisanship, then, yes, it is a better system.
Mark Lewis: I would just add that this is a very good question. I confess that it is probably something that the World Justice Project should target in our upcoming analytical work. Just comparing the UK and the US, for example, the US ranks lower on impartiality and freedom from government influence, and other measures of independence. Again, I am not making a normative statement here, but the US also measures less well on the effectiveness of the justice system. There are a lot of factors at play here. I am reluctant, in the absences of broader evidence, to make a firm link between the method of the selection of justice and the impartiality and outcomes of the justice system, but there does seem to be something there. Anne referred to the Mexico case, which is quite a dramatic example. It will be interesting to see what happens there, because that is clearly steering the judicial system in a more political direction. And it will be interesting to see the perceptions of its impartiality, or lack thereof, and the ability of that system to function under such a system for selecting judges.
Q158 Lord Bellamy: The general question is: what can the UK learn from other countries about the rule of law? It may be primarily for Mark Lewis, but while I have you, Mr Lewis, can I press you a little further on Lord Anderson’s opening question about some of your low scores for the United Kingdom? I think this committee is only too well aware of the challenges to civil and criminal justice and to the prison system, partly as a result of the resources that you mentioned, but this finding that the criminal system has a low rating for impartiality is worrying from the point of view of this committee. Can I press you a little further on what the methodology of that finding is, what the evidence is and how you got to that conclusion, either now or later? It is something that we are necessarily concerned about in this committee.
Mark Lewis: Yes, absolutely, and similar findings are present. This is not to diminish the importance of what you note nor to say that something should not be done about it, but it is also a finding that we see in many other higher income countries: in France and the US, for example, although the US presents a more complicated situation in some of these areas. As I noted previously, there is a perception of discrimination in the system or of unequal treatment and thus outcomes. Again, these are perceptions from surveys of people who have been affected by or use the system.
What we do methodologically is to ask questions. In those surveys, as I noted earlier, there are two types. One is individual or household surveys of ordinary citizens; the other is surveys of legal experts. We try to get a balance of types of legal experts, so that we have a good pool for each broad category of the justice system—civil justice, criminal justice, et cetera. The questions will take different forms but are very much like: “Do you have experience in the criminal justice system and, if so, is your experience that the system is impartial?” There are different sets of questions and I will share their specifics with the committee staff afterwards, and we can provide a short summary.
Lord Bellamy: That would be helpful.
Mark Lewis: We use very specific questions such as, “Have you been subject to discrimination?”, which is about experience. Then there is the perception: “Do you perceive that the system is discriminatory or coming to judgments on the basis of factors other than the facts of the specific case?”
Baroness Hamwee: Could we ask for the same factors on civil justice as well?
Mark Lewis: Absolutely. I will share that with the committee.
The Chair: In that case, that brings this session to an end. Thank you very much for being so candid and thorough in your answers. Again, if you have any extra thoughts that you would like us to have, please send in written evidence. We will publish our report sometime in the late autumn or early winter and I will make sure that you get copies. Thank you both very much indeed.
