The University of Leeds, School of Law: Dr Paolo Sandro, Dr Stuart Wallace, Dr James Greenwood-Reeves, and Rebecca Moosavian – Written Evidence (ROL0048)

Executive Summary

1. The rule of law is a legal and political ideal of universal appeal. In a nutshell, it prohibits arbitrary government.
2. Debates about whether it is a formal or substantive ideal are partially misguided, for already in a formal sense the rule of law makes demands as to the contents of laws: they should be general; prospective; clearly formulated; non-contradictory; and possible to obey.
3. Crucially, the rule of law is also an institutional ideal: it requires that a certain institutional framework is realised through which individuals can access an independent court to vindicate their rights. This represents the fundamental right of access to justice, which must be guaranteed by the state for all. Therefore, the single biggest threat to the rule of law in the UK is the inability of millions to access legal aid.
4. The rule of law is a fundamental tenet of the UK’s constitutional arrangements as a counterpart to parliamentary sovereignty, by requiring independent courts to interpret and apply the legislation made by Parliament. As such, it has also played the function exercised by codified constitutions in other countries against authoritarian rule. However, historical relevance should not leave us complacent: for the rule of law obtains only insofar as political actors feel compelled to comply with its demands.
5. In recent times, two legislative techniques which should be ‘exceptional’ have been more frequently used in Acts of Parliament: Henry VIII powers and ouster (or privative) clauses. Both are a direct affront to the rule of law – on any understanding, formal or substantive – and their use in legislation should be reduced (or, at the very least, be subject to the strictest scrutiny in Parliament).
6. More generally, all legislation should be scrutinised more strictly for compatibility with the demands of the rule of law, so that something like the Illegal Migration Act 2023 – which violates the rule of law in more than one sense – will not occur again. The House of Lords should not feel that is constitutionally improper to reject draft legislation that clearly violates the rule of law.
7. Finally, the rule of law is not simply the concern of lawyers and cannot solely rely on the commitment of political and legal actors for its ongoing efficacy. Being partly a political ideal, its continuous operation ultimately relies on a shared collective consensus that the rule of law matters. Therefore, outside of formal state institutions, civic society can provide support in promoting the rule of law, through education, awareness-raising, and capacity-building. Additionally, social movements and activist groups might use protest as a means of redress. This becomes of particular importance when institutional means of upholding the rule of law are deemed to be failing. Crucially, however, due to the unpredictable nature of political protest movements, it is vital that the government be seen to uphold the rule of law consistently in the first instance, to avoid the risk of widespread public disorder.

Introduction

8. We are a group of public law scholars from the Centre of Law and Social Justice at the University of Leeds.[1] We have published on the theory and practice of judicial review in constitutional democracies,[2] on the operationalisation of human rights (territorially and extra-territorially),[3] on the moral acceptability of protest (even ‘violent’ one) in democratic states,[4] and on the role of legislation during emergencies.[5]
9. We submit this evidence as a group, as we share the belief in the essential role that the rule of law plays in a healthy constitutional democracy, as well as the concern for the current state of the rule of law both at the national and international level. In this submission, we use our respective expertise to highlight some features of the rule of law which we think deserve particular attention as part of this inquiry.
10. As such, we think it might be expedient for the Committee to know who has authored each answer: Dr Sandro has written the answers to Q1, Q1.i, and QQ3-5 (in relation to ouster clauses); Dr Wallace has written the answer to QQ3-5 (in relation to Henry VIII powers and Illegal Migration Act case study); Dr Greenwood-Reeves has written the answer to Q7.i; and Rebecca Moosavian has written the answer to Q7.

What are the components of the rule of law? (Q1)

11. The rule of law is a legal and political ideal of universal appeal. While it is known by a different name in civil law jurisdictions (‘Stato di Diritto’; ‘État de droit’; ‘Rechtsstaat’; ‘Estado de Derecho’; etc),[6] the basic principle remains the same: that everyone in the state, including the government, should be under the law.
12. While reasonable people will disagree as to what exactly the principle requires, there is established consensus about what it prohibits: arbitrary, or whimsical, government. It is often said, to capture this, that the rule of law requires government by law, not by people.[7] But this is elliptical at best, and misleading at worst. For government is always by people.[8] Instead, what the rule of law requires is that

people in positions of authority should exercise their power within a constraining framework of well-established public norms rather than in an arbitrary, ad hoc, or purely discretionary manner on the basis of their own preferences or ideology.[9]

13. There is a famous divide in the academic literature between formal/procedural (or ‘thin’) and substantive (or ‘thick’) conceptions of the rule of law.[10] Advocates of the former argue that the rule of law is neutral as to the content of laws and only speaks to their manner of production and application.[11] Those instead who subscribe to substantive conceptions argue that the rule of law necessarily demands that laws are also directed towards securing other crucial values like democracy and human rights.[12]
14. The debate is partly misguided. For the rule of law, already in its formal and procedural conception, establishes substantive constraints as to the content that laws should have.[13] For example, legislation should contain general rules, as opposed to individual commands (i.e. targeting specific individuals). Legislation should be prospective – it should regulate future actions, not what has already happened. Legislation should be clearly formulated – allowing people to readily identify what the law prohibits, permits, or demands – and should not be contradictory (simultaneously requiring and prohibiting a certain action), as otherwise enforcement would be utterly discretionary. Finally, legislation should not demand of people what is impossible. These are all demands about the contents of laws, as opposed to the process through which they are promulgated.
15. Whether the ideal of the rule of law also includes democracy and human rights is a matter of contention, where reasonable people disagree. We ourselves do. While there are strong theoretical reasons to avoid conflating the democratic principle and respect for human rights with the rule of law,[14] some of the most authoritative international organizations and rule of law global indexes include them in the definition. Given our own internal disagreement on this point, we do not wish to adjudicate upon it.
16. What is worth stressing is that, even on a thin conception of the rule of law, at least one fundamental human right is necessarily implied by the ideal: the right of access to justice. From this perspective, then, the rule of law does not only demand that there must be congruence between the law as enacted and the law as it is applied by officials, but also that there must be a third and independent judge capable of adjudicating on the disputes between the government and individuals, and between individuals themselves.[15]
17. This is a crucial point, which is often neglected: the rule of law is both a normative and institutional ideal.[16] It requires not just that laws are made according to a certain procedure, in a certain form, and with certain contents (but not others); but, also, that a certain institutional framework is realised. This framework, at a minimum, requires that a body of law professionals (selected on the basis of their competence and skills, and not their political beliefs) can adjudicate on whether the law has been properly applied by the government, as well as by anyone else. To this end, they must be functionally and organically independent from the other institutions of the state.[17] In this respect, even the thinnest conception of the rule of law implies the instantiation of the separation of powers.
18. Properly understood, the rule of law is not an ‘all or nothing’ matter. No state, however democratic and observant of legal principles, always fully complies with the demands of the rule of law. Retroactive laws might, exceptionally, be enacted, as there might policy reasons which trump on that specific occasion rule of law considerations. This is a context-sensitive evaluation: for the demands of the rule of law apply more strictly in some areas of the law (criminal law, for instance) than in others.

Why is the rule of law an important tenet of the UK constitution? (Q1.i)

19. The rule of law is a fundamental tenet of the UK constitutional arrangements. While AV Dicey is most famously associated with the ‘orthodox’ theory of parliamentary sovereignty, his reflections on the rule of law are equally important. Dicey is clear in fact that the two principles cannot (and should not) be separated. For while parliamentary sovereignty establishes the legislative supremacy of the UK Parliament in relation to the Crown, the rule of law tempers this supremacy, by requiring courts to interpret and apply the legislation made by Parliament.
20. We see this more clearly at work in all those types of common law interpretative presumptions through which courts depart from the clear linguistic meaning of legislative provisions. This is not a recent, post-war development in administrative law: it is a core common law interpretive technique, established since time immemorial.[18] Its operationalisation can be easily found in law reports, most clearly in the non-literal interpretation of ouster (or privative) clauses and in the courts’ use of the so-called principle of legality.
21. The rule of law matters even more, if possible, from a broader historical and political perspective. This is due to the institutionalisation of the basic principle of access to justice, since at least the Magna Carta of 1215. By entrenching the idea that no one, not even the Crown, is above the law, the ideal has significantly contributed to thwarting historical attempts to establish despotic rule in the UK.
22. In this sense, it can be argued that the rule of law has for hundreds of years performed a similar (albeit limited) function to that which entrenched codified constitutions have played in many countries around the world, especially from the second half of the 20th century onwards. This is why the United Kingdom has famously been considered as the ‘motherland’ of modern constitutionalism.[19] At the same time, this historical prominence should not leave us complacent, because the rule of law obtains only and insofar as the social and political culture that underpins it is healthy.

What threatens the effective operation of the rule of law in the UK? (QQ 3-5)

23. Without a doubt, the biggest single threat to the operation of the rule of law in the UK is the inability of ‘millions’ to access legal aid, as research by the Law Society of England and Wales shows. As they argue, ‘[t]his is a result of stringent and successive government cuts to legal aid alongside stagnant fees paid for expert advice provided by the remaining charities and small firms’. Nothing needs to be added. In this submission, we want to focus on something else.
24. Parliament must generally only pass legislation which conforms to the demands of the rule of law, at the very least in the ‘thin’ sense illustrated in the answer to Q1 above. As we said before, on exceptional occasions other policy considerations might warrant a departure from the specific demands of the rule of law, but this is a highly context-sensitive assessment. For example, the bar for departure in criminal law matters will always be the highest, both in relative and absolute terms.
25. In recent years, two controversial legislative techniques have become more frequently used in Acts of Parliament. These are so-called Henry VIII powers – clauses in a bill that enable ministers to amend or repeal provisions in an Act of Parliament using secondary legislation – and ouster or privative clauses: provisions that exclude judicial review of a certain class of decisions. Both clauses are constitutionally ‘anomalous’ and that their widespread use represents a significant threat to the rule of law.

Henry VIII powers

26. Parliament needs to drastically reduce the number of Henry VIII powers it grants the executive in legislation. While Henry VIII powers may be expedient at times, the powers are constitutionally anomalous. Henry VIII powers violate the rule of law because they invert the hierarchy of law within the state. As a basic rule of hierarchy, subordinate legislation should not be used to amend primary legislation. Primary legislation carries the authority of parliamentary sovereignty, subordinate legislation does not. Henry VIII powers use an inferior form of law to change a superior form of law.
27. As Henry VIII powers marginalise the traditional law making and scrutinising power of the legislature, they should only be used in exceptional circumstances. In practice though, as the House of Lords Constitution Committee noted, Henry VIII powers are “an increasingly common feature of legislation”.[20]
28. While the creation of these powers may indicate a desire for practical efficiency over concerns about scrutiny and accountability, a recent case, R. (National Council for Civil Liberties) v Secretary of State for the Home Department [2024] EWHC 1181 (Admin), showed how misusing these delegated powers can cause serious problems.
29. The previous government passed a range of new legislation governing public order, notably the Police Crime Sentencing and Courts Act 2022, which allowed the police to intervene in a protest to prevent "serious disruption to the life of the community". Section 73 allowed the Home Secretary to change the definition of "serious disruption" by means of secondary legislation.
30. The government later passed more legislation creating new public order offences – the Public Order Act 2023. In these offences, the government tried to define “serious disruption” to mean “more than minor”, but the House of Lords rejected this definition as being too broad and allowing the police to intervene too easily to stop protests. As a result, the definition was excluded from the enacted legislation. However, Chris Philp, a junior minister in the Home Office, used the power in the 2022 Act to introduce secondary legislation, the Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023, which defined serious disruption for the purposes of the Act as “more than minor”.
31. The House of Lords Secondary Legislation Scrutiny Committee noted this was “the first time a Government has sought to make changes to the law by making those changes through secondary legislation even though those same changes had been rejected by Parliament when introduced a short while before in primary legislation”.[21] The government was trying to sneak something through the back door after the Lords had slammed the front one.
32. Parliament nonetheless voted for the regulations to come into force in June 2023. They passed through the House of Commons without issue and were also passed by the House of Lords. It led to a bizarre situation where the House of Lords called on the government to withdraw the regulations as the House of Lords itself was accepting them.[22]
33. In R. (National Council for Civil Liberties) v Secretary of State for the Home Department, the High Court ruled that the regulations were ultra vires – meaning that the Home Secretary did not have the legal authority to create them. The court determined that the minister couldn’t make a regulation like this, which had no linguistic connection to the phrase “serious disruption”. As a matter of ordinary and natural language "more than minor" was not within the scope of the word "serious". The Act was supposed to set the threshold for police intervention at a high level but, by defining serious disruption in this way, the regulations would have had the opposite effect, allowing the police to intervene much more easily. The court observed that Henry VIII powers like this should only be used to clarify or give examples of the power but not change the power itself.
34. The regulations were quashed by the High Court, but an appeal is currently pending before the Court of Appeal. As such, the exact limits of the executive’s power to defy parliamentary will in this way remain to be determined.
35. This case crystallises the risk of using Henry VIII powers to change the law against the will of parliament, to avoid legislative scrutiny and introduce rights-restricting measures. This is not an abstract or philosophical concern - it is genuine, serious and very real. The judiciary was able to intervene in this instance to stop it, but it could easily happen again and the government may yet be successful in their appeal.

Ouster or privative clauses

36. In relation to legislative provisions which exclude judicial review, a series of famous judicial decisions, whose beginning is routinely identified with the House of Lords decision in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, questioned their compatibility with the rule of law. On any understanding, the rule of law requires that people have the ability to access courts to determine their rights and resolve disputes over the meaning of law. In this respect, the link between privative clauses and the rule of law was made as explicit as possible by Lord Carnwath (with whom Lady Hale and Lord Kerr agreed) in R (on the application of Privacy International) (Appellant) v Investigatory Powers Tribunal and others (Respondents) [2019] UKSC 22. The Independent Review of Administrative Law, chaired by Lord Faulks KC, appears to have concluded that ouster clauses are permissible in our system, albeit it defined them as ‘exceptional’ and cautioned against their use.[23]
37. Still, not everyone in the literature agrees that ouster clauses are constitutionally anomalous and represent a threat to the rule of law.[24] It has been suggested that, especially when they oust the supervisory jurisdiction of the High Court in relation to the decision of a body that is already judicial like the Upper Tribunal, they are straightforwardly unproblematic. This is because the rule of law includes the demand that courts must apply the legislation made by Parliament. Thus, if Parliament wants to exclude judicial review, and says so clearly enough in the text of a statute,[25] courts are bound to give effect to that legislation.[26]
38. The clearest proof to date that ouster clauses are not constitutionally problematic would be in a recent series of judicial decisions upholding the privative clause contained in contained in s11 of the Tribunals, Courts and Enforcement Act 2007 (TCEA2007), as introduced by s2 of the Judicial Review and Courts Act 2022 (JRCA2022). The clause purported to overturn the Supreme Court’s decision in R (Cart) v Upper Tribunal [2011] UKSC 28 which permitted judicial review of appeals permission decisions by the Upper Tribunal where the second-tier appeals criteria were met.[27]
39. According to High Court, in the first of this series of decisions upholding the ouster[28] Parliament has spoken with the necessary clarity and so the courts – precisely because of the rule of law – are bound to give effect to the ‘intention’ of Parliament, even though this means that, going forward, some errors of law made by the Upper Tribunal as part of its jurisdiction might not be corrected. According to some, these decisions would be confirmation that the orthodox theory of parliamentary sovereignty is still the only fundamental principle of the UK constitutional arrangements, and that the rule of law must yield, so to speak, if Parliament says so.[29]
40. This prima facie reading of these recent cases, however, is unconvincing. If the issue was merely whether Parliament has spoken with the necessary ‘clarity’, why would the High Court in the Oceana decision, the Court of Appeal in LA (Albania) – as well as the Supreme Court in the refusal of permission to appeal in LA (Albania) –[30] underscore that the ouster in the TCEA2007 is in relation to a judicial body and it is not a total ouster?[31] And why would this level of clarity finally be appropriate, as opposed to that in previous ousters (think about Anisminic or Privacy International)?[32]
41. The more correct understanding as to why courts can give effect to the privative clause in question has been offered by Fordham J in the judgment in R (Karim) v Upper Tribunal [2024] EWHC 1368 (Admin).[33] Here, it is explained that courts can give effect to the ouster in the TCEA2007 not because the rule of law requires them always to give effect to the intention of Parliament – that is manifestly not true –[34] but rather because there is no violation of the ‘core irreducible minimum’ of the rule of law itself.[35] In other words, the fact that the ouster is a) in relation to a judicial body like the Upper Tribunal and b) that it does not completely oust the jurisdiction of the High Court means that the core principle of the rule of law has not been violated by Parliament.
42. This has two very important consequences. First, it is not true that the decision in Oceana and subsequent cases reverses the trend started the House of Lords in the (in)famous decision in Anisminic. This view is not just too coarse – as it eschews the specific context in which courts have given effect to the ouster in the TCEA2007 – but also historically wanting, for there is a wealth of cases before Anisminic in which courts have refused to give effect to privative clauses in legislation.[36] Second, the decisions upholding the ouster in the TCEA2007 do not indicate how courts will give effect (if at all) to privative clauses against decision by the executive or executive bodies. As Fordham J puts in R (Karim), the analysis as to whether courts should give effect to individual privative clauses ‘will always be highly contextual’.[37] If anything, any ouster in relation to executive decisions – and particularly where fundamental rights are at stake – will be seen by default as constitutionally suspicious (and correctly so).

Is there a role for the public in upholding the rule of law? (Q7)

43. The rule of law is not simply the concern of lawyers and cannot solely rely on the (variable) commitment of political and legal actors for its ongoing efficacy.  As stated above, the rule of law is at least partly a political ideal.  Therefore - like other fundamental communal values, such as democracy - its future operation ultimately relies on a shared consensus that the rule of law matters.
44. Fostering such consensus is very difficult when politics is polarised, and multiple versions of the rule of law abound.  Yet the core essence of the rule of law in its various guises - that no-one, whatever their station, is above the law, and that everyone is equally subject to the law – holds enduring broad appeal across the UK populace and our political culture.  This principle is woven throughout our constitutional history, running (e.g). from the Glorious Revolution to widespread public censure of the Johnson government’s parties held in breach of Covid-era restrictions.  Even taken in this narrow sense, the rule of law contributes to the crucial bi-partisan ground-rules upon which politics – even fractious politics – can be conducted. 
45. Despite the rule of law’s manifest limitations, it requires a minimum benchmark conduct of leaders and public officers that has arguably never been more pertinent.  Current developments in the United States grimly demonstrate the public’s vital role in maintaining the rule of law. The re-election of a presidential candidate with an array of well-documented law-breaking activities to his name,[46] demonstrates that the importance of this core principle of legal accountability for all cannot be assumed.  The stage has thus been set for an emboldened leader to engage in yet more audacious law-breaking with impunity. 
46. Though the reasons behind Trump’s rise to dominance are complex and beyond the scope of this answer, deeply partisan media and misinformation on social media have undoubtedly been contributing factors. Despite key differences in our respective legal and political systems, it would be complacent to assume that the UK is somehow immune from the developments that are eroding the rule of law in the United States. 

Is there a greater role for education, the media and civic society in promoting the rule of law? (Q7.i)

47. Outside of formal state institutions, civic society can provide support in promoting the rule of law, through education, awareness-raising, and capacity-building. Additionally, social movements and activist groups might use protest as a means of redress. This becomes of particular importance when institutional means of upholding the rule of law are deemed to be failing. Crucially, however, due to the unpredictable nature of political protest movements, it is vital that the government be seen to uphold the rule of law consistently in the first instance, to avoid the risk of widespread public disorder.
48. Legal and constitutional philosophers have long understood the democratic role of social movements and protest. William Connolly framed the role of protest within what he called an “agonistic” model of liberal democracy.[47] In this view, democracy involves lots of different social groups vying for their message to be heard loudest. In this context, protest is considered an important site for the free exchange of political ideas. It is of particular use to marginalised or minority voices, who might otherwise find themselves consistently out-voted in institutionalised processes, or sidelined in mainstream media. Furthermore, protests against the government’s failures to uphold certain constitutional principles - including democracy, the rule of law, or justice - are part of a “democratic dialogue.”[48] This communication between protest groups, the state, and a wider national (and indeed international) audience, encourages greater accountability by governments.
49. This is especially important where institutions designed to uphold the law, such as the police, are perceived to be undermining it. In response to police violence against black citizens, the Black Lives Matter (BLM) movement demonstrated a recent, vivid example of this. State failure to uphold the law, protect the rights of citizens, and ensure fair and effective punishment of violent criminals (including its own police officers), can lead to widespread social activism and indeed protest. Christopher Lebron, in The Making of Black Lives Matter, shows how within the protests and the rhetoric of the BLM movement, appeals were made to the state’s own claims to moral principles of liberty and equality, in contrast to government failure to meet these principles.[49] In light of police killings of black people, and the failure of justice systems to hold those officers accountable or to prevent future deaths, the BLM protests highlighted the hypocrisy of a government that claims to uphold the rule of law, whilst overseeing systematic discrimination and impunity for racist state violence. Lebron put it succinctly by saying that the state “cannot claim for itself the title of a liberal, well-ordered democracy so long as blacks are so often killed with impunity by private citizens and state agents.”[50]
50. We in the United Kingdom should heed this closely. As multiple independent reviews of the Metropolitan Police have made clear, over many decades, racialised policing is not a uniquely American phenomenon.[51] Indeed the 2020 BLM protests in the UK showed a widespread public awareness of racist policing in our own country.[52]
51. The value of protest to promote the rule of law has been seen in other circumstances, including protests against failures at the highest levels of government. This was seen in public reactions to former prime minister Boris Johnson’s unlawful prorogation of parliament in 2019 - shutting down parliamentary business for five weeks, without explanation. Protesters across the country, but particularly in the capital, took to the streets to demonstrate their disapproval.[53] In London, protesters in Westminster chanted “Whose democracy? Our democracy,” and “You shut down our parliament, we shut down the streets.”[54] The Supreme Court would later unanimously find that the prorogation was unlawful.[55] The rule of law, if it means anything, must apply to all - to police officers and prime ministers alike. If it appears that institutional processes are being abused, and perhaps therefore are not to be trusted, then protest takes on a particular importance as a means of expressing outrage and seeking redress.
52. Political protest, in this way, may serve to uphold the rule of law - even in cases where the protest itself breaches the law through, for example, acts of civil disobedience.[56] As it is generally understood, civil disobedience involves conscientious, public, nonviolent disobedience to law. Famous examples include the acts of lawbreaking, against Jim Crow segregationist rules, by Civil Rights activists in the mid-twentieth century. While this necessarily involves breaking certain laws, the rule of law is not itself undermined where disobedient individuals accept due punishment for their activism - or demonstrate what is referred to as “fidelity to law.”[57] Under this standard conception of it, in “mostly just” liberal democratic states, civil disobedience is understood as a morally justifiable response to persistent injustices, where institutional means of redress have consistently failed. This can include failures to uphold the rule of law.
53. It is clear however that any government would wish to avoid creating a situation where popular protest or social activist movements feel compelled to act as guardians of the rule of law. First, not all activists are motivated by a sincere desire to uphold the rule of law, nor are they informed of its demands.[58] The far-right Stockport protests, which entailed a great deal of violence, are a troubling recent example of this.[59] Second, activist groups may be misinformed as to the material facts of a purported affront to the rule of law. In the US, the January 6th storming of the US Capitol proved to be an alarming example of this.[60] Insurrectionists acted with violent intentions precisely because they believed - sincerely, but mistakenly - that the rule of law, and democracy in America, were being threatened by a shadowy, deep-state conspiracy to undermine the 2020 elections, and that their storming of the Capitol building was therefore justified.[61] Third, as both these examples demonstrate, the response of protest groups may be violent, and may indeed pose a threat to other fundamental principles such as democracy, justice, and liberty.
54. This in itself is perhaps the most important consideration, when reflecting upon the relationship between protest movements, civil society, and the rule of law. When the rule of law is seen to have been flouted, protests are likely to follow. Should those protests arise, one cannot predict how violent they may become. It is vital that the government be seen consistently to be upholding the virtues of the rule of law, if it is to avoid finding out.

Recommendations

Legal aid – Access to justice

55. Our recommendation is that the government urgently builds on the findings of the Review of Civil Legal Aid and significantly increases expenditure for legal aid, including raising fees for service providers.

Henry VII powers

56. Firstly, Henry VIII powers should return to being an exceptional measure. Where they are proposed, the government should be required to give a full and clear explanation and justification for their use and if one is not forthcoming, they should be rejected by Parliament.
57. Secondly, Henry VIII powers are frequently used in lieu of concrete policy decisions, they are a blank cheque to the executive from the legislature. When such powers are requested, the legislature should demand that the executive provide more detail e.g. in the form of draft secondary legislation accompanying the Bill, before approving their creation. Parliament is often unable to scrutinise the secondary legislation that follows on the heels of Bills presented to them and is therefore prevented from doing their job of holding the government to account and scrutinising legislation.
58. Finally, the House of Lords should not feel it is constitutionally improper to defy the government in circumstances such as those with the Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023. What the government did in this instance was aptly described as “an audacious and unprecedented defiance of the will of Parliament”.[62] While it is, rightly, exceedingly rare for the House of Lords to withhold agreement to secondary legislation, in the face of such a brazen and egregious act, the House of Lords should have acted to stop it. Oversight of secondary legislation is already drastically reduced compared to primary legislation, but there is still scope for some oversight, most notably where the procedure requires that the secondary legislation be made affirmative.

Ouster or privative clauses

59. Ouster clauses must be avoided at all costs in legislation, and especially in relation to executive bodies. They are a direct affront to the rule of law and the principle of access to justice. As Lady Hale has already suggested in her oral evidence to the Committee,[63] even if a true emergency occurs, exceptional legislation making something lawful that otherwise would not be is constitutionally preferable to general ouster of the supervisory jurisdiction of the High Court (and appellate courts).

Rule of law scrutiny of legislation

60. The Illegal Migration Act violated several fundamental parts of the rule of law - the principle of non-retroactivity, prompted arbitrary treatment and application of the law, violations of international law, fundamental rights and limited access to the courts. The fact that a piece of legislation violating so many aspects of the rule of law could be passed by Parliament indicates beyond doubt that Parliament needs to scrutinise legislation for compliance with the rule of law more effectively.

Role for the public in upholding the rule of law

61. As well as a range of firmer institutional safeguards (outlined in the answers above), four measures are necessary to support a wider political culture in which the rule of law (and other fundamental values) matter:

a)    Politicians and public officials must lead by example and act within national and international legal frameworks.  This entails resisting political opportunism and having the integrity to hold foundational ideals over and above convenient scape-goating, short-term party or individual career interests.

b)    Investment in education at all levels to ensure that citizens have ethical awareness, media literacy and the critical faculties to appraise claims, gauge credibility and sources.  These skills are essential to democratic debate, participation and human flourishing.[64]

c)     Support for and maintenance of essential public service broadcasting, particularly news reporting.

d)    More effective regulation of disinformation and misinformation online.[65]

21 April 2025