Bren Albiston, Solicitor, and Stephen Hockman KC – Written Evidence (ROL0052)

1. Introduction

1.1 Certainty is the foundational element of the rule of law. Certainty as to what the law is, that it can be accessed, that it will be applied consistently and independently, and that state power will be exercised in a predictable and lawful way.

1.2 Without that certainty, individuals, businesses and institutions cannot securely go about their business, invest or plan for the future. In short they lack a solid foundation on which to act.

1.3 There are, in our view, two components to this: legal certainty and constitutional certainty. This is particularly so in the British context, where not all constitutional matters are necessarily legal in nature, but may instead be cultural or political. Both concepts are, to a degree, distinct but mutually reinforcing.

1.4 In our view, both legal and constitutional certainty have been eroded. Further, the British state, and the constitution generally, lack the necessary resilience, protections, checks and balances to withstand, with confidence, the challenges which face the rule of law, and democratic government.

1.5 Whether it is the attacks of populists against individual rights and an independent judiciary, or the disrespect for the devolution settlement, or the basic lack of access to justice, all of these erode confidence and undermine the rule of law.

1.6 In this paper, we discuss these issues, however briefly, in response to some, but not all, of the questions raised by the Committee in its consultation, together with how we might go about addressing those issues. We shall be happy to enlarge orally on our arguments if that would be helpful.

2. Legal and Constitutional Certainty

Legal Certainty

2.1 For these purposes, we have adopted the description given by the UCL Constitution Unit in its brief, but insightful “explainer” on the rule of law, which states as follows:

“The principle of legality means that the state should act only within its powers, and exists to prevent states from abusing their authority. Laws should be made according to established rules and processes, and ministers and agents of the state must not exceed their powers.[…].

Legal certainty requires that the law must be clear and publicly accessible so that citizens can easily find out about their rights and obligations.”[1]

2.2 To this we would add that access to justice, together with its fair and equal application by an independent judiciary, are necessary components of legal certainty and, of course, the functioning of a democratic state.

Constitutional Certainty

2.3 Constitutional and legal certainty are linked and mutually reinforcing concepts. However, they are distinct from one another.

2.4 Constitutional certainty means, for these purposes, a clear delineation of powers and responsibilities between constitutional actors and a respect for that delineation, together with the predictable use of the powers of state actors. 

3. The Rule of Law within Society

3.1 A conception of the rule of law which focuses only on the law itself is in danger of appearing tautological. If one treats the rule of law as amounting to no more than a system of rules, then that amounts to nothing more than the law itself. Yet it is surely necessary to recognise that the rule of law can have a much wider and deeper meaning.

3.2 This wider and deeper meaning involves recognising that the rules constituting our legal system exist against the background of our social order, and should be embedded within that social order. In other words, society as a whole should be aware of and understand not just the law or the rule of law, but the role of law, its value and purposes. This broader conception of the rule of law enables one to see that the rule of law is just as important as the law itself, and goes to engendering legal certainty by enabling citizens to understand the law, their rights and how our system of laws function.

3.3 It is worth considering the various ways in which the rule of law can be embedded within the community, and how the law can be better and more fully embedded in the community which it exists to serve.

3.4 The starting point is, or should be, the importance of teaching the rule of law as part of universal education. This was undoubtedly the thinking underlying the recent letter in The Times from Lord Blunkett, the former Labour Secretary of State for Work and Pensions and Home Secretary:

“The central issue that the curriculum and the assessment review, and therefore the Department of Education, must address is the widespread political illiteracy in the UK. Reinforcing and substantially improving the teaching of citizenship is a prerequisite to encouraging young people not only to vote but to be able to handle the divisive nature of global politics, the danger arising from propaganda on social media and the distinguishing of truth from downright lies”.[2]

Not a bad purposive definition of the rule of law.

3.5 Moving to adult society, there was another very evocative set of comments in a Financial Times piece by John Coates, Professor of Law and Economics at Harvard Law School:

“Law enables democracies and protects political freedom but it is also critical to investment and finance. The benefits of a strong and independent judiciary and legal profession are clear. They include protection of property rights, enforcement of contracts and more vigorous market competition. Without reliable law and the ability of business to defend their rights, investment shrivels. While details of reliable legal systems vary, sine qua nons include prior notice about what the law is, independent judges and autonomous lawyers who can advise and advocate for the public”.[3]

3.6 Then at a political and parliamentary level, one can take note of the recommendations of the Review of the UK Constitution, dated September 2023, by the Institute for Government and the Bennett Institute for Public Policy.[4] In addition to recommending a new parliamentary committee on the Constitution, this Review suggested that there should be a new category of constitutional acts, and above all that public engagement should be integrated into processes of constitutional change, to enhance the legitimacy of decision making and provide a level of political entrenchment.

4. Access to Justice

4.1 In the context of “autonomous lawyers who can advise and advocate for the public”, it is necessary to stress the importance of what for many years has been identified as the unmet need for legal services.

4.2 This problem was eloquently illustrated during the King’s Speech debate in Parliament last year by Lord Bach, who pointed out that the total number of legal aid cases to help people get the early advice they need and to which they are entitled fell from 1 million people in 2009/2010 to just 130,000 people in 2021/2022.

4.3 Formerly, there was an institution known as the Community Legal Service which operated locally as well as nationally, which aimed to identify gaps in legal service provision, to improve access to legal aid and to ensure collaboration between legal aid providers, local authorities and community organisations. Moreover, in earlier times when legal aid for civil cases was more widely available, members of the public were protected in respect of the risk of adverse costs, which now applies only in a very limited class of cases.

4.4 Very few private citizens can afford to take the risk of going to law. This situation clearly and obviously undermines legal certainty, as we have conceived it. If someone is deprived of the protection of the law, simply because of their lack of means, there can be no legal certainty, as even if their rights are abridged, or a contract breached, or they suffer some other legal injury, the paucity of legal aid makes the protection of the law remote and unpredictable.

5. Parliamentary Sovereignty and the Rule of Law

5.1 The British Parliament is said to be “sovereign”, that is, it enjoys “legislative supremacy”, i.e. it is free to make and unmake any law without legal restraint. The dangers posed by parliamentary sovereignty to the rule of law are obvious. It is no longer enough to say that the power of Parliament would not be used to undermine the rule of law or democratic government, when one considers some of  the actions by the last government, which legislated to breach international law[5], sought to curb judicial review[6], and seriously flirted with significantly changing the human rights regime in this country[7], as well as legislating to change devolved competence and legislating in areas of devolved competence without consent[8].

5.2 All these measures damaged legal and constitutional certainty and demonstrated that the use of Parliament’s immense legal power is only constrained to the extent that a majority of MPs are willing not to use it. We cannot count on that forbearance in the future, particularly in circumstances where one or a combination of populist parties form a government.

5.3 Therefore, Parliament and government should take steps to strengthen the constitutional protections we have, and to forge new ones, in order to protect the rule of law, through ensuring, insofar as possible, legal and constitutional certainty. These steps ought to include, amongst other things, entrenching the independence  the judiciary, Convention rights and the Sewel Convention.

6. The use of Skeleton and Enabling Legislation

6.1 It is now broadly recognised that there has been an overuse and abuse of secondary and enabling legislation. Particular concern has arisen in respect of so called ‘skeleton’ legislation, which leaves ministers to fill in the gaps through the enactment of secondary legislation, as well as ‘Henry VIII’ clauses, which is a form of delegated legislation but which takes effect as if it were primary legislation.

6.2 Clearly, the improper use of such legislative devices creates legal and constitutional uncertainty, not least because Parliament is deprived of the opportunity to examine this legislation in the same detail as for ordinary primary legislation, nor is it clear how these wide ranging powers will be used. Through them the executive subordinates Parliament’s legislative function to itself, thereby creating “constitutional uncertainty”, what John Laws may have called, upsetting the “constitutional balance”.[9]

6.3 But more practically, the quality of this type of legislation is, in many cases, inferior to that subject to considered debate, scrutiny and amendment by an interested Parliament. This then leads to unnecessary legal uncertainty as those who must work under the law are left in the invidious position of doing so, despite sometimes clear and obvious issues with the law. This in turn can lead to further friction between the executive and the judiciary, as poorly drafted and considered legislation, which might be of particular political significance, must be examined, read down or even disapplied by the courts. So, in an effort to avoid Parliamentary scrutiny, the government instead runs into the arms of the courts, setting the scene for a narrative in which the government can blame unelected judges for frustrating the will of an elected government.

6.4 Here we can see how constitutional uncertainty can lead to legal uncertainty and back to constitutional uncertainty. In our view therefore, the use of this kind of device should be effectively regulated and limited.

7. Good Business

7.1 The rule of law is good for business. As quoted above at paragraph 3.5, Professor John Coates vividly makes the point that without the rule of law the economy suffers. Indeed, the point was made with clarity by Lord Mansfield in Vellejo v Wheeler in 1774[10], where he said:

“In all mercantile transactions the great object should be certainty: and therefore, it is of more consequence that a rule should be certain, than whether this rule is established one way or the other. Because speculators then know what ground to go upon.”

7.2 This was a point alighted upon in Lord Bingham’s brief but powerful book, The Rule of Law,[11] where he said “no one would choose to do business, perhaps involving large sums of money, in a country where the parties’ rights and obligations were vague or undecided”, before going on to quote, in support, an article from the Economist, which stated:

“The rule of law is usually thought of as a political or legal matter…But in the past ten years the rule of law has become important in economics too… The rule of law is held to be not only a good in itself…but also as a cause of other good things, notably growth.”[12]

7.3 Legal and constitutional certainty are a necessary foundation for businesses to invest and grow, the “ground to go upon” as Lord Mansfield put it. But business in the UK has had to contend with significant legal uncertainty over the period of the last government, and particularly since the UK’s withdrawal from the EU, which is compounded by the immensely complicated legal landscape into which all businesses must step, often made worse by ill-conceived and ill-designed legislative initiatives.

7.4 Beyond this, a well-functioning legal system, which is bounded by legal certainty, is good business. The UK’s legal sector has a value in excess of £43bn in 2022, second only to the United States globally.[13]

7.5 Companies and individuals choose to litigate in the UK and choose to conduct their business under the laws of England and Wales because they trust that they will be treated fairly, and they will get a fair hearing. This is an enormous competitive advantage that the UK enjoys, and in times of ever greater global uncertainty, it is an advantage that we must jealously guard.

8. Warnings from Abroad

8.1 The importance of adherence to the rule of law can, of course, be easily illustrated by reference to events overseas, both historical and contemporaneous.

8.2 History contains numerous examples of societies in which, in various ways, the rule of law has been compromised. Without going any further back than the 20th century, examples abound of jurisdictions in which the rule of law was undermined. Perhaps the best illustration, and the most extreme, was in Nazi Germany, which in the 1930s evolved into a dictatorship in which the rule of law was practically non-existent. Of considerable interest is the process by which these events unfolded. In his Birkenhead lecture, delivered at Gray’s Inn in 2018, Lord Etherton (formerly Sir Terence Etherton, the Master of the Rolls) explained in moving detail the gradual deterioration of the justice system under Nazism, and the replacement of well qualified and well-motivated judges by others willing to submit to the dictator’s will. Many other examples could be given from 20th century history, and likewise from jurisdictions from around the world today.

8.3 Perhaps of greater relevance for this Inquiry, however, are examples of jurisdictions in which, nominally at least, the rule of law is still respected, but in which there are warning signs of it being potentially undermined. Here, it is sad to say that the most prominent contemporary example is that of the United States of America, in which astounding political developments have occurred since the current administration took office. These developments were summarised in a recent article in The Times by Dominic Sandbrook, from which two quotations will suffice. As regards the independence of the judiciary, Sandbrook cites the Republican House Speaker Mike Johnson stating as follows:

“We can eliminate an entire district court, we have the power of funding over the court, desperate times call for desperate measures, and Congress is going to act.”

8.4 Secondly, Sandbrook quotes Vanessa Williamson, a senior fellow in government studies at the Brookings Institution, describing what she calls “executive aggrandisement”.

“Even a legitimately elected leader can undermine democracy by consolidating power, and that can happen in a couple of different ways. One way is when the executive expands power beyond the checks and balances that are typically provided by the legislature and the judicial system. For example, the power to tax and to spend is something that is a clear power that is invested in our legislative branch, and so things like the executive branch deciding that it can unilaterally stop payments or close agencies that were instituted by law is a massive shift in the power of the presidency.”

8.5 As also stated by John Coates in his article, judges have been threatened with impeachment by the president and with violence by his followers, and the president has personally signed orders taking away rights from half a dozen major law firms, that worked in the past for his political rivals.

8.6 Whilst it may be said that it is hard to imagine any such developments occurring in this jurisdiction, one should not overlook the conclusion of the UK Supreme Court in the second instalment of the Miller litigation, in which it was held that (when Brexit was subject to final parliamentary approval) the then prime minister had unlawfully prorogued parliament.

9. International Rule of Law

9.1 We should add some comments on public international law, and on the desirability of compliance with that separate set of rules which are binding as between nation states. In 2022, this Committee carried out an inquiry into the role of the Lord Chancellor and the Law Officers, and on 6th July in that year heard from, among others, the former Attorney General, Dominic Grieve KC. It is worth noting a passage from his evidence given to the Committee on which explains with great clarity the way in which, and the reasons for which, the rule of law applies at an international level.

9.2 To summarise the points made by Mr Grieve, it is the Sovereign who is bound by the treaties into which the United Kingdom enters or has entered, and his ministers who have a duty to observe them, as servants of the Crown, the signatory to those treaties. They are duty bound not to undermine those treaties, and should abide by the decisions of the tribunals which adjudicate upon disagreements arising out of those treaties. 

22 April 2025