The Law Society of England and Wales – Written Evidence (ROL0066)

Introduction

1. The Law Society of England and Wales is the independent professional body that works globally to support and represent 200,000 English and Welsh solicitors, promoting the highest professional standards and the rule of law.

Defining the rule of law  

1)   What are the components of the rule of law?

2. While definitions of the rule of law may vary in emphasis on different constituent elements, they all coalesce around the same central principles. This suggests that, while there is no universally agreed, codified definition, there is nevertheless a broadly shared understanding of what it means and requires at its core. Debates within legal theory on ‘thin’ versus ‘thick’ conceptions of the rule of law are therefore about whether its requirements extend beyond this commonly agreed core.

3. In the UK, a definition which is commonly referred to is that found in the eight principles provided by Lord Bingham[1] which he expanded upon in his book, The Rule of Law.[2] The Law Society supports a ‘thick’ version that aligns with Bingham’s as it conceives of the rule of law as something that is imbued with a fundamental notion of justice and includes requirements for the protection of human rights and adherence to international legal obligations. These elements are important to a full conception of the rule of law as without them it would be possible to legitimise unjust laws and societies, and the breaking of international law by the Government.

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

4. The rule of law is a vital foundational principle underpinning the UK constitution. The purpose of the rule of law is to build and support a well-functioning society, helping to create political, economic and social stability and promote prosperity, justice and equality for all. The rule of law supports democracy by placing appropriate limits on state power and seeking to ensure it is not abused.

ii)   Which factors can be used to assess the health of the rule of law?

5. To maintain the overall health of the rule of law, it is vital both that everyone in public life upholds the rule of law in practice and supports it as a principle. Some indicators could be:

         The functioning of the justice system – including its ability to meet the demands put upon it and provide fair, efficient and accessible justice;

         The relationship between the branches of the state – whether these are appropriately balanced so as to meet the requirements of the rule of law and whether there is mutual respect for the constitutional function and competencies of each branch including, importantly, the independence of the judiciary and the legal professions;

         The role of the Lord Chancellor and Law Officers – whether there is enough clarity on their role in upholding the rule of law, and adequate safeguards to protect their role from undue political pressure;

         The overall quality of legislation – including its clarity, completeness (avoidance of ‘skeleton legislation’ and overreliance on delegated or secondary legislation) and substance (the extent to which it complies with overriding legal and constitutional principles and international obligations);

         The extent to which there is a ‘culture of the rule of law’ – including the extent to which the rule of law is understood, accepted, routinely adhered to, actively promoted and protected from attack.

iii) Is useful assistance to be gained from definitions of the rule of law used by international or supranational organisations, or in the legal systems of other countries?

6. Some external definitions of the rule of law explicitly emphasise the need for a separation of powers and the independence of the judiciary.[3] These principles are captured by the definition and discussion provided by Lord Bingham. We also note that the UK does not have a strict separation of powers. However, maintaining a balance between the branches of state, and especially maintaining an independent judiciary, is an important pre-condition for meeting the requirements of the rule of law. 

7. The factors cited by the World Justice Project’s Rule of Law Index consider wider indicators which are useful when assessing the overall health of the rule of law, such as absence of corruption, open government, order and security and regulatory enforcement.[4]

2)   How well is the rule of law understood by politicians and the public? 

8. The Law Society’s Reframing Justice programme,[5] in partnership with FrameWorks UK, has sought to understand how voters across England and Wales think about the rule of law and access to justice, and how we can communicate better on these issues. Our research found significant gaps in the public’s understanding of the rule of law, and that perceptions are influenced by deeply held mindsets which shape this understanding. We found that in the public view:

         The rule of law is understood predominantly as preventing social chaos – that it is about rules which enable society to function and prevent disorder and confusion.

         The notion of justice is often reduced to crime and punishment – the default understanding is that the rule of law is about police, prisons and crime levels.

         An individual’s ability to access justice is seen as dependent on money – this includes the ability to afford a lawyer, pursue a case in court and receive a quick response from police. There is an overwhelming belief that individual wealth determines how well the justice system functions for you.

         The rule of law is felt to be under threat from other cultures, moral decline and social inequalities – it is perceived as a ‘British’ value and there is an assumption that people from different backgrounds (read as people who are not white, Christian or born in the UK) hold values that are in conflict.

9. These underlying patterns of thinking suggest a very narrow understanding of the rule of law amongst the public, which does not see the wider collective benefits to society or the relevance to everyday life.

10. The Law Society has been continuing to work with FrameWorks UK to develop communications strategies focused on framing rule of law issues in a way that can shift the public narrative and gradually improve understanding.

11. Our further public testing showed the deployment of the five following issues and ideas resulted in positive shifts in thinking:

• Leading with framing the rule of law and access to justice as a public service.
• Focusing on what we can gain by upholding the rule of law.
• Appealing to our shared belief in fairness for the common good.
• Using explanatory metaphor to show the rule of law and access to justice working.
• Naming and explaining connections to our everyday lives.

12. We would be happy to discuss this further with the Committee. Our full research findings and recommendations can be found at https://www.lawsociety.org.uk/campaigns/reframing-justice.

13. We encourage the Committee to consider ways in which the public can actively engage on rule of law issues. This could include participatory practices such as citizens’ assemblies or mini-publics. The intake of first-time MPs, such as in this Parliament, also provides an opportunity for dedicated training on the rule of law, including practical examples to demonstrate its application.

1. Has the rule of law been confused with the rule of lawyers?

14. Lawyers play a crucial role in supporting, upholding and defending the rule of law. They ensure its principles are a practical reality through the vital service they provide to the public.

15. There has been an increasing trend of hostile and inflammatory rhetoric used against lawyers by politicians and the media. The dangers of this were made clear last August when 39 law firms and advice centres were targeted during the period of civil unrest. This is not the only example of the extreme consequences of such rhetoric, with individual lawyers being previously targeted in physical attacks[6] and media attacks resulting in direct security risks.[7]

16. Lawyers do not expect to be immune from scrutiny or criticism. However, they should be free to do their jobs without fear of attack, just as we would expect for doctors or teachers. If lawyers’ safety is not guaranteed, then they cannot fulfil their role in upholding the rule of law and safeguarding the legal interests of the public.

17. The frequent use of anti-lawyer rhetoric can also undermine the public’s trust in the justice system at large. For the rule of law to function effectively the public must have confidence in the ability of the justice system to serve them.

18. Changing the story through strategic communications could assist in remedying this problem and helping to raise the point that the legal profession represents the mechanism that enacts the rule of law. We have mentioned five tools to change public thinking referenced in question 2 above.

The operation of the rule of law

3)   What threatens the effective operation of the rule of law in the UK?

19. Complacency is a huge risk to the effective operation of the rule of law. The UK has a strong and well-deserved reputation for building and upholding the rule of law, but we cannot rely on that alone. It takes active, practical measures to keep the rule of law (and respect for it) alive, and its purpose and benefits for society and the economy must be constantly demonstrated and reaffirmed.

20. Ensuring that justice is accessible and the public can enforce their rights is vital for the effective operation of the rule of law. Underinvestment in the justice system over recent years has seen that accessibility threatened.

21. Legal aid ensures enables the public to defend and enforce their rights. Austerity brought wholesale cuts to legal aid in the form of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) removing legal aid funding for most civil legal issues.

22. Legal aid continues to erode not through legislative cuts but through neglect and lack of investment. The legal aid means test has not been uprated since 2009, resulting in a year on year decrease in the number of people entitled to public funding for advice and representation. Research commissioned by the Law Society demonstrates that only individuals living in deep poverty – 80% below the minimum income standard – would qualify for full legal aid. The Ministry of Justice committed to addressing this problem in 2022, but only limited changes have yet been implemented.

23. Civil legal aid work is not sustainable for providers, resulting in many closing their legal aid departments, creating large advice deserts across the country. Remuneration for legal aid providers has not increased for most areas since 1996, yet in that time there has been an inflationary increase of 94.5%. High percentages of people have no access to a legal aid provider in their area across community care issues (71%), education (90%), housing (44%), immigration and asylum (63%) and welfare benefits issues (85%). The Government has consulted on increasing fee rates in housing and immigration and asylum, but more investment is urgently needed across all areas of legal aid.

24. The Crown Court backlog reached a record 74,651cases by the end of December 2024, 11% higher than December 2023 (67,317 cases). 16,813 Crown Court cases have been outstanding for a year or more. The Magistrates’ court backlog increased by 14% on the previous year to 309,838 at the end of December 2024.[8] The Government recently admitted that the Crown Court backlog could reach 100,000 by 2029 if it keeps climbing at the current rate.[9] Without efficient court processing, access to justice is hindered and victims drop out of the system, leaving them with a sense that justice is not being done.

4)   What is Parliament’s role in upholding the rule of law? Is it performing this role well, and how could it be improved? 

25. There is no obvious ‘lead’ for the rule of law in Parliament, among parliamentarians or staff, and while the rule of law should not be confused with the important and overlapping principle of parliamentary sovereignty, it is equally central to Parliament’s role. As legislators, parliamentarians play a crucial role in ensuring legislation promotes the rule of law and in holding the executive to account. All politicians, especially the Lord Chancellor and Law Officers, should communicate clearly and seek to improve external understanding about rule of law issues.

1. How can Parliament improve its legislating to better facilitate the rule of law?

26. Parliament should improve legislative tests for compliance with the rule of law – for example having a standard checklist for legislative clarity, completeness (use of ‘skeleton legislation’ and delegated or secondary legislation) and substance (the extent to which it complies with wider rule of law principles such as judicial accountability). We recognise that much of this is decided at an earlier stage, in Ministers’ decisions, civil service advice and drafting by parliamentary counsel (see below), but Parliament being clear about its requirements on these issues would contribute to raising standards.

27. Parliament should insist on having greater powers and resources to scrutinise and amend secondary or delegated legislation where it is deemed necessary.

28. Parliament should also push to ensure that Henry VIII clauses and ouster clauses are used sparingly, and when used, are carefully drafted with enough detail and substance for legal certainty.

29. Parliament should also keep pushing for a greater role in scrutinising international treaties and other instruments. Improvements have been suggested by all recent parliamentary inquiries on this topic, but little progress has been made. It is not enough for Parliament to scrutinise treaty-implementing legislation, as this considers only how a treaty (or parts of it) is to be implemented, not what should bind the UK. Parliament should have a veto power over important treaties, and better information on which to base their decision.

30. In addition, the Committee should consider recommending the appointment of an independent rule of law body to advise Parliament and the Government on the rule of law implications of legislation, treaties and other government policies. The Dutch Advisory Committee on Public International Law provides one possible example.

31. The Speaker of each House, given their political neutrality, could also be given a particular responsibility for upholding the rule of law, to encourage, support and oversee a strengthened rule of law culture in Parliament. This should be supported by ensuring that parliamentary clerks also fully understand and apply the requirements of the rule of law and Parliament’s role in upholding it.

5)   What is the Government’s role in upholding the rule of law? Is it performing this role well, and how could it be improved?  

32. Government must ensure that the legislation they put forward promotes and does not weaken the rule of law – including maintaining access to justice and the constitutional functions of parliament and the judiciary in providing checks and balances on executive action.

33. The Law Society has been seriously concerned about successive pieces of legislation – particularly within immigration and asylum law – which have attempted to reduce the role of the judiciary by restricting appeal rights and judicial review, and which have demonstrated a willingness to violate international law.

34. For example, the Safety of Rwanda Act directly contradicted a Supreme Court finding of fact. We welcome the reversal of some of this pattern of legislation in the Border Security, Asylum and Immigration Bill and the recommitment to comply with international law as indicated in the updated Ministerial Code.[10] However, we believe that there is more to be done to fully restore the judicial function through fully repealing the Illegal Migration Act and certain provisions in the Nationality and Borders Act.

35. The Constitutional Reform Act 2005 (CRA) recognises and outlines the primary duties of the Lord Chancellor.[11] While the duty to uphold the independence of the judiciary extends to all ministers, the duty on the Lord Chancellor goes one step further in expecting them to actively defend it.

36. Instances where this duty has not been met include failures to defend the judiciary from media attacks, sometimes targeted against individual judges.[12] There have also been a series of media reports misrepresenting court judgments – misrepresentations which the Government has not corrected and has on at least one occasion exacerbated.[13] The dangers of this were highlighted by the Lady Chief Justice who revealed that this has resulted in serious security threats to judges.[14] Judges, due to their impartiality, are not in a position to defend their decisions in the media. It is therefore important that attacks and misrepresentations are countered swiftly by the Lord Chancellor.

37. There have been instances where the judiciary has faced attacks and hostility from Government ministers themselves.[15] While these have mostly been addressed by Lord Chancellors, these attacks demonstrate a failure to meet ministerial obligations and instil an understanding of the importance of upholding the independence of the judiciary. It should also be noted that this duty explicitly extends to upholding the independence of international courts[16] which, in the case of the European Court of Human Rights in particular, has in the recent past routinely been attacked by Government ministers, including the Prime Minister.

38. The CRA contains a further specific duty on the Lord Chancellor and all ministers not to influence judicial decisions.[17] A notable example of where this obligation has been contravened involved guidance, which was subsequently found to be unlawful, issued by the then Lord Chancellor which prevented the provision of professional opinion evidence in Parole Board proceedings.[18] However, there are also examples of ministers having risked influencing decisions through publicly made comments,[19] as well as one instance of several MPs writing directly to a presiding judge regarding an ongoing court case.[20]

39. These instances show that there has previously been either a lack of understanding of, or a lack of appreciation for, the importance of these duties and what they require. In respect of the Lord Chancellor’s own actions, it is incumbent upon them to lead by example and uphold the highest standards in performing their duties. They must also show clear leadership in a wider sense, actively instilling ministerial commitment.

40. We are concerned at the attempt by previous Attorneys General to weaken standards, highlighted by changes to the Attorney General’s Legal Risk Guidance made in 2022 that required only a “reasonable legal argument” in support of government action for it to be deemed permissible. References to international law were also removed. Most notably this included the Safety of Rwanda Act and Bill of Rights Bill, both of which featured statements under Section 19(1)(b) of the Human Rights Act 1998 that the Secretary of State could not confirm their provisions would be compatible with the ECHR. Prior to that, the Secretary of State was also forced to admit that the UK Internal Market Bill (as it was then) would “break international law in a specific and limited way”.[21]

41. We welcome the most recent update to the Attorney General’s Legal Risk Guidance[22] for lawyers and others advising on lawfulness and legal risk in government for domestic or international law. The updated guidance reaffirms the Government’s overarching duty to comply with international law and advises that “the Government should not invite Parliament to legislate contrary to those international obligations”.[23] It is also much more explicit that relying on a merely “tenable” argument should be a last resort and expressly recognises that lawyers must advise that a course is unlawful if that is their professional assessment. It is imperative that the Law Officers and government legal advisers are empowered to raise concerns, even when this is not what ministers want to hear.

42. Alongside their function of providing robust legal advice, we also consider the role of Law Officers to be no less important than that of the Lord Chancellor in providing leadership on the rule of law and promoting understanding and commitment to it. Indeed, this should be a shared responsibility, and the Law Officers should be present figures both within and outside parliament, providing educative explanation and advocacy. We therefore fully support the Attorney General’s stated intention to reinstate a ‘rule of law culture’ and hope this will lead to improved scrutiny and higher government standards. To make the vital role of the Law Officers in this regard more prominent, we support the Constitution Committee’s previous recommendation of amending the Ministerial Code to make reference to a commitment to the rule of law being a principal duty of the Law Officers.[24]

6)   What is the role of the judiciary in upholding the rule of law? Is it performing this role well, and how could it be improved? 

43. With the increased and widespread use of digital technology, the judiciary has been adapting to, and incorporating, new ways of delivering open justice. This includes the broadcasting of proceedings. The President of the Family Division, Sir Andrew McFarlane, recently extended new open reporting provisions to all family courts in England and Wales meaning journalists and legal bloggers can report on what they see and hear whilst attending any family court (provided a transparency order is granted).

44. It is difficult to say with certainty how well the judiciary is performing its role unless robust data is made available.

45. The Lady Chief Justice has created a Transparency and Open Justice Board which is leading and co-ordinating the promotion of open justice across the courts and tribunals. The Law Society responded to the Board’s recent consultation regarding their proposed key objectives,[25] expressing the importance of ensuring the public understands and supports the workings of the justice system and feels a sense of connection to it and ability to participate.

46. We believe any agreed proposals must ensure that they do not impact on access to justice, do not have an adverse impact on individuals, particularly vulnerable people, and their right to privacy, and do not cause detriment to the integrity of court proceedings.

7)   Is there a role for the public in upholding the rule of law and international influence?

See answer to question 2.

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

47. We believe that understanding the importance of the rule of law should start with schools, which is why we fund Young Citizens and support their Big Legal Lesson which any school can access for free to boost understanding of the legal profession and its role in upholding the rule of law.

48. The Law Society is concerned that the Curriculum and Assessment review does not have a focus on the rule of law.

49. There are no easy answers for ensuring the media understands and appreciates the important part both it and the public play on the rule of law. But the Editors’ Code of Practice begins with “The press must take care not to publish inaccurate, misleading or distorted information”. The Independent Press Standards Organisation could do more to enforce this obligation when it comes to reporting on lawyers, judges and the law.

8)   How important is the rule of law for the UK’s economy?

50. The UK’s global reputation as a place for the world to do its business is dependent on our clear commitment to the rule of law. A consistent and predictable respect for the rule of law goes hand in hand with economic stability, attracting investment, and prosperity in international trade.[26]

51. Currently, English law is a known comparative advantage. The value of UK legal services exports stood at £9.5bn in 2023. England and Wales is the largest legal services sector in Europe and the second largest in the world. It is used around the world by parties seeking a neutral and effective law to govern their international commercial contracts — including in contracts where neither party nor the transaction has any connection to the UK.

52. The UK has been instrumental in creating many of the mechanisms that are seen as the bedrock for adherence to the rule of law both domestically and internationally. Continuing this trend is vital for maintaining our world-leading position.

53. Moves that seek to undermine the rule of law or diverge from legal obligations, whether domestic or international, can impact investor confidence, which in turn stunts potential economic growth. While the UK currently maintains a comparative advantage, any events that undermine our reputation, combined with the growth of other rival jurisdictions, will threaten the level of investment in our jurisdiction.

54. The Government can advance its growth mission by promoting its commitment to the international rule of law as a bedrock for investment and instilling confidence in investors that the UK is a stable place to do business. Clear commitments to upholding the rule of law in domestic legislation and political processes, as well as firm commitments to working constructively within international institutions, help to maintain international cohesion, which further embeds the consistency needed to attract international investment.

9)   What threatens the effective operation of the rule of law globally? 

55. Lawyers are often targeted as being associated with their clients or their clients’ causes. They face numerous challenges and risks, including physical attacks, threats, intimidation, harassment, or legal restrictions when performing their duties.

56. In some countries, state authorities have sought to interfere with the independence of lawyers and their professional associations, which can have a chilling effect and undermine the rule of law. The justice system, and democracy more widely, only works if it is independent of the Government.

1. Which countries do you think are leaders in adherence to the rule of law, and why is this the case?

57. The UK itself has a long history as a defender of the rule of law – a reputation which has been developed over centuries of common law, legislation and ratification of international treaties.

58. The legal profession in the UK has played a pivotal role in establishing and maintaining this reputation. English law is often chosen as the governing law in international contracts due to its predictability, neutrality, and commercial focus, making it a leader in legal services and a preferred choice for businesses.

2. How effective is the UK as an advocate for the rule of law on the international stage? How could this be improved?

59. The UK’s membership of institutions such as the United Nations, the International Criminal Court (ICC), the Council of Europe and the Commonwealth, as well as its ratification of key international treaties, are all important public demonstrations of a commitment to promoting the rule of law on the international stage.

60. We welcome the UK’s bid for membership of the UN Human Rights Council for the period 2026 to 2028. The UK’s pledges for the 2026‑28 term are described as focusing on some of the most pressing human rights challenges facing the international community including upholding the rule of law.[27]

61. The UK has ratified seven of the nine core UN human rights treaties, but successive governments have failed to incorporate them into domestic law and therefore they cannot be invoked before domestic courts. Full incorporation of the UN treaties, to which the UK is a state party, through primary legislation is required for those rights to be justiciable in domestic law.

62. The Council of Europe Convention on the Protection of the Profession of Lawyer,[28] adopted by the Committee of Ministers on 12 March 2025, is an opportunity for the UK to play a leading role in protecting lawyers and their role in defending the rule of law by becoming one of the first states to sign and ratify this historic treaty. The Convention establishes standards and measures to safeguard lawyers from threats, harassment, and undue pressure. It guarantees their freedom to practise without fear of retaliation or sanctions, ensuring they can represent clients effectively and advocate for justice impartially.

63. The UK has not signed and ratified either the UN Convention for the Protection of All Persons from Enforced Disappearance or the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. Neither has the UK accepted the UN individual complaints procedures for the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; or the Convention on the Rights of the Child. The Joint Committee on Human Rights has previously recommended that the UK reconsider its position, noting that “the UK’s slow progress in accepting individual petition, as compared with other European and Commonwealth states, undermines its credibility in the promotion and protection of human rights internationally.”[29]

22 April 2025