Institute for Constitutional and Democratic Research – Written Evidence (ROL0086)

1. This is the ICDR’s submission to the House of Lords Constitution Committee’s inquiry into the rule of law. It draws heavily on the All Party Parliamentary Group on Democracy and the Constitution’s report on the independence of the judiciary. That report is included as the appendix to this submission. Where information is drawn from outside of that report, the source is provided in the footnotes.

Summary

(1)        The rule of law is best understood, as described by Lord Bingham, as a constitutional principle which ensures that power is exercised according to law in a real as well as theoretical sense.

(2)        The rule of law is an essential element and guarantor of democracy.

(3)        The UK is part of a global “rule of law recession”. Governments have consistently appeased, rather than challenged, global threats to the rule of law.

(4)        Key threats to the rule of law (both in the UK and globally) include:

(i)           Power is increasingly exercised according to discretion rather than law;

(ii)        The government and the parliament increasingly seek to exercise control over the judiciary.

(iii)      Parliament has legislated to allow government to act unlawfully with impunity.

(iv)      Politicians and the media regularly spread false information about the law and the justice system.

(v)        The UK is subject to an ongoing campaign to remove legal protections for fundamental rights.

(vi)      The UK has an inconsistent approach to international law.

DEFINING THE RULE OF LAW

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

2. The best exposition of the components of the rule of law was provided by Lord Bingham KC. He proposed the following:

(a)        The law must be accessible and, so far as possible, intelligible, clear and predictable.

(b)        Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion.

(c)         The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.

(d)        Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably.

(e)        The law must afford adequate protection of fundamental human rights.

(f)          Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve.

(g)        The adjudicative procedures provided by the state should be fair.

(h)        The rule of law requires compliance by the state with its obligations in international law as in national law.0F[1]

3. Critics of Bingham’s view argue for a “thin” conception of the rule of law, whereby the concept means nothing more than (generally) “power is exercised by law”.1F[2] The thin conception is unsatisfactory for three (related) reasons:

(a)        First, it fails to distinguish between power which is exercised by law and power which is exercised according to law. In the former case, the law is a mere tool for the exercise of power by the powerful. In the latter, the law is a framework which controls power and ensures that it is accountable.

(b)        Second, it confines the debate entirely to the theoretical arena. If state power is to be genuinely exercised according to law in practice, then all of Bingham’s criteria must be in place. Otherwise, power may be exercised according to law in theory but, in practice, it is exercised either by law or entirely arbitrarily. If, for example, legal disputes cannot be settled without prohibitive costs, then it is impossible for a significant section of society to ensure that the rich “exercise power according to the law”.

(c)         Third, it ignores the symbiotic relationship between the rule of law and democracy (see below). A dictatorship in which the dictator’s word is law might, theoretically, fit the thin conception of the rule of law. This, however, is law without legitimacy. It reduces the rule of law to an empty concept because it is no different from rule by fiat. 

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

4. The rule of law is not merely important to the UK constitution. It is fundamental.  The rule of law is an essential tenet of a functioning democracy:

(a)        First, democracy is only possible when the state recognises that all individuals are of equal basic value and, consequently, entitled to equal basic rights. The rule of law makes rights a reality by establishing their application, limitations, and enforcement.

(b)        Second, the rule of law is the ultimate check on the arbitrary exercise of power. This applies to both government power and power exercised by private individuals over others.

(1)        As to government power – The UK constitution gives potentially unlimited power to whoever controls the majority in the House of Commons (this has not reflected the majority of the electorate since the 1935 general election). The rule of law ensures that this power must be exercised predictably, consistently, and within confines which allow it to be held to account. A government is, for example, bound by its own legislation and generally cannot arbitrarily exclude those it favours from the effects of its legislation (with some notable exceptions).

(2)        As to private power – the rule of law regulates relationships between citizens and ensures that power (such as financial, media, or physical) is exercised in a manner that is predictable, consistent, and accountable. This includes ensuring that disputes are settled fairly.

(c)         Third, the rule of law ensures that power can be held to account.

(1)        As to government power – it establishes the “rules of the game” for the relationship between government and the citizen and provides mechanisms to ensure that both play by those rules. This includes the rules for political competition.

(2)        As to private power – it provides for rules which prevent the abuse of power and remedies to ensure those rules are observed.

5. The rule of law, in summary, makes democracy a reality. Elections are a necessary but not sufficient criterion for a democracy. Without clearly established, predictable, and enforceable rules regulating the relationships between citizen and state and citizen and citizen, the most powerful will dominate regardless of elections. This is demonstrated in, for example, Russia and Hungary.

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

6. A good starting point for assessing the health of the rule of law is to examine how far each of Bingham’s principles hold true in practice. A brief evaluation suggests that several do not. These are developed in more detail in subsequent questions but summarised below:

(a)        Government and private power is often exercised by discretion rather than law;

(b)        Many (arguably the majority) of people are denied real access to justice. This means that the law does not, in practice, apply equally to all.

(c)         Politicians, the media, and political influencers consistently misinform (and in some cases deliberately or negligently mislead) the public as to legal issues. The public is serially ill-informed about the basic elements of the UK constitution, legal system, and law.

(d)        Politicians too often abuse our constitutional structures to make political attacks on the judiciary and infringe upon the independence of the judiciary.

(e)        There is an ongoing campaign to remove protection for fundamental rights.

(f)          The UK takes an inconsistent approach to compliance with international law. The UK often treats international law as a political tool rather than a genuine obligation.

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?

7. The United Nations has engaged in substantial work to develop an understanding of the rule of law which is both cross-cultural and relevant to the challenges of the 21st century.
8. The UN description of the rule of law adopts the “thick” conception advanced by Lord Bingham:

[The rule of law is]…a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.2F[3]

9. The Secretary General’s “New Vision” for the rule of law sets out the role that the rule of law plays across multiple fields of interest. These include:

(a)        The rule of law is the basis for the international system;

(b)        As a foundation for peace;

(c)         Ensuring respect for human rights;

(d)        Facilitating development;

(e)        Advancing gender equality;

10. It argues that the promotion of the rule of law requires:

(a)        A forward-looking approach to address new and emerging issues;

(b)        Collecting reliable evidence and data; and

(c)         A “people-centred” approach.3F[4]

11. The EU enshrines the “rule of law” in its constituting treaties.4F[5] Like the UN, it adopts the “thick” conception:

The rule of law is enshrined in Article 2 of the Treaty on European Union as one of the common values for all EU Member States. Under the rule of law, all public powers always act within the constraints set out by law, in accordance with the values of democracy and fundamental rights, and under the control of independent and impartial courts. Respect for the rule of law is essential for the very functioning of the EU: for the effective application of EU law, for the proper functioning of the internal market, for maintaining an investment-friendly environment and for mutual trust.

The EU has developed a number of different instruments to promote and uphold the rule of law. The EU’s rule-of-law policy approach rests on three pillars:

-          the promotion of a rule-of-law culture in the EU, which involves deepening common work to spread understanding of the rule of law in Europe;

-          the prevention of rule-of-law problems where they emerge in a Member State, having the capacity to intervene at an early stage and avoiding the risk of escalation, including in particular the European Rule of Law Mechanism, with the annual Rule of Law Report at its centre;

-          the ability to mount an effective response when a problem of sufficient significance has been identified in a Member State, including the procedure under Article 7 of the Treaty on European Union.5F[6]

12. There is a risk in drawing on certain states’ definitions of the “rule of law”. The thin conception is often drawn on by authoritarian states as a way to justify their conduct in the international context. Hungary, for example, claims to uphold the rule of law while, at the same time, taking steps to remove fundamental rights, access to justice, and other key pillars of the rule of law.6F[7]

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

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

13. Politicians have serially misled the public on issues of importance to the rule of law. A chronology of significant misleading statements made by politicians and the media is contained in the appendix to these submissions. In summary:

(a)        Politicians and the media have (baselessly) accused judges of “interfering in politics” (or similar/equivalent language). In all cases, judges did no more than apply existing law on the basis of established principles. In many cases, politicians made statements that were, as a matter of fact, untrue.

(b)        Political discourse on this matter conflates “judges interfering in politics” with “judges making decisions that have political impacts”. All public law (and many private law) decisions have political impacts. They affect how power is exercised and may cause political or personal embarrassment for those involved. This is a feature of our constitution, not a bug. Judges cannot advance their own political agenda, but they can (and must) enforce the law regardless of the political consequences.

(c)         The debate has also been misinformed by opaquely-funded political actors like the “Judicial Power Project”. The JPP advanced the claim that judges were “overreaching” based on, inter alia, “50 problematic cases”. The claims around these cases were often not peer reviewed. They have been repeatedly debunked in peer reviewed publications and by leading practitioners and scholars.7F[8]

(d)        Politicians have embraced far-right conspiracy theories like the “two-tier justice” theory. This claims, without coherent evidence, that the justice system treats white people more harshly than people of global majority heritage. In fact, the weight of evidence suggests that the opposite is true.8F[9] This has not prevented uncritical reporting of the theory by the media and politicians seeking to exploit it for political gain.

14. The public, in general, has a poor understanding of the judicial system, the law, and the rule of law. Studies by the Legal Education Foundation indicate a low level of understanding about how legal decisions are made.9F[10] A majority of the public do not feel like they are able to engage with the legal system.10F[11]
15. The phrase “rule of lawyers” seems to flirt with the sort of misinformation and conspiracy theory discussed above. There is no basis in fact for the suggestion that lawyers, in any sense, “rule” (save, perhaps, that certain cabinet ministers are trained as lawyers, although one hopes they see themselves as “governing” rather than “ruling”). Lawyers argue cases to the best of their ability according to the law and evidence. Courts decide cases according to the law and evidence. Lawyers, therefore only ever work within the constraints set by parliament and the government. Independent reviews have repeatedly rejected the idea that courts overstep their constitutional boundaries.11F[12]

THE OPERATION OF THE RULE OF LAW

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

16. The World Justice Project, which monitors the rule of law globally, has identified a global “rule of law recession”.12F[13] In particular:

(a)        A significant number of states have legislated or used executive power to insulate government and powerful individuals from legal accountability (or have attempted or are in the process of doing so). These include, inter alia, Argentina,13F[14] the United States,14F[15] Hungary,15F[16] Israel,16F[17] Russia,17F[18] Italy,18F[19] and the UK.19F[20]

(b)        Politicians on the far-right and parts of the right operate across borders to attack judicial decisions. In particular, where far-right and right-wing politicians break the law and are convicted, they use global networks to make (spurious but widely and credulously reported) claims of conspiracy and persecution against them. Recent examples include Donald Trump (convicted 34 counts relating to business and campaign fraud,20F[21] and found by a civil court to have committed sexual assault21F[22]) and Marine Le Pen (convicted of embezzlement22F[23]). Nigel Farage was also found to have committed a similar wrong to Le Pen, but this was resolved as a regulatory matter.23F[24] Politicians who claim to support the rule of law fail to push back against these false narratives.

17. The UK also faces significant domestic threats to the rule of law. These include:

(a)        Misinformation spread by politicians and the media (see above);

(b)        Dark-money funded campaigns which, it would appear, seek to undermine fundamental rights;24F[25]

(c)         Government pressurising judges to determine cases in its favour (see below);

(d)        Parliament legislating to provide the government and powerful individuals with impunity (to various degrees) (see below). 

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

18. The UK’s constitution relies heavily on parliament voluntarily respecting the separation of powers. If parliament chooses to step outside its constitutional role, there is relatively little that the other branches of the state can do about it. The rule of law thus only survives so long as parliament exercises self-restraint.
19. Parliament has, in recent years, repeatedly legislated to undermine the rule of law. Examples include:

(a)        Trespass on the constitutional role of the courts - The Safety of Rwanda (Immigration and Asylum) Act 2024, for example, forced the courts to pretend that Rwanda was a “safe” country for the purposes of the various Immigration Acts despite the Supreme Court already having found that the contrary was true (on the basis of an extensive review of the evidence). This breached the separation of powers. Parliament usurped the court’s constitutional role of making decisions of fact on the basis of the balance of evidence.

(b)        Extension of the government’s discretion - The Police Crime Evidence and Sentencing Act 2022 and the Public Order Act 2023 – Both of these statutes gave police powers to outlaw peaceful protest. The legal test for the use of the power was reduced, in practice, to a question of discretion. This meant that the police were empowered to trespass on fundamental rights in exercise of a power which is difficult if not impossible to challenge in court.25F[26]

(c)         Legislating for impunity - Parliament has, in recent years, legislated to “oust” judicial challenge, thereby empowering the government to act unlawfully with impunity.26F[27]

(d)        Removing the ability to bring a claim – Government and parliament hav repeatedly restricted legal aid27F[28], increased the cost of bringing a claim,28F[29] and defunded the judicial system.29F[30] This prevents people from bringing or defending legitimate claims. It means, in practice, that only the richest in society are able to enforce their legal rights. This means that the law does not apply equally to all. Polls suggest that the majority of British people believe it is too expensive to bring a claim30F[31] and/or that wealth is a more important factor in the justice system than it used to be.31F[32]

20. Parliament also provides a platform for politicians to spread misinformation about the justice system.

i. How can Parliament improve its legislating to better facilitate the rule of law? Is it performing this role well and how could it be improved?

21. It would be sensible for parliament to review proposed legislation against all constitutional principles (including the rule of law). The question of parliament’s power to legislate contrary to constitutional principle is, perhaps, outside the scope of this inquiry. Parliament should, however, be transparent about when it intends to do so. The public can then hold politicians to account accordingly.
22. It would also be sensible for parliament to update its conduct rules and regime to provide a more effective disincentive for making of misleading statements.

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?

23. The government exercises a significant amount of control over parliament. The points made above, therefore, also apply to this question.
24. Governments, however, also have statutory and conventional duties in respect of the rule of law. These are set out in the APPG on Democracy and the Constitution’s report on judicial independence:32F[33]

All ministers are subject to a statutory duty, under section 3 of the Constitutional Reform Act 2005, to “uphold the independence of the judiciary”. The 2005 Act specifies that this duty includes a prohibition on ministers attempting to interfere directly with judicial decision. It is clear, however, from the drafting of section 3, that this is but part of the duty, not its entirety. As Sir Jonathan Jones QC (Hon) noted, ministers’ duty extends beyond merely paying lip service to judicial independence, they must also proactively maintain it (especially where it is threatened). 

The Lord Chancellor is subject to a further legal duty “to have regard to”:

(a) the need to defend that independence;

(b) the need for the judiciary to have the support necessary to enable them to exercise their functions;

(c) the need for the public interest in regard to matters relating to the judiciary or otherwise to the administration of justice to be properly represented in decisions affecting those matters. 

Beyond the 2005 Act, there is (or was) a constitutional convention by which ministers (and MPs) will “show due inhibition” when commenting in Parliament on judicial words and deeds and, outside parliament, ministers will never criticise the judiciary. This convention is “the other side of the coin” from the convention that judges, even when speaking extra-judicially, will not criticise the executive or legislature.33F[34] 

25. Ministers have, as set out above, undermined the rule of law by putting inappropriate pressure on judges to find in their favour. These attempts include:

(a)        Contacting judges directly to pressure them to decide cases differently;

(b)        Publicly threatening judges with punitive action (including targeted at their families) unless they decide cases in a manner more favourable to the government;

(c)         Publicly claiming that the above threats worked;

(d)        Claiming (without basis) that judges have made errors of law when deciding cases in favour of minoritised communities;

(e)        Threatening to intervene in sentencing decisions.

26. A fuller chronicle of these attempts is set out in the Appendix to this submission.34F[35]

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?

27. The role of the judiciary is to apply the law independently, objectively, and fairly. There is little (if any) credible evidence that the judiciary has fallen below this standard. Where individual judges have made errors, the appeal courts have generally set the matter right.
28. The threats to the rule of law come entirely from outside the judiciary. The remedies lie in the hands of politicians.

7. Is there a role for the public in upholding the rule of law?

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

29. There is a role for the public in upholding the rule of law as there is in upholding all constitutional principles. The UK constitution essentially relies on those in power exercising restraint. The only “hard” guarantee of democracy in the UK is the approbation of the people.
30. The public has, however, been left ill equipped to discharge its constitutional role for two reasons:

(a)        First, the public is serially misinformed by politicians and the media (as set out above);

(b)        Second, politicians have denied the public the skills and basic information required to understand the rule of law and the justice system. Constitutional education makes up a small part of one subject (“Citizenship”) in the National Curriculum. Most students receive, at best, a few hours of teaching about the constitution as a whole, let alone the rule of law. This has produced a population that does not understand or, in many cases, appreciate or value, the rule of law, it’s role in the constitution, and the role of the public in upholding both.

8. How important is the rule of law to the UK’s economy and international influence?

The importance of the rule of law to the economy

31. The rule of law is important to the economy for three key reasons:

(a)        First, the rule of law is an essential element to any economy. Economic value is generated by transactions. The law provides the framework for transactions. Market economies can therefore, only function if the participants can trust that contracts will be honoured. The rule of law ensures that contracts are honoured, and disputes can be settled.

(b)        Second, the rule of law guarantees a stable regulatory environment. Where the law is predictable and generally applicable, market actors can make investment decisions. This creates growth. Without that predictability, there is greater risk attached to investing. This suppresses growth.

(c)         Third, the UK’s legal system is a vital economic engine:

(1)        In 2023 the sector generated a turnover of £44bn, it employed (directly or indirectly) around 526 000 people, and has generally bucked the trend of stagnation that has impacted many areas of the economy over the last decade.35F[36]

(2)        The sector is an important export. In 2022 the UK exported around £9.5bn in legal services, UK law governs around £250bn of global mergers and acquisitions, and 40% of all global commercial arbitrations take place under English law.36F[37]

(3)        The sector underpins growth in other sectors. The international reputation of the UK legal services sector attracts investment in other sectors, including finance, construction, media, and culture.37F[38]

32. The actions of government and politicians have put this success in jeopardy. The replacement of legal power with discretionary power (see above) and the public willingness to break international law (see below) has reduced confidence in the stability of the regulatory environment. In 2020, for example, Moody’s downgraded the UK’s credit rating, in part due to “weakening institutions and governance”.38F[39]

International influence

33. The UK is, at best, a mid-tier global power. Yet the UK holds an elevated position in the global rules-based order for the following reasons:

(a)        The UK holds a seat on the UN Security Council;

(b)        The global prominence of the UK’s legal system and the dominance of English (with French) as one of the two “global languages of law”;

(c)         The prominent role of English common law in the drafting of, and jurisprudence surrounding, international and regional legal instruments;

(d)        The prominence of London as a centre for international dispute resolution and commercial contracts.

34. While the global rules-based order is strong, therefore, the UK “punches above its weight” in international influence. Where, however, the rules-based order is weak, the UK is generally not in a position to dictate terms of international relations. The UK therefore becomes a de-facto “rule taker”.

9. What threatens the operation of the rule of law globally?

35. The global threat to the rule of law is discussed above.

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

36. The World Justice Project tracks the health of the rule of law in 142 states. The UK, while relatively highly ranked, has fallen from 10th to 15th in the last decade.
37. The highest ranked states in every year of the last decade are Denmark, Norway, and Finland. These maintain their positions for the following reasons:

(a)        The principles of the rule of law (as set out above) are both embedded in their culture and enshrined and enforceable in their legal systems.

(b)        Politicians have not sought to gain political advantage by attacking the justice system.

(c)         The justice system is adequately funded and resourced. Access to justice is relatively widespread.

(d)        Governments take a forward-looking approach, evolving the rule of law institutions to deal with incoming challenges, such as AI.

(e)        Governments regularly take account of, and implement, the recommendations of independent bodies which assess the health of the rule of law.

(f)          These states have low levels of corruption and high levels of government transparency.

(g)        Governments have not sought to centralise power, at the expense of the rule of law, in the same way as in the UK or other states. In general, governments have exercised high levels of restraint.39F[40]

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

38. The UK’s effectiveness has declined in this area for the following reasons:

(a)        Governments have sought domestic political advantage by threatening (and legislating) to break international law around Brexit;

(b)        Governments have been inconsistent as to their position on international law issues, such as international humanitarian law, war crimes, and genocide. The UK has taken strong action in relation to some violations of international law (such as Russia’s actions in Ukraine and Hamas actions in Israel), it has not taken equivalent action in other, similar, circumstances (such as China’s treatment of the Uyghur people, Russia’s actions in Syria, and Israel’s actions in Palestine). The UK may have broken international law in respect of its trade, intelligence, political, and military support for Israel’s occupation of the West Bank, Gaza, and East Jerusalem (which was found to be unlawful by the International Court of Justice).40F[41]

(c)         UK governments have adopted an appeasement policy towards Western regimes which have made assaults on the rule of law (such as the Meloni regime in Italy and the Trump regime in the US). This may be on the basis that it is inappropriate for a government to comment on the domestic politics of another state. Those regimes, however, no longer observe that diplomatic nicety. The UK therefore appeases anti-rule of law regimes while those regimes actively support the erosion of the rule of law in the UK and other states.

14 April 2025