The House of Lords Constitution Committee’s new report on the rule of law provides an excellent overview of the concept and of the many challenges it finds itself under in the UK today. But the report’s focus on successive governments’ acts of constitutional negligence and recklessness that present challenges for the rule of law obscures a deeper, more existential question: namely, whether the UK constitution could withstand the sort of systemic constitutional vandalism that other democracies are experiencing today at the hands of populist and authoritarian regimes.
In a new report, The rule of law: holding the line against tyranny and anarchy, the House of Lords Constitution Committee provides an invaluable analysis of the rule of law in the UK today. It does so against a background that is equally sobering whether viewed from a domestic or a global standpoint. Recent years in the UK have seen judges and lawyers vilified for doing their jobs, a justice system that is creaking under the pressures it faces, a legal aid regime that denies access to justice to large swathes of the population, and politicians increasingly willing to characterise constitutional features like judicial review and human rights law as irritating obstacles to be circumvented or removed rather than as essential safeguards. Meanwhile, ‘rule of law backsliding’ is a widely acknowledged global phenomenon, leading some to describe a ‘rule of law crisis’ as judicial independence is eroded and individual rights are restricted by populist and authoritarian regimes. In its report, the Constitution Committee observes that ‘[t]his context serves as a stark reminder that the rule of law is not guaranteed and that we must be vigilant and actively protect it to avoid erosion’.
The meaning and importance of the rule of law
For anyone who wishes to understand what the rule of law is taken to mean in the UK context, and exactly how and why it finds itself under significant pressure today, the Committee’s report is an exemplary primer. Recognising that there is considerable debate about how the rule of law should be defined — with particular academic disagreement between ‘thin’ and ‘thick’ accounts, the former focussing on formal and procedural characteristics that the law should exhibit, the latter extending to ‘the promotion, and protection, of values such as equality, justice and democracy’ — the Committee adopts the following definition of its own:
The various definitions of the rule of law coalesce around five core components: acting within the law, equality before the law, judicial independence, legal certainty and access to justice. In practice, this means that a rule of law culture is one in which everyone: acts within the law and can rely on other people, including those in positions of power, to do the same, and, if not, to be held to account; is treated fairly before the law; has the benefit of independent judges who resolve disputes and decide questions of law without bias or external influence; is able to find out what the law is, and how it applies to them; and is able to access a fair and effective system in which they can obtain justice, resolve disputes, and protect their rights.
The Committee then goes on to identify a number of practical reasons why the rule of law matters, noting that it ‘ensures civil order and underpins the functioning of a successful and peaceful society’; ‘underpins business and trade by providing an ordered society and the legal stability necessary to maximise economic potential and drive growth’; and supports democracy by ensuring ‘that governments can be held to account and that individuals and organisations can access justice, independently of the whims of a government’. The remainder of the report works through the five elements of the rule of law that feature in the Committee’s preferred definition, examining the importance and implications of each, and making recommendations in relation to the (many) areas in which the rule of law finds itself under sustained pressure today.
The report is valuable not least because of the accessible way in which it is written, thereby helping to demystify a constitutional concept that is often difficult to grasp for those not steeped in the relevant legal and academic debates. It might, however, be thought that in one sense the report represents a missed opportunity. The impetus for the inquiry that yielded the report was the Committee’s well-founded concern about domestic and global threats to the rule of law — including the ‘tyranny’, referred to in the report’s title, that the rule of law potentially guards against in the face of the forces of populism and authoritarianism. Yet, beyond its introduction, the report has little to say specifically about those matters, which represent an overarching, existential threat to the rule of law, preferring instead to focus on — the many and undoubtedly pressing — individual challenges to the rule of law experienced in the UK today. Such analysis is essential and valuable. But there is also a need to step back and consider the wider picture, including the systemic and particular features of the UK constitution that arguably inhibit its capacity to withstand the sort of populist assault on the rule of law that some other democracies are currently enduring, the future possibility of which in the UK it would be extremely naive to rule out.
The rule of law and systemic constitutional vandalism
Many of the existing challenges to the rule of law on which the Committee’s report focuses derive from what we might term constitutional negligence: failing to fund the justice system adequately; starving legal aid of sufficient funds; pushing the envelope in terms of delegated powers because it is convenient to do so; allowing the statute book, and the associated network of supporting secondary legislation and guidance, to grow so voluminous and complex as to be practically inaccessible to the legally untrained. Other challenges go further, and undoubtedly constitute constitutional recklessness: past ministerial failures to defend judicial independence in the face of unprecedented attacks on the judiciary; previous governments’ willingness to play fast and loose with international law as a meaningful, binding set of obligations upon the UK; isolated attempts to immunise administrative decision-making from judicial review. But what about the sort of sustained course of constitutional vandalism upon which a populist government might embark in the future, involving, for instance, the dismantling of the executive’s legal accountability to the courts, the removal of basic rights or the undermining of fundamental democratic principle? Is the rule of law in the UK capable of withstanding a systemic assault of that nature?
The Committee’s report has little to say about that directly. Obliquely relevant, however, is the Committee’s discussion of the relationship between parliamentary sovereignty and the rule of law. In this regard, the Committee begins by citing its remarks about parliamentary sovereignty in a previous report:
Parliament is legislatively supreme, but that does not mean that it can, with constitutional propriety, assert that supremacy to undermine other constitutional values, in particular the rule of law. Put another way, under our constitution it is impossible for Parliament to behave unlawfully since its lawful power is unlimited, but it can behave unconstitutionally.
In its rule of law report, the Constitution Committee goes on to say:
[W]hen Parliament passes legislation that purports to undermine rule of law principles, it is acting unconstitutionally. However, as Parliament would be exercising its power to do so, given its legislative supremacy, the only remedies are political in nature. How this operates was described by Sir Stephen Laws: parliamentarians “behave like good chaps because it is politically damaging not to … As long as it is politically damaging not to respect the rule of law, people will respect it”. Without a political culture that respects the rule of law, parliamentary sovereignty can be used to undermine it.
The Committee concludes on this point:
Parliamentary sovereignty is the central principle of the UK constitution. It means that Parliament has the power to pass any law. However, with authority comes responsibility, and it is incumbent upon Parliament when making law to be mindful of the importance of the rule of law, and that to undermine it would be unconstitutional.
On this view, which undoubtedly reflects constitutional orthodoxy, the rule of law is ultimately contingent upon parliamentary acquiescence — meaning that a government of ‘bad chaps’, intent on doing violence to the constitution, including in the ways outlined above, would be entirely free to do so: politically, because they would arithmetically control Parliament, and legally, because that Parliament is sovereign. This, in turn, reduces to the view that, in the final analysis, such safeguards for the rule of law that exist in the UK system are to be found exclusively in the political realm. Such orthodoxy will be tested, however, if the UK is ever encumbered with the sort of populist government that seeks to embark on a programme of fundamental constitutional vandalism. With that in mind, the evidence submitted to the Committee by Lord Reed, the President of the Supreme Court, is worth considering:
[T]he rule of law and parliamentary sovereignty are twin pillars of our constitutionrather than principles in conflict with one another … [I]f the rule of law were not enforced through the courts, legislation could be arbitrarily applied or ignored, rendering Parliament’s role as the supreme law-making body meaningless. By interpreting and applying the legislation that Parliament passes, the judiciary support and enforce the sovereignty of Parliament.
This statement echoes — albeit that it does not in terms go as far as — the view advanced by Laws LJ in R (Cart) v Upper Tribunal [2009] EWHC 3052 (Admin):
If the meaning of statutory text is not controlled by such a judicial authority, it would at length be degraded to nothing more than a matter of opinion. Its scope and content would become muddied and unclear. Public bodies would not, by means of the judicial review jurisdiction, be kept within the confines of their powers prescribed by statute. The very effectiveness of statute law, Parliament’s law, requires that none of these things happen. Accordingly, as it seems to me, the need for such an authoritative judicial source cannot be dispensed with by Parliament. This is not a denial of legislative sovereignty, but an affirmation of it: as is the old rule that Parliament cannot bind itself. The old rule means that successive Parliaments are always free to make what laws they choose; that is one condition of Parliament’s sovereignty. The requirement of an authoritative judicial source for the interpretation of law means that Parliament’s statutes are always effective; that is another.
On this analysis, the extent of the constitutional vandalism that a populist government could effect is limited by the rule of law because Parliament is sovereign — judicial interpretation and curation of the statute book, which necessarily incorporates judicial review of the legality of executive action, being essential corollaries of sovereignty. It is perhaps surprising that the Constitution Committee did not engage with this view, merely quoting from Lord Reed’s evidence while appearing not to take on board the arguable implication of that evidence: namely, that the mutually reinforcing and complementary relationship between parliamentary sovereignty and the rule of law renders unduly simplistic the view that the former inevitably trumps the latter. Until recently, the relevance of such arguments has been essentially theoretical. But if the UK were ever to encounter the sort of constitutional assault that some other democracies are experiencing today, the Committee’s view that the ‘unconstitutionality’ of parliamentary legislation never impinges upon its legality may need to be revisited. At that point, what can today be dismissed as abstract questions of high constitutional theory would become all too pressing.
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