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Table of contents

Approximate read time: 10 minutes

On 26 November 2024 the House of Lords will debate the importance of the rule of law. The debate is sponsored by Baroness Smith of Cluny (Labour), the new advocate general for Scotland. During her swearing in ceremony as advocate general, Baroness Smith said that she holds a responsibility “along with the attorney general and the solicitor general for England and Wales, to uphold and promote the rule of law in government”.[1]

1. Principles of the rule of law

The rule of law is not defined in statute, but its central tenets are widely recognised and date back a number of centuries. A particularly well-known interpretation was set out by Professor A V Dicey in 1885, who broke it down into three concepts:

  • No man could be lawfully interfered or punished by the authorities except for breaches of law established in the ordinary manner before the courts of land.
  • No man is above the law and everyone, whatever his condition or rank is, is subject to the ordinary laws of the land.
  • The result of the ordinary law of the land is constitution.[2]

Another often used interpretation comes from a 2006 lecture on the rule of law by Lord Bingham of Cornhill, a former master of the rolls, lord chief justice of England and Wales and senior law lord.[3] Lord Bingham described the core principles of the rule of law as:

[…] all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts.

In 2010, Lord Bingham expanded these core principles into the following eight key principles:

  • The law must be accessible and, so far as possible, intelligible, clear and predictable.
  • Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion.
  • The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.
  • 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.
  • The law must afford adequate protection of fundamental human rights.
  • Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve.
  • The adjudicative procedures provided by the state should be fair.
  • The rule of law requires compliance by the state with its obligations in international law as in national law.[4]

According to Department for Education guidance, rule of law is one of the concepts that should be taught in schools as a “fundamental British value”.[5]

2. Recent views on the rule of law in the UK

2.1 House of Lords Constitution Committee

In February 2022, the House of Lords Constitution Committee launched an inquiry into the roles of the lord chancellor and the law officers.[6] As context to the inquiry, the committee said the then government’s commitment to the rule of law had been called into question in recent years.[7] For example, it highlighted concerns raised about the United Kingdom Internal Market Act 2020 and the Northern Ireland Protocol Bill and their compatibility with the UK’s international obligations and the rule of law.

On 18 January 2023, the committee published its report.[8] It described the rule of law as “vitally important to the health of our democracy” and said the lord chancellor and law officers needed to have the “correct character, authority, intellect and independence” to defend it.[9]

The committee described it as “fundamental to our constitution” that the government acts in accordance with the rule of law.[10] The committee said it was “critical” that ministers understood the rule of law’s key principles and considered these to have primacy over political expediency.

The committee said the lord chancellor should fulfil a “wider, cross-departmental” role in defending the rule of law and educating colleagues on its importance.[11] It stated that defending the judiciary “promptly and publicly” from unfair, personal or threatening abuse is a “core part” of the lord chancellor’s role.[12] It also said law officers should play a wider role in defending the rule of law when issues arise.

The committee argued that when determining whether the government has acted lawfully in certain situations, law officers and government lawyers should consider whether a “respectable legal argument” can be found to justify the action. The committee said this test set a “very low threshold” for authorising legally uncertain actions.[13] The committee stated the test should instead be “meaningful” and align “with an ethos of genuinely seeking to comply with the law”.[14]

Another issue considered by the committee was whether legal advice provided to the government should be made public. Whilst the committee said legal advice should not be routinely published, it argued there was a case for publishing advice in cases of national importance such as government decisions to use the armed forces.[15]

The government responded to the committee’s report on 16 March 2023.[16] On the rule of law, the government acknowledged the importance of the principle and the roles of the lord chancellor and law officers in safeguarding this.[17] It also agreed that defending the judiciary from unfair, personal or threatening abuse was a key part of the lord chancellor’s role. However, it disagreed that the lord chancellor must intervene “publicly” when defending the judiciary. It argued there would be occasions where it would be most effective for the lord chancellor to resolve issues “behind the scenes”.

The government also defended the use of the “respectable legal argument” test but agreed with the committee’s wider point that public confidence in the government’s commitment to the rule of law was key.

2.2 Sector organisations

In September 2023, law reform and human rights organisation Justice published ‘The state we’re in: Addressing threats and challenges to the rule of law’. The report stated that the rule of law has been facing “attacks from multiple directions and successive governments”.[18] Justice argued:[19]

  • Public consultations are poorly conducted, if at all. For example, it said the Illegal Migration Act 2023 was not subject to any public consultation or pre-legislative scrutiny despite having “profound implications for the UK’s asylum system and human rights adherence”.
  • There has been a growing legislative disregard for human rights. It said laws like the Public Order Act 2023 could have a “chilling effect on our rights to freedom of thought, expression, and peaceful assembly”.
  • ‘Henry VIII’ powers, which allow ministers to amend or repeal laws through secondary legislation with little parliamentary oversight or scrutiny, have become more prevalent, adversely affecting the principle of legal certainty. Justice said this was evident in the European Union (Withdrawal) Act 2018, in which “power is bounded by whether the minister thinks its exercise is ‘appropriate’, rather than it being objectively ‘necessary’”.
  • Cuts to legal aid have decimated universal access to justice, with victims and witnesses left waiting months if not years for a trial. It said this has been compounded by the ongoing courts backlog crisis.
  • Approaches to tackling inequality and discrimination are unfit for purpose. It said the budget of the Equality and Human Rights Commission has “plummeted”. It also said policymakers do not, as a matter of course, conduct equality impact assessments. For example, it cited the Illegal Migration Act 2023 not receiving an assessment until after its passage through the House of Commons.

Justice’s president is Baroness Kennedy of the Shaws (Labour). On the report’s publication, she said, “the rule of law in this country is under unprecedented threat, and reversing this trend will take hard work and consensus across the political spectrum”.[20]

On 5 July 2024, the Law Society said the new government should “renew our commitment to the rule of law”.[21] It called for the government to:

  • commit to maintaining the UK’s human rights law framework through the Human Rights Act 1998 and the European Convention on Human Rights
  • ensure that the UK adheres to the international commitments that it has willingly taken upon itself
  • commit to ensuring adequate time, transparency and evidence for proper scrutiny of proposed legislation
  • ensure that all legislation offers legal certainty and sufficient safeguards for ordinary people to enforce their rights through the courts; for example, by avoiding unreasonable ouster clauses, retrospective clauses and ‘Henry VIII’ powers
  • respect the independence of the judiciary and the justice system as a whole, and refrain from using hostile or derogatory language towards judges and lawyers
  • amend recent legislation that has harmed the rule of law, such as the Safety of Rwanda (Asylum and Immigration) Act 2024 and the Illegal Migration Act 2023

2.3 Leader of the Conservative Party

In her evidence to the Post Office Horizon IT Inquiry on 11 November 2024, new leader of the Conservative Party Kemi Badenoch was asked whether she thought the rule of law stood in the way of the delivery of services by government. She said:

You can have the rule of law without an excessive burden of regulation, but if you keep adding more and more rules that will slow things down.

It doesn’t mean that you don’t want the rule of law, but the rule of law has a purpose, and that is to create a fair system which everybody has treated equally, and where everyone can receive justice.

If you keep creating more regulations and people aren’t getting justice, then something has gone wrong, and we should be able to look at that without assuming that this is a criticism of the entire system of the rule of law.

It means that we should be able to look at how we can reform public law. The law is not above criticism. We should be able to say “Actually, this isn’t working, what can we do to improve it”, rather than what is happening now where people say, “Oh, it’s the rule of law. We can’t touch it. Let’s not do anything”.[22]

3. Labour government and the rule of law

The Labour manifesto said the UK should be “a defender of the international rule of law” and pledged to raise confidence in the criminal justice system to “its highest levels”.[23] The party committed to reform of the justice system, and the King’s Speech included a Victims, Courts and Public Protection Bill.[24] It said its measures would include improving support for victims of crime and reducing delays in the courts system. The bill has not yet been introduced.

Prime Minister Keir Starmer has announced the creation of a national violent disorder programme.[25] This followed violent disorder after three children died and others were injured during an attack on a dance class in Southport on 29 July 2024. Keir Starmer described rioters’ actions as an “assault on the rule of law and the execution of justice”.[26] Read more about criminal justice following the riots here:

Legal commentator Joshua Rozenburg noted the prominence commitments to the rule of law were given in the swearing in of the new lord chancellor, attorney general and solicitor general in July 2024.[27] Attorney General Lord Hermer said that the rule of law would be “the lodestar for this government”. He set out the government’s priorities for affirming rule of law:[28]

In recent years, events at home and abroad serve to remind us all that once you start pulling on a single thread of the fabric of the rule of law system, when democratic norms are whittled away through attrition, the risk of systemic unravelling is great and the concomitant task of retrenching standards we once took for granted, very difficult indeed. […]

We will support the lord chancellor’s mandate to protect the independence of the judiciary. Allied to this, we will work with her to promote better appreciation in Westminster and beyond of our constitutional balance in which a respectful relationship between parliament, the executive and the courts is understood to be the bedrock of our framework of governance. […]

Just as we will promote the rule of law domestically, so we will seek to promote international law and the rule of law in the international legal order. […]

Looking inwards, we will seek to promote the highest standards in how we legislate, seeking to increase accessibility and certainty in how we make law—including not abusing the use of secondary legislation.

The attorney general also delivered the 2024 Bingham lecture on the rule of law on 14 October 2024.[29] He said that a strong rule of law helps citizens, businesses, and potential international investors have faith in the justice system.

Lord Hermer said that the government had demonstrated its commitment to international rule of law by honouring obligations under international law, including settling sovereignty claims over the Chagos Archipelago.[30]

He also said that the new government had an opportunity to reset how secondary legislation is used, assessing whether it is justified and appropriate in each circumstance. He also set out his intention to imminently issue amended guidance for assessing legal risk across government, so that government lawyers “feel empowered to give their full and frank advice to me and others in government and to stand up for the rule of law”.[31]

4. Read more

Cover image by Sang Hyun Cho on Pixabay.

References

  1. Scotland Office, ‘Advocate general for Scotland, Catherine Smith KC, sworn in’, 27 September 2024. Return to text
  2. LexisNexis, ‘What is the rule of law?’, 7 September 2020. Return to text
  3. Lord Bingham of Cornhill, ‘The rule of law: The sixth Sir David Williams lecture’, 16 November 2006. Return to text
  4. Bingham Centre for the Rule of Law, ‘Our vision’, accessed 8 November 2024; and Tom Bingham, ‘The Rule of Law’, 2010 (access to this resource requires a parliamentary login). Return to text
  5. Department for Education, ‘Promoting fundamental British values through SMSC in schools: Departmental advice for maintained schools’, 27 November 2014; and House of Commons, ‘Written question: Citizenship: Education (4990)’, 18 September 2024. Return to text
  6. House of Lords Constitution Committee, ‘Role of the lord chancellor and the law officers’, accessed 8 November 2024. Return to text
  7. House of Lords Constitution Committee, ‘Lord chancellor and law officers must have the character, authority, intellect and independence to defend the rule of law’, 18 January 2023. Return to text
  8. House of Lords Constitution Committee, ‘The roles of the lord chancellor and the law officers’, 18 January 2023, HL Paper 118 of session 2022–23. Return to text
  9. As above, p 5. Return to text
  10. As above, p 3. Return to text
  11. As above, p 33. Return to text
  12. As above, p 37. Return to text
  13. As above, p 42. Return to text
  14. As above, p 43. Return to text
  15. As above, p 44. Return to text
  16. House of Lords Constitution Committee, ‘The roles of the lord chancellor and the law officers—government response to the committee’s ninth report’, 16 March 2023. Return to text
  17. As above, p 1. Return to text
  18. Justice, ‘The UK’s longstanding commitment to the rule of law is under grave threat according to landmark report from Justice’, accessed 8 November 2024. Return to text
  19. Justice, ‘The state we’re in: Addressing threats and challenges to the rule of law’ September 2023, pp 1–2. Return to text
  20. Justice, ‘The UK’s longstanding commitment to the rule of law is under grave threat according to landmark report from Justice’, accessed 8 November 2024. Return to text
  21. Law Society, ‘Our three key asks of the new UK government’, 5 July 2024. Return to text
  22. Post Office Horizon IT Inquiry, ‘Phase 7: 11 November 2024’, 11 November 2024. Return to text
  23. Labour Party, ‘Labour Party manifesto 2024’, June 2024, pp 13 and 117. Return to text
  24. Prime Minister’s Office, ‘King’s Speech 2024: Background briefing notes’, 17 July 2024, p 61. Return to text
  25. Prime Minister’s Office, ‘Our immediate action after Southport attacks’, 6 August 2024. Return to text
  26. Vikram Dodd and Aletha Adu, ‘Far-right riots: Keir Starmer announces new violent disorder unit’, Guardian, 1 August 2024. Return to text
  27. Joshua Rozenberg, ‘Rule of law’, A Lawyer Writes, 16 July 2024. Return to text
  28. As above. Return to text
  29. Attorney General’s Office, ‘Attorney general’s 2024 Bingham lecture on the rule of law’, 15 October 2024. Return to text
  30. As above. Return to text
  31. As above. Return to text