A new Constitution Unit report by Meg Russell, Hannah White and Lisa James, published jointly with the Institute for Government, provides a menu of constitutional reform options ahead of political parties’ manifesto preparation. Its chapters appear on this blog throughout August, with this fourth excerpt identifying potential changes relating to the courts and the rule of law.

Recent years have seen growing scrutiny of the relationship between government, parliament and the courts, and the government’s attitude to the rule of law. Politicians have increasingly tended to push back against courts – which are said to have become too powerful in our constitutional arrangements, leading to a ‘democratic deficit’. Resistance to the European Court of Justice and the European Court of Human Rights seems to have evolved into a more general willingness to breach, or risk breaching, international law. Added to this have been disagreements over the appropriate bounds of legal scrutiny, with the government’s increasing use of ouster clauses – which exempt certain decisions from judicial review – attracting particular attention. And legal funding and administrative challenges continue to fuel expert concerns about access to justice. In this climate, the role of the government’s law officers, such as the Attorney General, in upholding the rule of law has come under increasing attention. These tensions have boiled over at times into very public attacks by ministers on judges and lawyers.

This is an area in which there could be significant ‘quick wins’ through communicating a change of attitude. Beyond this, various proposals for change have come from external expert bodies and parliamentary committees for improvements to the system. Such reforms – some of them quite minor – could help to settle the relationship between the political branches and the courts. This would help uphold the UK’s reputation as a bastion of the rule of law – with all the international political and economic advantages that confers. There are also proposals for wider-reaching policy change.

Quick wins

• The government should express public support for the vital role played by the legal profession and the courts in a well-functioning democracy. In recent years, ministers have used labels such as ‘lefty lawyers’ or ‘activist lawyers’ to attack those working on legal challenges brought against the government, particularly on migration. As the Bar Council and Law Society have pointed out, such attacks fundamentally misunderstand lawyers’ role in upholding the law.
• Governments have recently shown a new willingness to breach, or threaten to breach, international law. The most overt such threats – in the Internal Market Bill and Northern Ireland Protocol Bill – were subsequently dropped, but the current government has been unable to certify that its Illegal Migration Bill is compatible with the European Convention on Human Rights (ECHR). Experts have identified breaches of international law in this and a number of other recent bills, including legislation related to the armed forces and Northern Ireland. Such actions damage the UK’s international standing and risk economic harm by deterring inward investment. The government should make clear its commitment to respecting and upholding international law. This could later be cemented by restoring the explicit reference to ministers’ duty to uphold international law which was removed from the Ministerial Code in 2015.
• It is welcome that Rishi Sunak’s government has recently restated its commitment to the ECHR, in the Reykjavik Declaration. Although exit from the ECHR has never been government policy, a significant number of Cabinet ministers are now willing to push for it, and would place the UK alongside only two countries in Europe – Russia and Belarus.  The government should firmly defend the ECHR, and reaffirm that the UK will respect all judgments and decisions of the European Court of Human Rights.
• In appointing a Cabinet, all Prime Ministers should be mindful of the Lord Chancellor’s statutory obligation to defend the rule of law in government, and ensure that they appoint an individual who is both able and supported to fulfil this role.

Moderate changes

Human rights

Human rights have been a major topic of debate and disagreement in recent years. Experts have criticised legislative changes which have threatened rights protection in the UK; there are opportunities to strengthen the current regime.

• The government should confirm its commitment to the Human Rights Act (HRA) as the appropriate legal framework for giving effect in UK law to the rights in the ECHR. The evidence collected by the government’s own Independent Human Rights Act Review clearly shows that the HRA is working well and is internationally considered as a model of democratic rights protection. Some provisions in recent bills (some now passed into law) have sought to disapply some key HRA provisions – for example by disapplying the ‘interpretive obligation’ which requires the law to be interpreted compatibly with ECHR rights so far as possible – and these should be reviewed.
• To build on the current model, parliament’s role in relation to human rights should be further enhanced. This would not replace the important role of courts, but engage parliamentarians more directly in discussions and debates about what human rights mean in practice, and what effective protection of them requires.
• As the government’s Human Rights Act Review recommended, ministers should seriously consider developing a programme of civic and constitutional education for delivery in schools, universities and adult education, including human rights education.

Judicial review

Judicial review has been subject to increasing restrictions in recent years – notably through the repeated use of ouster clauses. There have also been concerns about various other restrictions imposed on judicial review. Though governments are understandably keen to enact their policies, it is also fundamental to the rule of law that government power should remain subject to legal controls.

• The government should as far as possible avoid the use of ouster clauses in legislation, and carefully consider and justify the impact on the rule of law of any that they conclude are unavoidable. As experts at the Bingham Centre on the Rule of Law have suggested, ouster clauses ‘undermine the principle of legality, that we are all bound by the law’.
• The government’s conduct in judicial reviews – in particular its failure to provide adequate information either to claimants or to its own lawyers – was recently criticised by the High Court. The government should ensure that it follows the guidance on the ‘duty of candour’ set out in the Administrative Court Guide to Judicial Review and Guidance from the Treasury Solicitors Department. Its own Independent Review of Administrative Law also suggested that the scope of the duty requires clarification.  
• Changes can also be made at policy development stage to reduce the likelihood of clashes with the courts. The government should reverse former Attorney General Suella Braverman’s changes to the Guidance to Government Lawyers on Legal Risk. As the Bingham Centre for the Rule of Law has pointed out, this changed the way in which government lawyers were required to present advice about risk to ministers, to downplay expert assessment of how policy would be treated by the courts. Denying frank expert advice to ministers on whether a legal challenge is likely to succeed is unhelpful, and indeed potentially incompatible with the overarching duty in the Ministerial Code to comply with the law.

Role of the law officers

High-profile clashes between governments and the judiciary have brought the role of the law officers under increasing attention.

• The Lords Constitution Committee has suggested that the role of law officers should be codified and set out in the Ministerial Code and Cabinet Manual, to improve public understanding of the roles. This should include a clear commitment to the law officers’ duty to uphold the rule of law, clarification of where the line falls between collective accountability as a minister and independence from government as a law officer, and accountability to parliament.

Access to justice

Bodies including the House of Commons Justice Committee have long raised concerns that underfunding of the justice system threatens access to justice – a key principle underpinning the rule of law.

• The government should consider whether the current legal aid system is fit for purpose, and in particular whether the fixed fee structure as it currently stands is adequate to ensure fairness, and to maintain the sustainability of the legal aid sector.
• It should also address the concerns raised by the Independent Review of Administrative Law about the current cost rules in judicial review acting as a barrier to individuals seeking access to justice. The recommendations put forward by Lord Justice Jackson offer a starting point for this.
• The government should ensure that it collects the data necessary to develop a thorough understanding of the state of access to justice, and the impact of any reforms – following recommendations made by the Legal Education Foundation, Young Legal Aid Lawyers and the Public Law Project.

Larger more controversial reforms

• A British Bill of Rights has long been mooted, including by both main parties. The term British Bill of Rights could cover a multitude of policy options, but experts have expressed concern that if such a policy is pursued, it should not diminish rights, or make it more difficult for individuals to claim them.
• The commission chaired for the Labour Party by Gordon Brown recommended greater legal protections for social and economic rights. This is a complex area on which legal and political opinion is not decided – such proposals would need considerable thinking through before being ready for implementation.
• Some have suggested a reconfiguration of the Ministry of Justice to focus solely on justice, with the operational running of prisons moved elsewhere in government to facilitate this. This would represent a major machinery of government change, and should not be undertaken lightly given the significant loss of productivity such changes entail.

This is the fourth of five chapters to be published in blog form from the recent joint Constitution Unit and Institute for Government report Rebuilding and Renewing the Constitution: Options for Reform. Previous chapters have covered the executive branch, parliament and the territorial constitution; the final post will look at elections and public participation. A summary post marking the report’s publication is available on this blog, and the full report is available for download on the Constitution Unit and Institute for Government websites.

About the authors

Meg Russell FBA is Professor of British and Comparative Politics at UCL and Director of the Constitution Unit.

Hannah White is Director of the Institute for Government.

Lisa James is a Research Fellow at the Constitution Unit.