Rebuilding and renewing the constitution: the courts and the rule of law

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.

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Combatting backsliding: what works?

The Constitution Unit held an event in May, at which three expert panellists discussed the rise of democratic backsliding internationally and considered key domestic and international interventions which might help to combat this trend. In the first of a two-part series, Sophie Andrews-McCarroll summarises the discussion from the main portion of the event. A separate blog, covering the Q&A section of the event, will be published on 16 June.

Discussions about the health of democracy internationally are occurring more and more frequently, amid worrying reports of a global decline in democratic standards. These concerns relate to the problem of increasingly prolific democratic backsliding – a process by which a legitimately elected leader challenges democratic norms and institutions, and deliberately begins to dismantle checks and balances on the executive.

To discuss these challenges, and to examine possible solutions, the Constitution Unit convened a panel discussion on combatting democratic backsliding, held on 23 May 2023. This event was chaired by Meg Russell, who was joined by experts Dr Seema Shah (Head of the Democracy Assessment Unit at the International Institute for Democracy and Electoral Assistance); Ken Godfrey (Executive Director of the European Partnership for Democracy); and Professor Kim Lane Scheppele, (Laurance S Rockefeller Professor of Sociology and International Affairs, Princeton University).

The below is a summary of the speakers’ opening remarks. There will subsequently be another blog detailing the subsequent panel discussion and audience questions.

Seema Shah

Dr Shah opened the session by addressing the concept of democratic backsliding. A number of problems have arisen in defining the term. ‘Backsliding’ has been used, and is still widely used by practitioners today, to discuss a variety of general declines in democratic health – but these definitions can present challenges for those collecting data to measure the concept. International IDEA has defined backsliding as significant declines over a five-year period in checks on government; in credible elections; and in civil liberties. Academics and practitioners do not necessarily use these same categories. What has been most useful is the consensus that backsliding commonly refers to the purposeful dismantling of democratic building blocks from within by democratically elected leaders.

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