The rule of law is under threat
The United Kingdom’s constitution relies heavily on the ability of Parliament to scrutinise and legislate effectively.
Yet, with legislation coming thick and fast over recent years, the expanded role of the executive has become ever more important given the limited time available for Parliament to amend or improve legislation. As a result, it is essential that policy is developed with a strong evidential basis, backed by robust consultation.
Last week, the cross-party law reform group, JUSTICE, which I head, launched a landmark report raising concerns over what constitutes good lawmaking and recognised that Parliament’s role within that process has nosedived.
The absence of rigorous scrutiny is doubly concerning when the policy development process is itself found wanting
As explained by Dr White, director of the Institute for Government: “Our current generation of ministers have got used to the apparent benefits of legislating at speed. They have forgotten the downsides. And MPs generally – one third of whom have joined the House since 2017 – have lost institutional memory of what used to count as adequate scrutiny.”
The absence of rigorous scrutiny is doubly concerning when the policy development process is itself found wanting. Our findings revealed a disconcerting pattern of consultations being treated as a box-ticking exercise by the government rather than an opportunity to improve policy and law. We can see the problem illustrated most clearly when examining how the Ministry of Justice, led by former lord chancellor Dominic Raab, sought to undertake human rights reform.
In December 2020, the government established the Independent Human Rights Act Review, chaired by Sir Peter Gross, with the mandate to evaluate the Human Rights Act. The Review panel concluded in its comprehensive report that the Act was “generally working well”, and proposed only modest reforms. Clearly dissatisfied, the government, remarkably, decided not to respond to the Review panel’s findings but to publish a consultation with proposals that far exceeded the scope of the report. Unsurprisingly, Sir Peter rebuked the MoJ, condemning the consultation as “not grounded in anything even approximating the exercise we conducted”.
This consultation amassed a significant number of responses, totalling over 12,000. The reaction was overwhelmingly negative, with as many as 90 per cent of respondents rejecting certain measures. Unwilling to back down, the government ignored the majority of the evidence provided, publishing its response less than two months after the consultation had closed, introducing the Bill of Rights Bill to Parliament 10 days after that.
This approach to crafting fundamental constitutional changes lacked the hallmarks of an evidence-led exercise. Fortunately, the new Lord Chancellor and Secretary of State for Justice Alex Chalk MP has confirmed that the government no longer intends to proceed with the Bill of Rights. However, had the government heeded the original review’s conclusions, it might have realised earlier that the bill was unnecessary and unworkable, sparing the expense and precious policy development time that could have been focused elsewhere. This was no way to attempt to legislate in an area which has such significant implications for the UK’s approach to the rule of law.
This flawed practice was no outlier. Indeed, in March 2023, the Illegal Migration Act was introduced into Parliament. This legislation has significant implications for the UK’s asylum system and its commitment to its obligations under the European Convention of Human Rights and other international legal instruments (such as the Refugee Convention). Here, the government chose not to consult with the public at all, nor was another option, pre-legislative scrutiny, undertaken. By contrast, the last significant immigration legislation, the Nationality and Borders Act, underwent a six-week public consultation, and was not introduced to Parliament for two months after the end of that process. As things currently stand, despite these two pieces of extensive legislation, costs have ballooned, and the asylum system remains in free-fall. Predictable outcomes that most experts forewarned from the get-go.
A cardinal principle of the rule of law, as articulated by Lord Tom Bingham is that the “law must be accessible and so far as possible intelligible, clear and predictable”. Proactively legislating in a way that ignores or undermines evidence undoubtedly falls far short of this standard. This is especially concerning when fundamental rights are at stake.
As we look forward to the next phase of the government’s agenda to be outlined in November’s King’s Speech, it is vital that lessons are learned. At a time when the country faces challenges from multiple angles, we must return to policy development that is inclusive, transparent, firmly rooted in the evidence and, above all, compliant with the rule of law.
Fiona Rutherford, chief executive of JUSTICE
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