GMLC campaign volunteer Eleni Founta summarises JUSTICE’s new report into threats and challenges to the rule of law and access to justice, published in September 2023.
JUSTICE is a cross party law reform and human rights organisation working to strengthen the justice system – administrative, civil, and criminal – in the United Kingdom. The vision of the organisation is of fair, accessible, and efficient legal processes in which individuals’ rights are protected and the rule of law is upheld. JUSTICE carries out research to develop and evaluate ideas for law reform through its network of members.
Below, we summarise JUSTICE’s report ‘The State We’re In’, which addresses threats and challenges to the rule of law that could put people’s rights at stake.
The rule of law
The rule of law is often considered one of the foundations of a democratic society. It is based in the idea that “no-one is above the law”, protecting individuals from arbitrary state power and providing for certainty and consistency in legal disputes. According to Lord Bingham, the essential elements of the rule of law require that “all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect(generally) in the future, and publicly administered in the courts’’.
JUSTICE’s report finds that in the past decade and particularly the last five years, the process of law making has become less transparent, less accountable, less inclusive, and less democratic. The report assesses several rule of law benchmarks to illustrate its point.
One of the benchmarks is legality. To be compatible with rule of law principles, law-making must be transparent, accountable, inclusive, and democratic. However, the findings of the JUSTICE’s research show a concerning imbalance in the constitution that allows the government to exert undue control. For example, ‘Henry VIII’ powers, which allow ministers to amend or repeal laws through secondary legislation with little parliamentary oversight or scrutiny, have become more prevalent. This is 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’. Parliament’s ability to scrutinise has been diminished. As a result, the law-making process has become less transparent and inclusive, particularly in controversial areas of policy, where consultation and scrutiny are crucial so that ultimate legitimacy can be achieved.
The Illegal Migration Act 2023 is a characteristic example of the government’s authoritarian approach and misuse of its power. Public consultations have been poorly conducted, where they have been conducted at all. The consequences have substantial implications for the UK’s asylum system and human rights adherence. The Illegal Migration Act 2023 expressly disapplies section 3 of Human Rights Act, which means that the provision of the Acts is not to be “read and given effect in a way which is compatible with the Convention rights’’. The rule of law requires a state to act in a lawful manner, respectful of its obligations, both domestic and international – and human rights are a part of this commitment.
JUSTICE also raise the growing legislative disregard for human rights in other areas of law. For example, the Public Order Act 2023 has been widely criticised as an attack on our freedom of thought, expression, and peaceful assembly. The Public Order Act diminishes the right to protest by allowing the police to stop and search individuals without suspicion in certain circumstances. Whereas such powers were previously preserved for violent crime and terrorism-related offences, these measures could now be used to target almost anyone under the Act. The officer may then seize any object found if they reasonably suspect it is prohibited. Arts and crafts supplies, a first aid kit, and even a camera could conceivably constitute a prohibited object for use in connection with a protest that could be seized. Offences like “being equipped to lock on” in the Public Order Act are so vague that they could be committed in a wide range of circumstances, such as when someone in the vicinity of a protest has a bike lock or sticky tape on their person.
The London Metropolitan Police invoked the Public Order Act, arresting 52 individuals during the Coronation of King Charles III on suspicion that they intended to disrupt the event. At least six arrests were made pursuant to the offence of being equipped for locking on. The arrests were made after the police found items belonging to Republican protestors, which, at the time, the police said they had reasonable grounds to believe could be used for locking-on. After protestors were detained for 16 hours, all six were released, with no further action taken. The incident was a worrying precedent.
Another crucial aspect of access to justice is the ability of individuals to challenge governmental actions and decisions adverse to their rights or interests. This is primarily accomplished through judicial review, which assesses the lawfulness of decisions made by public authorities. In the administrative justice system, judicial review is crucial to ensure accountability of all public bodies and provide a check on state power — both of which are essential to the rule of law.
Since the last general election, the government has reformed administrative justice, in the form of the Judicial Review and Courts Act 2022. First, the Act gives judges new remedial powers, including the ability to grant prospective only quashing orders (“POQOs”). Unlike a regular quashing order, POQOs have no retrospective effect. In other words, any actions taken before the quashing order was issued remain lawful. No redress is, therefore, afforded to those who were impacted before the court’s decision, including the claimant themselves. If there is no benefit to be gained for yourself by reviewing a public authority’s decision, why would claimants go through the long, difficult process of litigation? As such, the change seems designed to deter potential applicants for judicial review.
Secondly, the legislation effectively abolishes Cart judicial reviews. Under Cart, the High Court had a supervisory jurisdiction over the Tribunal system, meaning that there were more avenues to appeal for claimants who had been refused the right to appeal at the Upper Tribunal. Cart judicial reviews have prevented serious injustices, serving to ensure that errors of law made by the First-Tier Tribunal and Upper Tribunal were identified and not perpetuated within the ‘closed’ tribunals system. These were particularly important routes for those with immigration law problems. Examples of successful Cart judicial reviews include those where legal errors had been made in determining whether a child in need of life saving treatment and a victim of trafficking who was at risk of being re-trafficked and forced into prostitution if returned to Nigeria could stay in the UK. Without access to this sort of judicial review, more people will suffer injustice within the tribunal system, with life-changing consequences.
Access to justice and legal aid cuts
Continual cuts to legal aid have decimated access to justice in the UK. Overall annual expenditure on legal aid dropped by a quarter between 2009 and March 2022. The watershed moment was the passage of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”), which cut legal aid for a range of civil disputes, such as those pertaining to welfare benefits, employment, and private law family cases. Many of those who might have previously been granted legal aid were no longer eligible, yet still unable to afford legal representation. Due to these cuts, individuals accessing legal aid for matters relating to welfare benefits, for example, fell by 99.5% between 2012/13 to 2016/17.
There is more on the GMLC website about how legal aid cuts have affected access to justice in social welfare law.
Political attacks on lawyers, the judiciary and the European Court of Human Rights (ECHR)
Another facet of access to justice is the public’s perception of the independence of the judiciary and the legal profession. According to JUSTICE’s report, there is a trend over the past five years of increasing derogatory remarks being made by politicians against legal practitioners, evident from the rise in the use of terms such as ‘lefty lawyer’ and ‘activist lawyer’, amongst others. In March 2023, Home Secretary Suella Braverman blamed an “activist blob of leftwing lawyers” (plus civil servants and the Labour Party) for illegal migration to the UK. The effect of this is to justify spending cuts to the social welfare legal sector and to undermine the legitimacy of legal challenges to government policy.
Politicians have also taken aim at human rights in general, and the EU courts that are there to uphold human rights internationally. Successive Prime Ministers have criticised the ECHR and there have been pushes for the UK to withdraw from the court’s jurisdiction in order to allow a harsh crackdown on migration. This is effectively an admission that the UK cannot pursue its current immigration policies without contravening international human rights laws.
JUSTICE makes conclusions in summary, with hope that the damage to the rule of law can be reversed:
- Parliamentary scrutiny must be enhanced in the legislative process and the executive must be prevented from exerting undue control.
- Human rights legislation should be protected and recent legislation undermining rights protections for vulnerable groups should be repealed (including the Covert Human Intelligence Sources (Criminal Conduct) Act 2021; parts 3 and 4 of the Police, Crime, Sentencing and Courts Act 2022, the Public Order Act 2023, and the Illegal Migration Act 2023).
- Constitutionally exceptional legislation, such as that which contains Henry VIII powers or has retrospective effect, must be clearly justified as being necessary, not desirable or easy.
- Clarity in the law – and the rights, obligations, liabilities and sanctions it imposes on legal persons – is crucial to prevent arbitrary abuses of power, with emergencies being no exception.
- The justice system must be adequately resourced.
- Judicial review has become a key civic tool against arbitrary use of the state’s extensive powers. There must be no further undermining of the individual’s ability to hold the state to account and judicial review must be protected from further curtailment.
- Open justice is not an optional add-on but a core principle, and justice system reform must recognise it as such.
- The government must wholly reject and must not themselves engage in hostile and disparaging attacks on the judiciary and the legal profession. This will ensure that an independent and impartial judiciary, and a robust legal profession, can continue to support the rule of law on society’s behalf.
- The Government should collect, publish and monitor equalities data systematically; increase the use of Equality and Impact Assessments for legislation; and strengthen and protect the powers and independence of the Equality and Human Rights Commission.
Image credit: Zack Lee, Flickr, 2007.