The rule of law is part of our national culture – but it is a culture that is now under threat. So said the House of Lords constitution committee in a report published yesterday. But even as the report was being sent to the printers, a new challenge emerged.
Announcing ‘what may be the most substantial reforms to the UK’s asylum system in a generation’, the home secretary told MPs that migrants challenging removal would have ‘just one opportunity to claim and one to appeal, ending the merry-go-round of claims and appeals that frustrate so many removals’. As Shabana Mahmood explained, an appeal would be heard by ‘a new appeals body staffed by professional independent adjudicators’.
Would that appeals body qualify as a court? Clearly not: Mahmood told MPs that ‘all claims [will be] heard first by the Home Office and not in a courtroom’.
So would it be possible to seek judicial review of the appeal body’s decisions? Home Office sources grudgingly admitted that it would. But we must check the promised legislation when it arrives for any attempt to oust the jurisdiction of the courts – or the ‘merry-go-round of claims and appeals’, as Mahmood described it.
‘The power to hold the government to account for breaches of the law is a vital part of the rule of law,’ the constitution committee says. ‘The existence of the judicial review process also contributes to a culture of lawfulness and safeguards the rule of law, as the possibility of judicial review encourages the government to act in accordance with legal advice.’
Peers are critical of ministers who regard judicial review as a block on government action. If the courts get it wrong, parliament can change the law. But the committee says reforms should be introduced without calling into question the process of judicial review or the decisions of the judiciary.
‘A culture of hostility towards the judiciary has been allowed to develop in recent years because of inappropriate, and often inaccurate, public criticism by politicians and journalists, accompanied by inadequate defence from government ministers,’ the report says.
Personal attacks on individual judges or on the judiciary as an institution put judicial independence at risk, it adds. ‘Politicians and the media should refrain from publicly criticising judges, in general or individually, even when disagreeing with specific judgments or the law that underpins them. This needs to be accompanied by ministers, particularly the lord chancellor, willing to speak out in defence of the judiciary when it comes under attack.’
Surely the worst culprit is Robert Jenrick, the shadow justice secretary who used a full-bottomed wig as a political prop during his party conference speech. When I discussed the report with Lord Strathclyde (pictured), the Conservative peer who chairs the all-party constitution committee, I pointed out that some attacks on the judiciary had come from politicians in his own party.
‘They have indeed, and they have done for a very long time in both parties,’ he replied. ‘Where individual judges have broken their own codes of discipline, there’s a perfectly good system within the judiciary for dealing with that. But where they have not – they’ve just made an unpopular judgment – they need to be protected and defended.’
Strathclyde’s committee defined the rule of law in terms of the culture it represents. That culture is one in which: everyone acts within the law and can rely on others to do so; everyone is treated fairly before the law; everyone has the benefit of independent and unbiased judges to resolve disputes and decide questions of law; everyone is able to find out what the law is and how it applies to them; and everyone is able to access a fair and effective system in which they can obtain justice, resolve disputes and protect their rights.
And yet public confidence is being challenged by a sense that people are getting away with breaking the criminal law. Civil claims are also being thwarted by inefficiency and delay. Misinformation on the effect of court rulings – not just on social media – leads to a culture of disrespect. In the committee’s view, judges can take an active role in communicating with the public, particularly in countering misleading narratives about the courts and their judgments, without entering the political fray.
The rule of law ensures that governments can be held to account, says the committee. The future of our democracy relies on protecting the rule of law against challenge. Failing to do so risks the rise of extremist political parties, growing antipathy towards democracy and, ultimately, the risk of dictatorship.
It may seem ironic for a hereditary peer in the unelected chamber to be warning of the risks to democracy. But the title of Strathclyde’s report says it all: we depend on the rule of law to hold the line against anarchy and tyranny.
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