New report by Justice highlights how rule of law is being corroded

The author, Justice, is a cross-party law reform and human rights charity which aims to strengthen our justice system. I am proud to serve on its advisory council alongside lawyers from all parties and none.

You can find a link to the report here.

The rule of law is a fundamental pillar of our democracy. It means that the government should not interfere with individual freedoms without the approval of parliament and, where appropriate, oversight by the courts.

Equality before the law for all – both individuals and the state – underpins the rule of law. Most importantly, it serves to prevent the abuse of state power.

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The Venice Commission which advises the Council of Europe on constitutional law has said that “a strong regime of rule of law is vital to the protection of human rights”.

It is therefore very concerning that following careful analysis of the impact of legislation and policy over recent years, Justice has reached the unavoidable conclusion that the rule of law is under threat in the United Kingdom.

The report details how since Brexit and throughout the pandemic, successive governments (all Tory) have pursued a legislative programme which has expanded the state’s powers while limiting its accountability and that many of those laws conflict with the UK’s obligations under the European Convention on Human Rights (ECHR).

Examples of such laws include:

• the Covert Human Intelligence Sources (Criminal Conduct) Act 2021, which granted immunity for criminal offences committed by undercover operatives.
• the Overseas Operations (Service Personnel and Veterans) Act 2021, which granted immunity to members of the Armed Forces facing prosecution for certain offences.
• the Judicial Review and Courts Act 2022, which limited access to justice for those impacted by unlawful decision-making.
• the Nationality and Borders Act 2022 and the Illegal Migration Act 2023, which limit or prohibit access to justice and human rights protections for immigrants and asylum seekers putting the UK in contravention of its international obligations.
• the Police, Crime, Sentencing and Courts Act 2022, which introduced a wide range of measures encroaching on domestic and international human rights protections, from increased powers to restrict protest, to the criminalisation of Gypsy, Roma and Traveller communities’ way of life.
• the Public Order Act 2023 which took many of the restrictions on the right to protest even further.

This list will continue to expand for so long as the Tories remain in power.

Their attack on freedom of expression and freedom of assembly is particularly concerning. As Helena Kennedy KC, the president of Justice, said when launching the report, narcissistic, power-crazed leaders don’t like criticism. Attacks on the rule of law and the courts go hand in hand with the rise of any autocracy.

One of the report’s recommendations is that the Government should strengthen public ownership of and education about human rights. This mirrors the recommendations of the Independent Review of the Human Rights Act carried out a couple of years ago and of the Joint Committee on Human Rights.

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There was a particularly shocking example of ignorance about human rights at the top level this week when Angela Eagle, a senior Labour MP, and Jo Grady, a trade union leader, said that the right to freedom of speech enshrined in Article 10 of the ECHR does not include the right to offend. This is absolute nonsense and flies in the face of the case law of the European Court of Human Rights.

Speech that is used to threaten, intimidate, blackmail or incite hatred may incur criminal penalties. The civil law means defamatory speech may result in damages being payable, but speech which merely offends is neither criminal nor actionable.

These  supposed left-wingers would do well to acquaint themselves with the resources of organisations such as the campaign group Liberty where they will learn that we have the right to express ourselves freely and to hold our opinions even if our views are unpopular or could upset or offend others.

The Tories on the other hand seem keen on freedom of speech only when it accords with their views and not so much when it benefits the voices of people protesting their policies.

The Justice report also expresses concern about other developments corrosive of the rule of law, including the growing tendency to avoid public consultation or pre-legislative scrutiny of bills and the sidelining of results that don’t suit the government, the expanding use of “Henry VIII” powers which allow ministers to amend or repeal law through secondary legislation with little or no parliamentary oversight and the failure to conduct proper equality impact assessments in advance of legislating so that discrimination and systemic inequalities go undetected and unaddressed.

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The report does not look at the legislative record of the devolved governments in Scotland and Wales. However, there is no room for complacency. Concerns have been raised about rule of law and human rights aspects of recent legislation in Scotland including the proposed pilot of juryless trials.

I have previously argued that we could do with strengthening executive scrutiny at Holyrood by having the chairs of the scrutiny committees elected by backbenchers rather than appointed by the whips.

An independent Scotland will need a written constitution with human rights at its heart and checks and balances on government power, including a second chamber and a constitutional court.

Justice concludes that a future UK Government must commit to repealing legislation undermining rights for vulnerable groups. I will be working hard to ensure the SNP commit to supporting this in our manifesto for the next General Election.

The question is whether the Labour Party will do so – or will this be just another aspect in which they are Tory-lite?