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THE RULE OF LAW Safeguarding the UK’s legal excellence A LEGACY OF 800 YEARS ROBERT BUCKLAND MP SAVE JUDICIAL REVIEW DAVID LAMMY MP BATTLING THE COURTS BACKLOG AMANDA PINTO INTERVIEWED BY EMILY LAWFORD JANUARY/FEBRUARY 2021 | KINDLY SUPPORTED BY A WORD FROM OUR SPONSORS JANUARY/FEBRUARY 2021 | PROSPECT THE RULE OF LAW 1 THE RULE OF LAW: A LIVING CULTURE CONTENTS A VERDICT NEVER Not a constitutional abstraction 2 A LEGACY OF 800 YEARS Now comes the next chapter IN DOUBT MURRAY HUNT DIRECTOR OF THE BINGHAM CENTRE FOR THE RULE OF LAW ROBERT BUCKLAND ALEX DEAN SENIOR EDITOR, PROSPECT 3 SAVE JUDICIAL REVIEW A constitutional cornerstone DAVID LAMMY he United Kingdom is a legal 3 5 SECOND THOUGHTS powerhouse, its reputation for Judges change their minds excellence forged over centuries. DAVID NEUBERGER T England is the home of Magna Carta and the Bill of Rights, and has 6 JUSTICE DELAYED Battling the backlog since exported its legal system around the EMILY LAWFORD world. Stability and flexibility are among INTERVIEWS AMANDA PINTO that system’s greatest strengths. We are regularly reminded of the 8 THE WONDER OF history. But that excellence is very much THE COMMON LAW still with us today. As Nicholas Phillips, Hardwired with humanity former president of the Supreme Court, THOMAS POOLE told me in research for this report: 10 CHARTING THE COURTS “Our judiciary has a reputation for high calibre and integrity—the two go © TASOS KATOPODIS/GETTY IMAGES KATOPODIS/GETTY © TASOS 12 OUR WORD IS OUR BOND together.” Our wider legal infrastructure Trump’s impotence after his election loss tells us a lot about law and society International law matters is outstanding. This is important as a BOB NEILL matter of constitutional principle but also 5 ow many times in the last few years have we heard the last brings economic benefits. “The majority of have shown how deep-rooted is their commitment to legal process 13 THE OVERSEAS rites being read for the rule of law? and to the independence of the judiciary. IMPUNITY BILL commercial contracts around the world are The steady rise of authoritarian populism and the Arguably, nowhere is this rule of law culture more deeply A licence for brutality still governed by English law,” Phillips said. H resurgence of nativist political narratives has been seen rooted than in the UK. HARRIET HARMAN “That makes London a natural forum for as a harbinger of the end of an era. Are democratic states still This country has by no means been immune from the resolving disputes.” committed to the principle that even elected governments must pressures that have put the rule of law under strain in many other 14 PARLIAMENT PASSED So is that “job done”? Not exactly. A big accept certain constitutional constraints on their powers? democratic states. THE BUCK concern as we send this report to press is The judiciary picked it up Anxiety that the end of the rule of law is nigh has been fuelled The ruptures and dislocations inevitably involved in the UK the Internal Market Bill, legislation whose ALEX DEAN by the growing number of democratically elected governments leaving the European Union have thrown up many challenges for INTERVIEWS JOHN THOMAS passage would itself arguably constitute which have sought to capture their countries’ constitutional courts, the rule of law. When the government attempted to bypass and an infringement of international law. For pack their judiciaries with political sympathisers, marginalise their even suspend parliament, the UK Supreme Court demonstrated 16 A LEGISLATIVE HORROR a country seeking new partners around parliaments, control their media, squeeze civil society and suborn or its fearless independence, twice intervening to tell the government SHOW the globe, that is deeply regrettable. The hollow out any independent institutions capable of acting as a check that it is a civil war too late to attempt to reassert the supremacy The scourge of delegated offending clauses may yet be removed on the power of the elected executive. of the executive over the legislature. The rule of law requires that legislation but as former lord chief justice John But as these struggles come to a head in the European Union, the executive is subordinate to the legislature, and it is the job of ALEXANDRA SINCLAIR Thomas told me, perceptible damage has AND JOE TOMLINSON in the showdown with Poland and Hungary over rule of law the courts to remind the government of that no doubt inconvenient been done. conditionality in the EU budget, events playing out in the United constitutional fact. 17 PLYING ONE’S TRADE Careful attention must be paid also 8 States are a useful reminder of the nature of the rule of law. And look what happened when the government introduced The power of exports to the government’s programme of Episodes during President Trump’s four years in office have called legislation (the UK Internal Market Bill) which asked parliament ANTONIA ROMEO constitutional reform. There is every case for into question the administration’s acceptance of the norms which to authorise the deliberate breach of an international treaty very examining the operation of judicial review together add up to a commitment to the rule of law: overt attacks recently entered into by the UK. The Lords made clear by an 18 WHISTLING IN THE WIND and the Human Rights Act, so long as it is Protect those who speak out on judicial integrity, abuse of the power of presidential pardon, overwhelming majority that they consider it their responsibility to conducted in a spirit of genuine evidence- JOHN BOWERS inappropriate direction of independent law officers and Department uphold the rule of law by refusing to be complicit in such a flagrant based policymaking. of Justice lawyers. The charge sheet of the President’s offences repudiation of it. 19 WHAT’S IT WORTH TO YOU? Yet the strength of our position is such against the rule of law has been logged by supporters of his own The many eloquent and powerful speeches during the Lords The value of English law that the UK’s legal calibre is not for a party, like George W Bush’s former speechwriter David Frum and debates on the bill reveal the essence of the UK’s historical ELIZABETH GLOSTER moment in question. It is woven into our campaign group Republicans for the Rule of Law. commitment to the rule of law and the reason for its deserved AND GUY BERINGER democratic fabric. Our status will always Yet the President’s impotence following Joe Biden’s clear victory international reputation. It rests not on some abstract constitutional be top tier: the question is how to make 20 HOW TO WRITE A JUDGMENT in the presidential election not only demonstrates the robustness of statement or fetishisation of courts and lawyers. Rather, it depends a permanent claim on the number one Keep it short the US’s rule of law institutions, it reminds us that the rule of law is on a very wide range of different actors feeling a shared commitment ROBIN JACOB spot. We hope this report provides a not some technical legal requirement that can be ignored by powerful to a set of values which transcend narrow party loyalties. few answers. demagogues, but a complex living culture, sustained by many The rule of law, in other words, is a living and breathing culture, different actors internalising a strong sense of their responsibility to a habit and state of mind instantiated by public participation in our Follow Prospect: This report forms part of Prospect’s work on law and the constitution. For more information on the report and uphold it. Consider the many thousands of electoral officials across national life. As such, it is a precious thing which must be cared for our wider programme of activity please email: [email protected] the country who showed their commitment to delivering a free and rejuvenated by every generation. But in the UK it has shown time twitter.com/prospect_uk PROSPECT PUBLISHING LTD, AS THE PUBLISHER OF THIS REPORT, HAS USED ITS BEST ENDEAVOURS TO REPRESENT FAITHFULLY THE VIEWS OF ALL and fair election, and the courts which have patiently heard but and again that it is sufficiently deep-rooted to survive short-sighted www.facebook.com/Prospect.Mag CONTRIBUTORS AND INTERVIEWEES. THE VIEWS REPRESENTED IN THIS REPORT ARE NOT NECESSARILY THOSE OF ANY OF PROSPECT PUBLISHING LTD, THE BINGHAM CENTRE FOR THE RULE OF LAW, JONES DAY, THE JONES DAY FOUNDATION OR THE CITY OF LONDON CORPORATION, NONE OF WHOM dismissed the defeated President’s legal challenges. Together they attempts by governments to set it aside for political advantage. IMAGES ARCHIVE/PA COVER IMAGE © AARON CHOWN/PA ACCEPT RESPONSIBILITY FOR ERRORS OR OMISSIONS IN THE REPORT OR THE CONSEQUENCES THEREOF. 2 THE RULE OF LAW PROSPECT | JANUARY/FEBRUARY 2021 JANUARY/FEBRUARY 2021 | PROSPECT THE RULE OF LAW 3 A NEW CHAPTER IN A LONG STORY A PANEL OF PRECONCEPTIONS Today’s thriving legal services build on a legacy 800 years in the making The “review of judicial review” will enhance the government’s power and diminish yours ROBERT BUCKLAND LORD CHANCELLOR AND SECRETARY OF STATE FOR JUSTICE DAVID LAMMY SHADOW LORD CHANCELLOR AND SHADOW SECRETARY OF STATE FOR JUSTICE egal services are one of the UK’s greatest exports. They are who needed our courts most were protected—including vulnerable he rule of law is a simple but the lowest number of new judicial review at the heart of our economic prosperity and a magnet for women provided with safety by Domestic Abuse Protection Orders powerful proposition. As articulated applications since 2000.

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