In November the UK’s House of Lords Constitution Committee published a report on the rule of law, arguing that legislators and the media should refrain from launching personal attacks on judges. While noting that ‘discussion and debate about court judgments and the law underpinning them is a normal part of open justice,’ the Committee said this must be distinguished from personal attacks on individual judges or on the judiciary as an institution, which are unjustified.

‘Hostility towards the judiciary’ is one element of a wide-ranging review on challenges to the rule of law considered by the Committee as part of its nine-month inquiry. The Committee also examined other significant issues such as access to justice and the perception that the law isn’t being equally applied or is being treated with disrespect, including within those institutions responsible for upholding it. The cumulative effect, it found, is declining public confidence in the rule of law and the ‘pervasive sense’ that it’s ‘under threat’ in the UK.

Since then, parts of the mainstream media and, increasingly, lawmakers, now regard an attack on judges and lawyers as a political opportunity, says Townend, who’s a barrister at Keatings Chambers in London. ‘If you don’t like a decision, the method by which we have always dealt with that is to appeal to a higher court,’ he says. ‘And there is a proper channel to ensure the quality and accountability of our judges, and that is not on the political soap box or on the front pages of newspapers.’

The Committee’s report also highlights how the rule of law is damaged by well-known problems within the current civil and criminal justice systems and in legal aid provision. ‘A crucial part of the rule of law is that […] people should be able to access the courts to obtain justice, resolve disputes, and protect their rights,’ reads the report.

Citing evidence from witnesses, the report observes that there has been widespread ‘underinvestment’ in the justice system ‘over many years’. This has contributed to, and exacerbated, the significant issue of delays and backlogs. Here the report cites criminal justice statistics showing a Crown Court backlog of 78,329 open cases at the end of June, with a quarter outstanding for over a year. The Magistrates’ Court backlog increased 25 per cent on the previous year, to 361,027 open cases.

The report also remarks on how fairness in the way the law is applied is critical, highlighting the increase in low-level crime and a perception that it’s not being dealt with. ‘Certain crimes, such as “shoplifting, car theft, cycle theft, house burglaries, low-level drug dealing”, have increased over the last few years, and have become more visible,’ says the report. Further, ‘there is a strong media and public narrative that [these crimes] have effectively been “decriminalised” due to police inaction,’ the Committee adds.

‘The absolute core of what for most people the rule of law is about […] is not only knowing the government is going to act within the law but being able to rely on other people acting within the law or, if they don’t, being held to account,’ says Lord Anderson KC, a member of the Constitution Committee. ‘Whether you are looking at non-prosecution of cases or delays in civil courts or lack of access to legal advice, for most people that is the centrepiece of the rule of law in practice.’

Talking about the ‘rule of law’ can still sound vague, however, and the Committee is calling for more public education around what it means for the UK system of government and for individuals. ‘Education is, as ever, the key,’ says Lady Laing, another member of the Committee. ‘But it is really important that the whole matter is simplified and the average person in the street and […] a young person about to leave school is given the chance to understand this.’

She adds that there should be high quality provision of education about the rule of law in schools to engage young people and to improve public understanding of – and confidence in – engaging with the justice system. ‘The processes of government and our constitution need to be demystified,’ she says.

Education is a ‘key enabler’ in bolstering what is, for Townend, the ‘cornerstone of our society’ upon which everything else is based. ‘Public safety, commerce and trade, confidence in state institutions, you name it, all rest on the framework of rule of law,’ he says. ‘Cut against it, and all else fails.’

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