“The rule of law is under threat in the UK” says House of Lords Constitution Committee

The House of Lords Constitution Committee has published a report looking at the state of the rule of law in the UK and concluding that it is “under threat“. You won’t be surprised to hear that immigration law is mentioned several times as an area of concern, as are attacks on judges and the state of legal aid.

I have pulled out some immigration related quotes below, if you want to read the whole thing, you can do that here.

109. The Lady Chief Justice described newspaper articles “about ‘outrageous judicial overreach’, ‘lefty’, ‘liberal’, ‘outrageous’ judges and ‘crazy’ decisions” as examples of unacceptable personal attacks on judges. Frances Gibb described how “[e]very so often, you get an eruption – often in the tabloid press – against judges”. These attacks often involve charges that judges are “interfering in politics” when their decisions are alleged to conflict with a particular political agenda. This unnecessarily casts doubt on their impartiality, by providing the impression that they are overstepping their role and encroaching on the role of the Government or Parliament to make political decisions. However, judges are enforcing the law as decided by Parliament and if “the law is wrong, it is Parliament’s prerogative to change it”. Whilst there are examples of the media criticising individual judges throughout history, Frances Gibb noted that the negative discourse around judges “may have slightly worsened” in recent years and definitely had with regards to immigration cases.

148. A participant in our roundtables with lawyers described how this complexity is compounded by frequent changes in the law. They said, referring specifically to immigration law, that “things get really, really complicated very quickly because the immigration legislation changes all the time … I’m an advisor and I’m struggling to keep up. I don’t know how non-lawyers keep up with it.”

164. Several witnesses argued that ouster clauses are an example of the substance of legislation challenging the rule of law. Ouster clauses are provisions which seek to prevent the courts from adjudicating on a decision in certain circumstances in which they would otherwise have done so. They have, in recent years, been included in several pieces of legislation, including, the Dissolution and Calling of Parliament Act 2022, the Illegal Migration Act 2023, and the Safety of Rwanda (Asylum and Immigration) Act 2024. However, we heard that ouster clauses “are a direct affront to the rule of law and the principle of access to justice”. This is because, in removing the ability of the courts to determine whether or not the Government has acted lawfully, it creates the space for the Government to break the law. This is in direct opposition to the core rule of law ideals that there should be government according to law and that recourse to the courts should be available to enforce this.

173. However, others suggested that rule of law scrutiny of legislation is not always effective. It can be hindered by legislative practices, such as the fast-tracking of bills or the use of placeholder clauses, both of which have become increasingly common in relation to government bills, limiting the opportunity for detailed and rigorous parliamentary scrutiny. The quality of scrutiny can also be affected by the volume and complexity of legislation, and the level of party control. One piece of legislation passed by Parliament that was frequently referred to in evidence as undermining the rule of law was the Illegal Migration Act 2023. A group of academics from the University of Leeds told us that this Act is problematic for several reasons, including that it includes retrospective provisions, permits arbitrariness in executive decision making, and includes several ouster clauses restricting judicial oversight.

193. These challenges mean that it is often not sustainable for firms to undertake legal aid work, and the number of legal aid providers has gradually declined. This has led to ‘legal aid deserts’, areas of the country (particularly rural and coastal areas) which have no legal aid providers. Other areas have ‘legal aid droughts’, in that they have a small number of legal aid providers, but these are in high demand and do not always have the availability to take on new work. According to the Law Society of England and Wales, the percentage of people who are unable to access a legal aid provider in their area for housing issues is 44%, rising to 63% for immigration, 71% for community care, 85% for welfare benefit issues and 90% for education issues.