December 16 2020

Has Rule of Law backsliding begun in the UK?

Professor Laurent Pech, Head of the Law and Politics Department at Middlesex University, has been researching a worrying issue he has described as ‘Rule of Law backsliding’ for more than ten years.

Here, he claims there are signs suggesting that a process of Rule of Law backsliding which, in the EU, first began in Hungary before spreading to Poland, is getting underway in the UK.

Since the early 2010s, the EU has witnessed a startling breakdown in compliance with the rule of law, as some Member States’ governments systematically dismantle checks and balances in order, incrementally, to establish de facto one-party states.

My research has examined these systematic and coordinated efforts by some national authorities to undermine the rule of law, with my work especially concerned with the deteriorating situation in both Hungary and Poland.

In the last three years, we have witnessed a number of developments in the UK which are reminiscent of what we have seen in both Hungary and Poland.

For instance, the ‘will of the people’ appeal has often been used as a way to justify violations of the rule of law. The first signs of an unhealthy rhetoric in the UK could be seen too with judges and academics, and more recently lawyers, increasingly subject to abuse and intimidation tactics.

‘Enemies of the People’

In the wake of the Miller case, the attack on the judiciary and the ‘enemies of the people’ headline in the Daily Mail in November 2016 can be considered a hallmark of autocratic regimes as only an independent judicial system can enable individuals to vindicate their rights.

Similarly attacks on ‘pro-remain’ universities was another way to ensure that a counter, in the case of the UK anti-Brexit, discourse is muted.

No voices are thus left to proffer arguments against governmental policies which some may be tempted to justify in the name of ‘the will of the people’ regardless of whether they violate the rule of law or not.

A third parallel one could draw as early as 2016/17 was the attack against George Soros and his Open Society Foundations, both in Hungary as well as in the UK where Nigel Farage sought to investigate Soros funding. The anti-Semitic overtones of the anti-Soros rhetoric can be viewed as an attempt to garner the support of autocratic and nativist forces.

It would be unwise to assume that the UK legal and constitutional system will be strong enough to withstand the ongoing process of rule of law backsliding which seems to be gaining strength in the UK.

Attacking the judges and lawyers

Indeed, the election of Boris Johnson has been followed not only by worrying rhetoric but also, and more crucially, actual steps which could lead to an autocratisation by stealth of the UK.

One may refer here, for instance, to the repeated and dangerous attacks against so-called “activist lawyers” by the Home Office Secretary and the British PM himself. This kind of attacks on the legal profession not only undermine the rule of law but endangers the personal safety of lawyers.

Image of the UK Houses of Parliament with a red double decker bus in front

In this context, let me quote Sir Anthony Hooper, a retired Court of Appeal judge: “Once you’ve lost the independent legal profession, once the judges have become enemies of the people, the future health of this liberal democracy is very much at stake.”

And indeed, under the cover of this rhetoric characteristic of autocratic regimes in the making, we have also seen the unbecoming politicisation of the offices of the Attorney General and of the Lord Chancellor.

Legalising law breaking

In addition, as if this was not enough to worry you, the British government unlawfully prorogued Parliament under a false pretext and most recently, the British government, including the AG and Lord Chancellor, have defended the legalisation of lawbreaking via the UK internal market bill.

As the Select Committee on the Constitution of the House of Lords put it last month:

“Setting out explicitly to break international law in this way is without precedent. It jeopardises international obligations the UK recently ratified, undermines domestic law and is contrary to the rule of law.”

Yet more deliberate undermining of the rule of law is on the way with ongoing governmental work on judicial review and the announced review of the Human Rights Acts should be understood as further deliberate attempts to make the executive power in the UK unaccountable.

COVID-19 has changed the rules

It’s important not to overestimate the resilience of the UK’s constitutional arrangements to the authoritarian gangrene which first began in Orban’s Hungary, especially in a COVID-19 context which has made it easy for governments everywhere to bypass normal law-making procedures on a grand scale.

To avoid a process of what I have called in my research “constitutional capture” by the current political majority in the UK, it is crucial that judges, lawyers, academics but more generally all citizens, realise what the ongoing demonisation of legal professionals and dangerous legislative steps previously mentioned may lead to, that is, the progressive transformation of the UK into an electoral autocracy where authoritarian practices are hidden behind the institutional facades of representative democracy.

While multiparty elections will continue to be regularly organised, these will no longer be fair due to the systemic undermining of most democratic and rule of law minimum standards by the ruling party. 

In 2021, Professor Pech and Dr Joelle Grogan, a Senior Lecturer in UK and Public Law, will submit a REF impact case study entitled “Challenging Rule of Law Backsliding in the European Union”.

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