The rule of law is under threat from a lack of access to justice, mistrust of the legal profession and politicians, and a lack of education and knowledge, according to a new report from the House of Lords Select Committee on the Constitution.
The report – the result of a nine-month long inquiry including 14 evidence sessions, 115 written submissions and consultations with legal professionals, schools and teachers – identifies the most pressing challenges to the rule of law in the UK and recommends immediate action that should be taken by the government to halt increasing distrust and lack of confidence in institutions.
Political rhetoric that judges and the justice system are biased and not to be trusted ‘creates a pervasive sense that the rule of law is under threat’, the report claims, further fuelled by ‘stubbornly embedded’ delays and backlogs. ‘For many, their trust in politicians and in the institutions of state has been damaged’, the report adds.
“Everyone, but particularly those in public life, needs to be proactive in strengthening our rule of law culture, and this must start now. Failing to do so risks the rise of extremist political parties, growing antipathy towards democracy, and, ultimately, creating space for a dictatorship of arbitrary rule.”
The report echoes some of the findings of the recently published report from the Ministry of Justice, which detailed the economic success of the legal sector both nationally and internationally. The Select Committee describes the UK’s international reputation for the rule of law as ‘fundamental to its success as an international financial and professional services centre’, adding:
“The UK enjoys significant economic benefits stemming from its international reputation for upholding the rule of law, which means that our law and legal jurisdiction is widely utilised. It makes the UK an attractive place to do business and in which to invest, which supports a thriving legal sector.”
But the authors warn that the government’s ‘increasing tendency’ to frame the activity of organisations exercising their legal rights as an obstacle to progress damages the public perception of judicial review and the rule of law more broadly.
Singling out the recent announcement from the Ministry of Housing, Communities and Local Government that it would build on existing measures to cut back meritless legal challenges for major infrastructure projects , the report said the power to hold government to account is a vital aspect of the rule of law:
“The existence of the judicial review process also contributes to a culture of lawfulness and safeguards the rule of law, as the possibility of judicial review encourages the Government to act in accordance with legal advice.
“The Government should refrain from presenting the judicial review process as a blocker to government action, as this risks undermining the rule of law culture which the Government has committed to upholding. Where the Government considers the law to have become overly complex or otherwise to be unreasonably inhibiting action it can raise these concerns and ask Parliament to legislate but should do so without calling the process of judicial review or the decisions of the judiciary into question.”
An increasing distrust of the legal profession, with lawyers as well as judges receiving threats, intimidation and in some cases physical attacks, has been accelerated by ‘massive inequalities and lack of access to legal advice’ coupled with high-profile examples of unethical practice, the report found.
“One such high-profile event that has damaged trust in the legal profession and its ethics is the Post Office Horizon Scandal. Professor Richard Moorhead, Professor of Law and Professional Ethics, University of Exeter, gave a lecture in May 2024 where he was scathing about the role of lawyers in the scandal.
“He argued that their role reveals a professional orthodoxy that values “deliberate concealment, a lack of candour, the retelling of half-truths, and the massaging of risk” to “suit the interests of clients stretched beyond propriety”.”
The Legal Services Board (LSB) also informed the committee it had identified several activities that fall short of ethical standards and had undertaken research to understand the reasons for poor ethical conduct.
It found that the approach of legal professionals is shaped by education, training and their workplace experiences, and ‘beyond standards set through codes of conduct and guidance, there is limited bespoke education and training and regulatory support, both at the point of qualification and throughout an authorised person’s career, to help them specifically identify and understand how to apply their professional ethical duties and/or get support if they need it to maintain them’.
Training in legal ethics hasn’t been updated to reflect modern concerns, one witness pointed out, with another noting ‘we’re still working on the basis of an ethical system which was set up in the 70s and hasn’t been properly revised and reviewed’.
The ethical training of lawyers should be reviewed and strengthened by the relevant professional bodies, the committee said, with lawyers receiving dedicated ethical training throughout their career.
The lack of access to legal advice and the limited resources of free services is a significant issue, the report found, with services such as Citizens Advice, Advicenow and law centres overwhelmed and struggling with a lack of adequate and sustainable funding whilst facing unprecedented levels of legal need.
The issues are exacerbated by millions of pounds of public funding ‘wasted’ on the funding of signposting services that don’t offer legal advice or support, the committee heard.
‘Accessible and affordable legal advice is a key enabler of the rule of law’, the report said.
“It ensures that people can understand and enforce their legal rights, thus facilitating effective access to justice. Giving this advice at an early stage can help people to navigate their legal problems before they escalate and take longer to resolve. In so doing, it can relieve pressure on the later stages of the justice system, including the courts.
“The legal advice sector is under pressure. When taking funding decisions in relation to the provision of legal advice, the Government should take into account the knock-on benefits and cost savings that can be made in the wider justice system.”
The ‘dramatic’ and ‘steep’ reductions in scope and spending of civil legal aid have led to millions falling into a justice gap, unable to qualify for legal aid but without independent funds to pay for legal advice, the report found.
The impact has been evidenced by increasing numbers of litigants in person, with the proportion of disposals in family law cases between July and September 2024 where neither party had legal representation reaching 38%.
‘Dealing with litigants in person also places significant pressure on the courts and their users by reducing the efficiency with which cases can be heard’, the report noted.
“Their cases become more complex and take longer to deal with as they lack professional knowledge or experience of the courts and so require further time and explanation to navigate the court proceedings.”
As well as being ‘a significant threat to the rule of law’, the high costs and limited resources result in ‘complete sections of our society and communities’ have no real access to the law, with disempowerment and alienation leading to people taking matters into their own hands, ‘including threats and violence’.
“Delays and backlogs in civil justice need to be urgently addressed by the Government in order to maintain public confidence in the justice system and to safeguard timely access to justice. A continuing failure to address these issues would be a significant threat to the rule of law in this country.”
Access to justice does not always require access to a court, and, in many instances, particularly within civil and family law, alternative dispute resolution mechanisms, such as mediation or arbitration, may be appropriate, the report suggests.
“Alternative dispute resolution mechanisms can provide an effective way through disputes, which may be ‘entrenched’, without having to go through the full court process. As Baroness Hale described, using the example of family law, sometimes a third party is needed simply “to give sensible advice, calm things down, do a negotiation between often very emotionally upset people and achieve an agreement between them.”
The role of technology in improving access to justice and the digitalisation of paper-based processes should be a priority, the committee said.
“The continued reliance on paper in some parts of the court system contributes to inefficiencies and delays. The digitisation of remaining paper-based processes should be a priority.
“The creative use of alternative technologies should also be embraced as a contribution to tackling the backlogs and improving the experience of those engaging with the justice system. Technology can, and should, be used to improve administrative functions and ensure that the time of qualified legal advisers is best used to help those who seek their support.
“The Government should support advice providers to embrace these opportunities.”
Acknowledging the concerns about the increased use of technology, both in terms of individuals who are digitally excluded and the security risks involved, the committee recommends government and industry bodies should encourage the development of such tools, but ensure that they are accompanied by appropriate safeguards.
Public legal education which begins at a young age and adapts to each stage of an individual’s life ‘is a key enabler of a rule of law culture’, the report found.
“It ensures that people understand the rule of law and how it relates to their lives, helping them to understand its importance and the benefits that it brings them.”
The report has been welcomed by the Law Society of England and Wales, with the society’s president Mark Evans calling it ‘a vital contribution’.
‘The Law Society has long campaigned for the rule of law to be supported as essential to our common good and economy and has contributed significantly to this report’, he said.
“Important elements highlighted in the report include the need for government ministers to comply with the state’s international obligations, ensure timely access to the courts and hold the government to account through parliamentary and public scrutiny of legislation.
“The Law Society also supports the committee’s recognition that the government needs to improve its support for legal aid and early legal advice, something we have long pushed for. The justice system must be sustainably funded to provide the public service our communities need.”
“The Law Society’s statutory responsibility for supporting the rule of law has never been more important. We will continue to show how central the rule of law is to people’s everyday lives and livelihoods, push for practical government support for the justice system, and promote respect for lawyers and the public service they provide.”
