The Rule of Law and the right to be consulted

This is Blog no 84

In Lord Hermer, we now have an Attorney General who is a strong defender and champion of the ‘rule of law’. After some recent appointments, that, of itself, is reassuring and this blog is a commentary upon the Bingham lecture he recently gave entitled ‘The Rule of Law in an Age of Populism’.  

I believe it is one of the most important speeches delivered in recent years – and ought to be recommended reading for everyone concerned with the evolution of our democracy.

His argument is simple. Both nationally … and internationally, we face immense challenges, whether the threat of climate change, the development of AI, growing inequality, or increased migration – and we need a firm commitment to the rule of law, to even begin to tackle them. Unfortunately, populist politicians prefer to pick and choose which laws to observe and which to undermine according to what suits their short-term tactical purposes. To combat these and other threats, Hermer considers three themes.

The first is rebuilding the UK’s traditional role as a leader in international law; a familiar topic of controversy as some politicians argue for withdrawing from the European Convention of Human Rights. The current Prime Minister and his colleagues pledge to retain it.

The second theme is defending and strengthening Parliament’s role in upholding the rule of law.     Thirdly, he talks about promoting a rule of law culture, which builds public trust in the law and its institutions. I want to focus on the second and third.

Parliament is sovereign – we all acknowledge this. It can authorise Ministers to impose unpopular measures or raise unpopular taxes. It can also pass legislation which significantly impinge on our rights and behaviours; the COVID pandemic demonstrated how easy it is to sweep away all manner of freedoms. The safeguard is that parliamentary procedures, the processes of transparent legislative scrutiny, and the vigilance of the media and civil society ensures a degree of informed debate. Without these, an Executive with a reliable majority can affect our lives profoundly as an ‘elective dictatorship’

This is why we have, over generations, used statutory obligations to consult, as a mechanism to regulate decisions that are taken by hundreds of public bodies, executive agencies, local authorities, health trusts and so forth. The deal is straightforward. ‘We give you these powers … but in return you have to demonstrate that you have listened to stakeholders’. To stop these from being ignored or abused, judges have developed a massive corpus of legal precedents based in part on the Gunning Principles, with hundreds of cases decided at judicial reviews over forty years. When Lord Hermer cites the rule of law as being one of the UK’s competitive advantages in terms of attracting foreign investment, no doubt he has in mind that part of our expertise lies in having the world’s most developed jurisprudence on the law of consultation! By and large, the law is clear and there is comparative certainty.

There are, however, other types of consultation. This is when Ministers choose, or are expected, to consult as part of policy-making, or in preparation for legislation. Here we are in far less clear waters … and the Attorney General knows it.

In his own words,

“It is the importance of this model of consent that explains in very large measure why I have been so concerned, on entering Government, to improve the standards we adhere to when we make policy and law – and specifically to ensure that the processes we adopt support the rule of law.”

He is rightly exercised over the risks when Parliament uses secondary legislation to administer contentious policies. He mentions that “excessive reliance on delegated powers, Henry VIII clauses, or skeleton legislation, upsets the proper balance between Parliament and the executive.”

For an example, he might like to look at the High Court judgment of the case of R (National Council for Civil Liberties) v Home Office earlier this summer. (See Blog 70) It struck down Suella Braverman’s regulations to toughen up the law on demonstrations because the consultation was ‘one-sided and not fairly carried out’. Very experienced and respected Judges concluded that:- “At an elementary level of fairness, if the views of enforcement agencies are sought and obtained, then the views of those negatively affected by enforcement should equally be canvassed.” I find it astonishing that the new Government – with Lord Hermer as Attorney General - is now seeking to overturn this judgment by going to appeal.

It is not as if this is the only such case. In recent months another judicial review found the Home Office was wrong in refusing to implement some of the recommendations of the Windrush Lessons Learnt Review without consultation. (See Blog 78) And in recent years Government lawyers have regularly lost judicial challenges to consultations that have been badly handled by Ministers – or most likely, their officials.

I am therefore delighted that Lord Hermer used his lecture to announce:

 “I will issue an amended guidance for assessing legal risk across government that will seek to raise the standards for calibrating legality that the thousands of brilliant lawyers working in every part of government activity apply to deliver for the people of this country.”

I have yet to see the new Guidance, but it should help.

More important, though, is the confusion that surrounds the question of when politicians are expected to consult … and when not. I have advanced my ideas for reform (See Blog 73) and sooner rather than later, I believe that those who want to restore trust in politics will have to look at Government consultation practices.

That is why Lord Hermer’s passionate plea to promote a rule of law culture is so welcome. It comes at a time when many voices question our adhering to the legal frameworks we have erected because they are inconvenient. Planning is a topical example. For seventy years, our system of Town and Country planning has relied upon a degree of local consent that includes residents’ rights to be consulted. In its eagerness to build more houses, the Government must resist the temptation to curb these rights to any significant extent.

When it comes to infrastructure projects, the pressure is even more intense. Our system correctly confers rights upon communities and individuals to be properly heard whether it is on nuclear power stations, high-speed rail, airports or (to be really topical) hundreds of pylons. Hence the recent review by Lord Charles Banner and its recommendations that the judicial system adapts to meet the objectives of speed and certainty.

The Banner report is very welcome. Some feared it might conclude that the problem was that people have been given unrealistic rights to question and influence projects which, as a nation we need to expedite, and that they should be watered down. He did no such thing and focused his attention on ways to improve the judicial process. That is absolutely the right thing to do. We should not dismantle the fragile edifice of rights and duties that have been painstakingly erected over decades. We just need better machinery to handle the inevitable disputes about their interpretation and application to changing conditions.

Lord Hermer rightly says “Education has a crucial role to play. We must take these messages to our schools and wider communities”. Hallelujah. After advocating better civics education for years, some of us will be thrilled beyond words to find we now have a senior Government figure likely to stay in office for more than five minutes – and who agrees!

Just think about the difficult decisions that lie ahead in the field of climate adaptation alone. How can politicians hope to tackle the troublesome trade-offs that will certainly arise without seeking as much consensus as possible? That means dialogue with differing viewpoints able to argue it out in safe spaces. It means genuine consultation on well-researched options and inclusively conducted so that all opinions are respected and taken into account. Nothing alienates the public more than finding that key choices have been made without any attempt to ascertain their views. The simple truth is that decisions are better after a meaningful consultation. Moreover, a Government with a reputation for listening has a greater chance of being re-elected.

Even for that reason alone, let’s hope that Lord Hermer and his Cabinet colleagues recognise that his mission to reinforce the rule of law must not end with a solitary lecture – no matter how well-presented. He needs to establish a better culture of consultation across the whole of Whitehall, and rein in those Ministers whose desire for urgent action tempts them to cut corners.

Every administration occasionally finds consultation frustrating, but every time they ride roughshod over the right to be consulted, they help undermine the confidence and trust we need citizens to have in our democracy.

The Attorney General holds out the hope that this can get better.

I trust he is a man of his word.

Rhion H Jones LL.B

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Commentaries are prepared primarily to help consultation practitioners take account of developments in the law and to guide them on situations where legal advice should be sought. They are no substitute for reading Court judgments, seeking professional advice or studying statutory provisions or associated Guidance.