“ ‘This opportunity must be seized’ – why Brexit offers a once-in-a-generation opportunity to improve the Rule of Law”

Whatever one’s views on the merits of Brexit, from the perspective of the rule of law, it represents both a threat and an opportunity. The threat is that time pressure may result in hastily drafted and poorly scrutinised laws that unintentionally subvert the rule of law. The opportunity is that the massive constitutional and legal change may be used to improve our laws.

It is important to the UK’s prosperity that this opportunity be taken. The UK needs to ensure that its economy is competitive and an important factor in competitiveness is the level of respect for the rule of law. If we want businesses to choose the UK as the destination for their investments, we need to make our laws clearer and more predictable and to reduce excessive executive and regulatory discretion.

This is not the responsibility of a single institution. As the body ultimately responsible for the UK’s laws, Parliament will have a pivotal role. However, the role of the Government, various regulators and the judiciary will be critically important. The wider business community also has a role to play.

We cannot simply list everything that needs to be done, take the necessary steps and then bask in the satisfaction of a job well done. Promoting the rule of law is a never-ending process. Nonetheless, in a report published today, Linklaters identifies 19 steps that can and should be taken in order.

Parliamentary working practices require reform. While Parliament theoretically has the ability to scrutinise much secondary legislation, the level of scrutiny is often unsatisfactory. Parliamentary committee processes need to be radically changed and MPs need to have more resources to assist them, more training in how best to perform their task and more access to specialist expertise.

The key immediate action for the Government is to signpost the direction of travel. Through what is now its “One in, Three out” policy and “Red Tape Challenge”, the Government has sought to relieve businesses of unnecessarily regulatory burdens. A third limb needs to be added: a “Rule of Law Challenge”, an active policy commitment to improve the predictability and fairness provided by legislation and regulation, to bring rule of law issues higher up the list of policy priorities and thus to rebalance the UK’s laws.

More specifically, the Government needs to improve the accessibility of the law. Although there is an official website setting out UK legislation (legislation.gov.uk), it is not sufficient. We need a continually updated interactive data-base containing all current legislation with hyperlinks to definitions of defined terms and a “time travel” feature.

The judiciary’s role is largely obvious. However, it is important that excessive judicial activism is avoided. The sovereignty of Parliament, the doctrine of precedent and judicial reluctance to strike out in new directions are crucial to the predictability of the law. In recent years, there have been occasions on which the UK judges have been prepared to use general principles to support interpretations of legislation that have been perceived to subvert the will of Parliament. Whilst arguably understandable in the specific cases, this carries material rule of law concerns.

Finally, we must not forget business. Respect for, and support of, the rule of law is part of being a responsible business. Respect should be a given but businesses should aspire to more: they should consider how they can help Parliament, the Government and regulators to make better law by assisting them in understanding the relevant issues. Frequently, this will be best done collectively through trade associations or networks such as the Business Network of the Bingham Centre for the Rule of Law. Business could also help itself by explaining the rule of law issues that impact specific decisions more publicly and more clearly.

Brexit will not at a stroke give the UK the ability to change its laws completely and, in any event, such wholesale change would be undesirable. But it will provide a once in a generation opportunity to make material improvements. We need to work together to ensure that this opportunity is seized. If we strive better to respect and to enhance the rule of law, it will enhance our prosperity.

An edited version of this piece by Richard Godden, partner, was published in Legal Week on 8 December 2017.