Guidance – Constitutional, Public Law, and Rule of Law Work under the Policy Programme

Guidance – Constitutional, Public Law, and Rule of Law Work under the Policy Programme

The Foundation recognises that the UK has recently experienced and continues to undergo a number of constitutional changes, including:

  • Under the EU (Withdrawal) Act, most types of ‘retained EU law’ effectively have the status of delegated legislation in UK law, and can be changed by delegated legislation made by Ministers using powers under existing and new Acts.

  • Brexit requires changes to devolution arrangements in the UK constitution, including the development of ‘common frameworks’—a new constitutional concept.

The Foundation also notes the relationship between public law and the proper exercise of Executive power by government:

  • Public law plays an important constitutional role in terms of the rule of law because it is the body of law that applies rule of law principles to the Executive.

  • Public law governs the use of delegated law-making powers by the Executive, including new Brexit law-making powers.

  • When Government decisions are made on individuals’ rights via data processing, it can be hard for individuals to know whether their data were accurate or processed correctly, and hence to assess whether the government decision was made lawfully and correctly, i.e. meets existing public law standards.

In light of this context, TLEF supports work to encourage engagement with and promotion of constitutional, public law, and rule of law principles, in particular:

  • Mechanisms and opportunities for civil society to engage with constitutional, public law, and rule of law questions, including in relation to the devolution settlements.

  • Improving understanding of public law with a particular focus on the proper and lawful exercise of public power by the Executive (Ministers and Government departments), including government use of data processing.

  • Constructive engagement with policy and law-making processes, promoting rule of law principles or contributing technical legal expertise.

The Foundation’s mission is to help people to understand and use the law, and the rule of law relates to both understanding and using the law. In order for people to understand the law, law must be accessible — it must be publicly available, and it should be clear. Similarly, people cannot use the law if it is inconsistently applied or there are no effective remedies. Accordingly, there is a strong interrelationship between the rule of law and TLEF’s mission. 

The following rule of law principles underpin the policy programme, which seeks to promote the policy and constitutional environment that enables The Foundation’s overall mission to help people understand and use the law:

  • Legality

    • Public authorities should act on the basis of and in accordance with the law.

    • When legislative power is delegated to the executive, the objectives, contents, and scope of the delegation of power should be explicitly defined.

    • The process for enacting law should be transparent, accountable, inclusive and democratic.

  • Legal certainty

    • Law should be accessible.

    • Laws should be written in an intelligible manner.

  • Public power should be exercised properly and not misused.

    • There should be legal safeguards against arbitrariness and abuse of power by public authorities.

    • Failure to provide reasons for decisions when they affect the rights of individuals should be a ground for challenging the decision in court.

  • Equality before the law, non-discrimination, and fundamental rights

    • Law should apply equally to all, save to the extent that objective differences justify differentiation.

    • The law should afford adequate protection for fundamental rights.

  • Access to justice

    • There must be sufficient guarantees of judicial independence.

    • Formal requirements, time-limits, and court fees should be reasonable.

    • Individuals should have an easily accessible and effective opportunity to challenge a private or public act that interferes with his/her rights.

    • Individuals should have access to legal assistance.

Guidance - Policy Programme





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