AT Westminster this week, I led a debate calling on the Lord Chancellor (England’s Justice Secretary) to uphold his oath to respect the rule of law. Call me old-fashioned, but if someone was questioning whether I had broken my oath of office I would turn up in person to defend myself.
However, he didn’t and sent a junior minister along instead, who singularly failed to tackle any of the issues I raised.
The lawyers left standing in the UK Government, such as they are, are cosily cocooned in denial. But, as the length of time it took to replace the Tories’ Scottish law officer shows, lawyers in Scotland, even those with Tory sympathies, were very reluctant to take the Queen’s shilling to defend this UK Government’s track record.
Concern in the legal profession about the Westminster Government’s attitude towards the rule of law is widespread. Last week, I spoke at a webinar about the implications of the Internal Market Bill for the rule of law.
The event was organised by the International Bar Association’s Human Rights Institute and was attended by 1000 lawyers from across these islands. Other speakers expressing concern about the bill included such well known “lefty lawyers” as Michael Howard QC, the former Tory leader.
Lord Neuberger, the last but one president of the UK Supreme Court also spoke. He said that the UK Government’s Brexit strategy was driving the UK down a “very slippery slope” towards “dictatorship” or “tyranny”. He’s right.
The Lord Chancellor is required to take an oath to respect the rule of law that no other member of the Cabinet is required to take. Yet since assuming office in July 2019, Robert Buckland QC has presided over a year as yet unsurpassed for challenges to the rule of law from his Cabinet colleagues.
From the defeat in the Supreme Courts of both Scotland and the UK over the unlawful prorogation of Parliament, to the international disgrace occasioned by the plans to break international law in the Internal Market Bill, its been a remarkable year.
The fall-out from the prorogation case and the UK Government’s repeated defeats in the courts in asylum cases has led to high-level attacks on the legal profession and the judiciary and there are now proposals to restrict the right to judicial review of government actions.
Yet while the UK Government’s Scottish law officer, the Advocate General, resigned with a letter informing the PM that he found it increasingly difficult to reconcile his obligations as a law officer with the Government’s policy intentions, the Lord Chancellor has remained in office.
In addition to the Internal Market Bill, we currently have before Parliament two other bills which are unprecedented in legal terms – the Overseas Operations Bill and the Covert Human Intelligence Sources (Criminal Conduct) Bill – both of which seek to create exemptions in the criminal law for the military, and law enforcement agencies and their informants to prevent them from being prosecuted for crimes in the same way as the rest of us.
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Meanwhile, pending re-assessments of the scope of judicial reviews and the Human Rights Act threaten to limit the ability of British citizens to challenge unlawful actions of the Government in court. At the same time, the Law Societies and Bars of Scotland and England and Wales have expressed trenchant concerns about the rhetoric employed by Home Secretary and PM towards the legal profession. On September 3, Priti Patel tweeted that activist lawyers were frustrating the removal of asylum seekers from the UK.
Days later, an immigration solicitor was the subject of a violent racist attack at a London law firm and the Law Society of England and Wales wrote to Patel warning her that inflammatory rhetoric has consequences. Undaunted, she doubled down on her rhetoric at the Tory Party conference, with the PM as her cheerleader-in-chief.
IN her conference speech on October 4, the Home Secretary criticised asylum seekers making “endless legal claims to remain” and moaned about those who “lecture us on their grand theories about human rights”, as well as “do-gooders” and “lefty lawyers”.
The next day, in his conference speech, the PM applauded her sentiments, saying that the Government was changing the law and “stopping the whole criminal justice system from being hamstrung by what the Home Secretary would doubtless – and rightly – call the lefty human rights lawyers, and other do-gooders.” The leader of the Faculty of Advocates in Scotland, Roddy Dunlop QC, was so concerned about these comments that he wrote to the Prime Minister pointing out that “whether the topic is immigration, or crime, or the constitution, lawyers that act against the state are not being “lefty”, nor “activist”: they are doing their professional duty ... in this country (and the same cannot be said of all countries), instances of violence against lawyers are, fortunately, rare.
“However, in a climate of increasing populism, this sort of rhetoric is not only facile and offensive: it is potentially harmful. With great power comes great responsibility, and I have to say – with great respect – that I simply cannot fathom why it is thought in any way appropriate to attempt to vilify, in public, those that are simply doing their job, in accordance with the rule of law.
“I would accordingly, and again with great respect, ask each of you to eschew such unhelpful language, and to recognise that challenges to the executive are a necessary part of our democracy. Anything less would be a confession that we no longer live in a democracy.”
Now, while I am happy to be called a lefty lawyer, the Dean of the Faculty of Advocates would, I am sure, wish to remain politically neutral. Therein lies the power of his unprecedented letter. It will be interesting to see what kind of reply he gets from the PM, but for now I would wholly endorse the Dean’s view that the problem with dog-whistle politics is that the dogs sometimes react.
The Ipsos Mori poll showing support for Scottish independence at 58% shows the extent to which Boris Johnson’s Government is held in contempt in Scotland. It is also a massive vindication of all those in the SNP and the wider Yes movement who have worked to persuade more of our fellow Scots, new and old, to our cause.
To persuade yet more to join us, we must be vigilant to re-assure them that in an independent Scotland the rule of law will be respected and that, while no-one will be above the law, we will always recognise the need for due process, fair trials as opposed to trial by media and the quality of mercy.
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Callum Baird, Editor of The National
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