More than a few dark clouds have been gathering on the legal horizon over recent months.
I began to practise law over 33 years ago (and 1 or 2 colleagues think I am still practicing! – the old ones are the best). I was always proud that, by and large, we lived in a Country where we still performed highly on the international comparative front for respect for the rule of law.
This meant that all of our people and our institutions and organisations – including, and perhaps most importantly, the government – were accountable to laws that were publicly promulgated, equally enforced, independently adjudicated and consistent with International Human Rights principles.
It troubles me that Parliament has voted recently to permit the Government to break international law purely because it feels that it can’t get what it wants in negotiations with the EU. Nothing to do with Brexit – it simply does not set a good precedent, to tell a world with which you are trying to negotiate trade deals, that the first thing you will do if you don’t like them is break the laws that are meant to keep us all in check.
Then we have the ‘Spy Cops’ legislation – the new law relating to ‘covert human intelligence sources’. The law will say that a state agency will be able to authorise the commission of criminal offences by its agents.
Worryingly, the law’s scope is unlimited. Might robbery be authorised? Murder? All in a good cause, mind.
Perhaps worse, it isn’t only security and intelligence services that can authorise criminality – the Food Standards Agency and the Gambling Commission will have similar powers!
The Government seeks now to undermine the process of Judicial Review. It is not hard to see why: it has lost a couple of cases (notably in relation to Tribunal fees and prorogation of Parliament) where the Courts have made it clear that the Government has overstepped the mark.
I would like to think that is what the Courts are for. There is some longstanding good advice to Government about legal cases: you ought not to clap if you win them; you ought not to boo if you lose them.
On a personal note, it is hard not to be offended as a lawyer by the criticisms levelled by the Home Secretary and the Prime Minster about ‘lefty activist lawyers’ who apparently are bringing the system of justice into disrepute.
As the Senior Judge in England recently pointed out, repeated criticism of lawyers can have a ‘chilling effect’ on the Rule of Law. The Chair of the Bar Counsel and the Law Society President have made the same point. An attack on immigration lawyers in London not long ago was a direct result of this sort of incitement by senior politicians who really ought to know better.
Burnett LCJ told Parliament’s Justice Committee that ‘the vitality and independence of the legal profession is an essential hallmark in a society governed by the Rule of Law…..lawyers have duties to act fearlessly for clients and to Courts and shouldn’t be attacked for doing so.”
It seems to me that those in power would do well to remember that they will not always be in power. The Courts that have acted to stop some of the most egregious oversteps will no doubt be acting in just the same way – but against a different party – when another government is in power a few years down the line.
Fear of an unhelpful decision of an independent Judiciary is not unique to the political right; but it is exactly such sort of decision making that keeps parties of all political flavours on the straight and narrow.