It is no surprise that I am writing for a second week running on the rule of law. Regardless of which side we are on in our great national schism, it is evident that our institutions are being tested to their limits.
Last week, I wrote about the independence of the judiciary. That issue may grow hotter if the government tests parliament’s no-deal Brexit law in the courts, as is mooted.
This week, I want to add the following to the mix of legal issues being tested: the commonly accepted principle that every citizen is subject to the rule of law. It arises out of speculation – and it is no more than that - that the prime minister may refuse to obey a law obliging him to request an extension from the European Union to Article 50. I guess it is likely that he will obey. He has the option of resigning, or testing the case in the courts, or indeed of fully obeying. New options appear daily.
I am not interested in the politics of the question, which will appear differently to us depending on our Brexit views, but rather on the consequences for the rule of law. It may never happen, but I want to address our role in readiness should it take place.
As it happens, I am in Fiji when writing this – no, not on a dream holiday, but at the annual convention of the Fiji Law Society. This year, it was a joint convention with the International Bar Association (IBA), and I was one of the speakers on the theme being promoted here by the IBA, namely assistance to developing countries regarding the consequences of the globalisation of legal services.
Interesting issues arose. For instance, climate change is at the top of the Pacific islands’ agenda. They are suffering more cyclones, and the islands are slowly sinking below the waves. The president of Fiji, in his keynote address, specifically mentioned Fiji’s fear of having to cope with climate change refugees.
The Chinese government’s Belt and Road Initiative (BRI), a massive global investment scheme much criticised for being imperialistic, and for loading developing countries with debt, is another. There were representatives from the BRI lawyers’ grouping at the conference. The Chinese government is pitching itself to Pacific island governments at a time when Australia, the traditional power, is retreating.
But the most interesting session was the last one, on ethics. It began in an ordinary enough way, until someone mentioned ‘the elephant in the room’. This turned out to be the assault on the rule of law by the Fiji regime installed by the 2006 military coup, and the mixed response of the legal profession to the regime’s actions. A full background to the way that the coup affected the legal profession, and its response, can be found in a report written by the IBA in 2009, called ‘Dire Straits: A report on the rule of law in Fiji’. (It should be added, for those unfamiliar with Fijian politics, that there was an election in 2014 which brought Fiji back to democracy.)
The discussion on the rule of law began with mild finger-pointing at those who had not done enough to oppose the coup regime. But the president of the Fiji Law Society ended the bad blood with a powerful response in which she said that some had stood up to the regime and some had not. But the finger-pointing at those who had not done enough should stop, because in truth every member of the legal profession should have stood in solidarity together in support of the rule of law.
And that is a message for us all to consider in these mould-breaking times. We should be ready, both as the Law Society and as individual solicitors, in case the prime minister does disobey the law. It is then that I believe that leavers and remainers in the legal profession should put aside their differences and come together, in solidarity for the rule of law, as explained by the Fiji Law Society president.
We don’t care how vets or doctors respond to prime ministerial disobedience. They don’t have it as part of their mission to uphold the administration of justice and the rule of law. But we do. We can have legitimate differences about whether it is in the interests of the UK to remain in the EU or to leave it, or indeed how to leave it, but we can have no differences about whether the prime minister is above or subject to the law.
It would be wonderful if, in that action, we could show the rest of the UK that it is still possible for leavers and remainers to come together, in defence of a higher principle.