It seems that the culture war brought on by Brexit is not going away, despite the prime minister’s pleas for unity, and his apparent jettisoning of the word ‘Brexit’ itself. More to the point, it seems that the culture war is about to hit lawyers and the legal system.
The most recent flashpoint was the Court of Appeal’s suspension of the deportation of criminals to the Caribbean. We are told that the prime minister’s chief advisor called the decision ‘a perfect symbol of the British state’s dysfunction’, that there needs to be ‘urgent action on the farce that judicial review has become’, and, in what may send a chill down some spines, that the media and parliamentary response to the case ‘shows they still haven’t understood what the last few years has been about, the country outside London is horrified but rich London is cheering the lawyers’.
If we are in any further doubt, the Financial Times reported, in relation to the new governmental constitutional review to be overseen by the Cabinet Office headed by Michael Gove, that the same chief advisor ‘wants to get the judges sorted and he’s naturally asked Michael to sort it out. He is trusted to do it’.
Lawyers are being blamed for other things by the new government. After the Streatham knife attack, a Number 10 briefing apparently said that ‘the system for dealing with terrorism has significant problems because of the shocking influence of lawyers on policy’.
The Law Society was always very careful during the Brexit upheavals not to take any position on the principle issue of Brexit itself. Indeed, the council is made up of Remainers and Leavers. The Law Society merely commented on the consequences of various courses of actions.
But does the Law Society have the same choice in the new culture war over judicial review and the role of judges and lawyers, following not just the deportation and terrorism incident above, but also the role of judges in the various Supreme Court cases involving Brexit?
The newly appointed attorney general has already made it clear that the Supreme Court Brexit cases are grounds for parliament to retrieve power ceded to the courts, who are now acting (according to her) as political decision-makers, pronouncing on what the law ought to be and supplanting parliament.
By way of background, the Bar Council has indicated that applications for judicial review fell by 44% between 2015 and the end of September 2019, doubtless because access was significantly restricted in 2013 over the right to use legal aid, and because of a rise in court fees. The then justice secretary, Chris Grayling, was determined to drive out ‘meritless applications’ which were used as a 'cheap delaying tactic'. So a government assault on judicial review is not new.
I hope it will turn out to be a caricature and not the truth, but it seems that to support the Supreme Court and to support judicial review may now be seen as being on the side of liberal Remainers who have been vanquished by ‘the country outside London’ in the election, and should now understand ‘what the last few years has been about’.
The president of the Law Society has already come out swinging in favour of judges and judicial review: ‘The role of the judges is to give effect to the will of parliament and the role of judicial review is to support parliament not to undermine it. The Article 50 and prorogation Supreme Court judgments were good examples of judicial support for parliamentary democracy’.
Many of us, maybe most of us, will agree with the president’s statement. But is it wise? The Law Society is taking a side in the legal culture war that is now imposed on us. Some will say we have no choice if we are to support the rule of law and the proper administration of justice. Others will reply that by supporting the judges and judicial review after recent events, we are supporting a politically partisan view of how our parliamentary democracy should operate, not supported by those who agree in general with the government.
Do the new circumstances – meaning the government’s large majority and the views of the prime minister’s chief advisor and others – indicate that we should be cautious in our approach to this debate, so that our views will not automatically be disregarded as belonging to the liberal establishment and Remainers who have lost the argument?
It would be best if the merits could be discussed without the old Leave-Remain labels being used to categorise diverging opinions. There is a genuine discussion to be had about the role of the courts in a democracy, and each person or organisation should be able to put forward views without fear of being abused or side-lined.