Disposable law, disposable lawyers

In America, it is doubtless worse. 

Former President Trump called the special prosecutor, who has indicted him on charges relating to the retention of classified documents, a coward, a thug, a deranged psycho, a big Trump hater, and added for good measure that the special prosecutor’s wife is even more of a Trump hater. He says the Department of Justice has been weaponised, we are witnessing one of the most horrific abuses of power in the history of the USA, and so on.

These words – as we saw in the January 6 insurrection as well – have echoes among his supporters. As he may have wanted, there has been a wave of calls by his supporters for violence and an uprising to defend him.

Many have pointed to some similarities in our own recent political upheaval. The politics have nothing to do with the Gazette, but the attack on lawyers and legal institutions is key for us.

I note that in all the rhetoric in Boris Johnson’s resignation statement last week – kangaroo court, political hitjob, absurd and unjust process, witch hunt to take revenge for Brexit – he found time to name and attack a lawyer who played a legal role in the Sue Gray enquiry: ‘Nor do I believe that it is any coincidence that her supposedly impartial chief counsel, Daniel Stilitz KC, turned out to be a strong Labour supporter who repeatedly tweeted personal attacks on me and the government.’

The strange note in these recent events is how lawyers and the law have been seen as disposable in the discourse not only of these two politicians, but in political discourse generally: to be picked up and used for one’s advantage at one point, and then disposed of with a few jeers the next.

Donald Trump has been particularly strong on this, using the law when it suits him and attacking it when it does not.

But let us stick to the UK. It was not so long ago that Boris Johnson, for this same Privileges Committee enquiry, was using the best legal advice that money could buy, with his supporters announcing that the David Pannick opinion he had acquired was devastating and should mean that the enquiry should be dropped. The recently knighted Jacob Rees-Mogg said at the time: 'Lord Pannick is an especially eminent QC who is not politically aligned to the Prime Minister, which makes his opinion all the more powerful.’ The recent events speak for themselves as to the devastation caused by that opinion.

But we should not think that such behaviour is limited to the former prime minister. Our current prime minister, a mere three months ago, called the leader of the opposition ‘just another lefty lawyer standing in our way’, after an email was sent out by the Conservative party under the home secretary's name, criticising an 'activist blob' of left-wing lawyers and others for blocking its attempts to stop small boat crossings.

The Judicial Review and Courts Act 2022 was passed to deal with just such lefty lawyers, to restrict the use of judicial review against the government.

And yet, since it now suits the government, it has launched its own judicial review, against the very public enquiry it set up to examine the Covid pandemic. Suddenly the procedures used by the activist blob have become useful.

This is not only tiresome, but dangerous. We have not reached the condition of the United States (at the very least we do not have the same widespread use of guns) that we need seriously to fear violence at a constant undermining of our legal institutions and of those who practise within them - although violence cannot be ruled out.

The courts, our legal procedures and the lawyers who use them are not toys to be petted or, as the mood changes, to be thrown out of the pram.

It is the role of the government and other national leaders to inspire trust in the state institutions which administer the rule of law. This applies not only to lawyers and the courts, but also of course to parliament itself and its procedures (for instance, Boris Johnson was not ‘forced out of parliament by a tiny handful of people’, as he alleged, since, as so many have pointed out, the Privileges Committee report had to be accepted by a majority of the House of Commons before any action could be taken).

There were reports at the weekend about extra security for members of the Privileges Committee.

We want to avoid a position in our own country where the constant undermining of longstanding legal institutions, and those who practise in them, leads to violent outbursts by those who become persuaded that those institutions and their practitioners are politically tilted against them.

Jonathan Goldsmith is Law Society Council member for EU & International, chair of the Law Society’s Policy & Regulatory Affairs Committee and a member of its board. All views expressed are personal and are not made in his capacity as a Law Society Council member, nor on behalf of the Law Society