Lord Reed, in handing down the Supreme Court’s recent judgment on the Rwandan flight, correctly supported our profession in the face of recent attacks from the government and the press. He said that ‘the appellant’s lawyers were performing their proper function of ensuring that their clients are not subjected to unlawful treatment at the hands of the government’.
Yet the judges themselves also face the fury of government and government-supporting journalists, depending on whether a judgment goes in the desired direction. So we should return the favour of support for the judiciary.
By way of example, the Daily Mail had the following reaction to the two sets of judgments issued by the courts in response to the threatened Rwanda flight.
The three UK courts, which declared the Rwanda flight lawful, were considered to have performed their duties as follows: ‘Not on a whim. No, they assessed all the evidence with the dispassionate sagacity expected of their exalted offices.’
The European Court of Human Rights (ECtHR) outcome, on the other hand, which stopped the flight, was described as ‘an out-of-hours hearing so rushed it verged on indecent’, ‘troublingly opaque… Such a disturbing lack of transparency is redolent of a banana republic’, and so on.
The Mail was very frustrated at first that it could not identify the ECtHR judges and so run its usual photos showing houses and spouses. But it soon found that the guilty judge might be a Hungarian (a country which has ‘faced criticism from groups such as Amnesty and Human Rights Watch’, said the Mail, and ‘also faces possible action on media freedom and free expression related to LGTBQI rights’ – although ‘there is no suggestion Judge Paczolay supports its policies’). Or he might be a judge from Liechtenstein (a country with ‘the same population as a medium UK town… the country takes in just a handful of asylum seekers each year’).
The Mail’s attitudes are not new, and are not confined to the Mail. The home secretary called the ECtHR decision ‘scandalous’. But then again many of our governments have threatened the rule of law by attacking judges – this one is not unique.
The All Party Parliamentary Group on Democracy and the Constitution recently published a report looking at ‘the impact of the actions and rhetoric of the executive since 2016 on the constitutional role of the judiciary’. The report performs a great service by reminding us that such conduct goes back for 20 years at least.
Here are some of the examples from the report regarding home secretaries from previous administrations from both parties.
l In 2003 home secretary David Blunkett issued an invitation (which was declined) to senior judges to attend a private dinner to ‘informally’ discuss issues which might come before the courts. He used a column in the Sun to insult judges (‘Our justice system is a sick joke’, ‘Give that judge a brain transplant’, and ‘Bewigged menaces who make the law look an ass’); and
l In 2013 home secretary Theresa May claimed (in an op-ed for the Mail): ‘It’s my job to deport foreigners who commit serious crime – and I’ll fight any judge who stands in my way.’
We know from recent experience how dangerous and debilitating attacks on our own profession can be, especially when coming from the government. We are at one with the courts in our role in the proper administration of justice and the rule of law.
Many solicitors will be faced with decisions or statements by governments or parties we support, but whose actions and statements cross a line. We come from all walks of life with a myriad of views – anything else would constitute an unbalanced profession. We include Conservatives, Labour, Liberal Democrats, Greens and other supporters. The invasion of Iraq was such a red line for many Labour-supporting members, and a combination of Partygate, the bill to disapply the Northern Ireland Protocol and the Rwanda policy may form a red line for Conservatives.
The SRA’s Principles make clear that the rule of law is a paramount concern: ‘Should the Principles come into conflict, those which safeguard the wider public interest (such as the rule of law, and public confidence in a trustworthy solicitors’ profession and a safe and effective market for regulated legal services) take precedence over an individual client’s interests. You should, where relevant, inform your client of the circumstances in which your duty to the court and other professional obligations will outweigh your duty to them.’
In other words, the institutions which safeguard the rule of law are more important than a client’s interests, or the way in which a particular decision may turn out.
Of course, the government is not every solicitor’s client, but it would be odd if the same principles did not apply in our calculations of whether we support a particular policy or indeed administration.
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