The danger of summoning the genie

I feel a fairy story coming on after recent political developments, with precedents from King Midas and the woodcutter who is given three wishes.

The tale’s hero is a government, recently departed from the EU, skipping through the forest saying ‘I am free, I am free!’ It discovers parliamentary sovereignty lying on the ground, and dusts it down. Then a genie appears, saying ‘I can grant you any wish’.

The government foolishly does not ask the genie for the conditions surrounding the wish.

Its first wish is to make Rwanda safe, to overturn a finding of fact from the Supreme Court.

The Law Society properly says that this wish ‘sets a dangerous legal and constitutional precedent by legislating to overturn an evidence-based finding of fact by UK courts and preventing them from providing legal oversight’.

The government’s second wish is that the Horizon postmasters be freed from their conviction after they have been found guilty by the courts.

The Law Society properly says that ‘Such an exceptional scheme can only be justified in these very extraordinary circumstances. It cannot be treated as a precedent or justify further government intervention in the independence of our justice system’.

I agree with the Law Society.

The government should be careful what it wishes for. It turned out badly for both King Midas (even his food and drink turned to gold) and the woodcutter (all his wishes wasted in getting sausages out of his wife’s nose).

There are conditions attached to the wishes granted by parliamentary sovereignty, which the government should carefully consider.

The first is that its use to overturn findings of the courts undermines faith in the justice system, as the Law Society says. If such wishes continue, then the question arises as to why we have the rule of law at all. Let parliament just conjure up any wish it wants, regardless of the well-tested system in which it sits, containing checks and balances. We did not like it in the old days when parliament was subject to the laws of the EU, and we voted against it. There are pitfalls, though, in its opposite.

The second condition attached to the wish is that the holder retains the power for a maximum of five years. In this case, there is only about a year until the next election, more likely a matter of months. It is the control of parliament which gives the holder power, and wishes can not only be reversed but used against the previous holder.

We see this in the United States, where impeachment used to be a very rare procedure: Andrew Jackson in 1868, Bill Clinton in 1998, Donald Trump twice in 2019 and 2021, and now inevitably impeachment proceedings have been authorised against Joe Biden. The lamp is rubbed all the time, the genie summoned to punish enemies, so corrupting the system in which it sits.

This leads to the third condition, which is that the wish only works properly, in a system governed by law and decency, if it is summoned rarely and with respect to the carefully constructed eco-system in which it is found, so as to deal with a genuine emergency.

There are questions as to whether either of the two wishes above respect this last condition.

As many commentators have pointed out, saying Rwanda is safe in an act of parliament does not make it safe. As a result, there is a lack of respect for our eco-system, which should be based on honesty and realism. It is also likely to be a wasted wish – like the wood-cutter hoping to get the sausages out of his wife’s nose – because many commentators have also pointed out that, even if enacted, it will barely dent the problem it seeks to solve.

As for the Horizon postmasters, their truly terrible plight of course deserves rapid treatment. But this wish is a shortcut made necessary because of the government’s own decisions to deprive the Criminal Cases Review Commission and, more importantly, the legal aid system and the courts, of funding necessary to deal expeditiously with appeals. By doing so, and making the wish nearly inevitable, the eco-system has again been corrupted.

Not all fairy tales have morals, but the ones where wishes are granted seem to end with the principal in the narrative wishing that he or she had never come across the genie in the first place. This is usually because the hero misunderstood the conditions around the wishes, had under-estimated his or her previous happiness, and now longs to return to a pre-genie state.

It could be that, after two wishes in rapid succession, our government will subside again. But the evidence from fairy tales – and the United States – is that people become addicted to summoning the genie, and that is when problems start.

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