In criticising the Al-Sweady lawyers the government is flouting international standards.
The defence secretary, Michael Fallon, made a statement on 17 December in parliament in which he blamed four-square the lawyers involved in the Al-Sweady inquiry for the length and costs of the inquiry. This has been followed by triumphant headlines piling the blame on the lawyers concerned.
I am aware that there are accusations and counter-accusations in the Al-Sweady case and others dealing with abuse of Iraqis, but my point is not to deal with these, but rather to raise the question of how governments should deal with lawyers who bring sensitive cases against them (and I realise that this was a public inquiry and not a court case).
Fallon reminded everyone that there are standards to which lawyers are held by their professional bodies, and that if those have been breached solicitors will be disciplined. He is of course right. But it needs to be pointed out, too, that there are international standards for how lawyers should be treated by governments and others, and I repeat them here so that we can judge whether - in all the hoo-ha about whether the lawyers here misbehaved - our government has itself maintained these international standards.
The primary code is contained in the UN's Basic Principles on the Role of Lawyers, adopted in 1990. Of most relevance is Principle 18, which states: ‘Lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions.’ My organisation, the Council of Bars and Law Societies of Europe (CCBE) frequently writes to governments which harass human rights lawyers who bring cases against them, specifically by identifying lawyers with their clients’ causes. It is odd that I should have to be raising them in the context of UK government behaviour.
At random, and this is by no means the worst of the instances, I quote the case of Masoud Shafii, a lawyer in Iran, ‘who represented the now free US hikers held for two years in Iran for espionage and illegal entry charges. Shafii represented Shane Bauer, Josh Fattal and Sarah Shourd in a case which lasted for more than two years. During all the trial, he always maintained that his clients were innocent, and was criticised by hardliners in the Islamic republic.’
He was subsequently arrested, questioned, and barred from leaving the country.
In parliament, Fallon called on one of the Al-Sweady lawyers by name to apologise for traducing the reputations of the soldiers concerned and for causing costs to taxpayers. He also announced that the lawyers in the affair are being investigated by the Solicitors Regulation Authority, and that ‘my ministry is exploring whether the claimants’ failure to disclose the militia document will allow us to recover some of the costs of the judicial review’.
He must have known that this would let loose the attack dogs of the press on the lawyers concerned, and potentially intimidate other lawyers from taking up future cases involving allegations against the armed forces.
Principle 16 states that ‘governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; … (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognised professional duties, standards and ethics’.
There are similar standards contained in Recommendation (2000)21 of the Committee of Ministers of the Council of Europe on the freedom of exercise of the profession of lawyer, which specifically references the UN Principles quoted above.
Public inquiries are almost always by their nature based on lies told by one party or the other. The truth is difficult to reach, which is why the inquiry is set up in the first place, with lawyers to represent each party. I did not notice the press identifying lawyers with their clients’ causes in the Leveson inquiry, in the background to which some journalists lied to the effect that there was no industrial-scale hacking at their newspaper.
And I wonder whether the defence secretary will identify lawyers with their clients when the Chilcot inquiry into the history of the launch of the Iraq war will be eventually published, since some allege the war was sold to the public by the government of the day on a false prospectus (such as lying).
Governments have enormous power and almost unlimited resources. That is why there are international codes protecting lawyers who bring cases against them. If lawyers have misbehaved, there are well-known and well-accepted routes to discipline them.
If lawyers who bring cases against governments are, on the other hand, shamed in parliament, with the inevitable consequence that the government’s friends in the press will monster them, then all of the legal profession should take careful notice.
Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs