Saturday, 10 October 2020

Troubling times


Following the December 2019 general election, Boris Johnson became Prime Minister of the United Kingdom. He is a man who is noted for ill-judged comments - Business Insider 9 June 2020 - of which the latest is his attack on "lefty" lawyers and other "do-gooders" - The Guardian October 2020.

In an online speech to the Conservative Party Conference, Johnson said - "We’re ..... protecting the public by changing the law to stop the early release of serious sexual and violent offenders and stopping the whole criminal justice system from being hamstrung by what the home secretary would doubtless – and rightly – call the lefty human rights lawyers, and other do-gooders.”

Johnson's reference to the Home Secretary

was a reference to an earlier conference speech by the Home Secretary (Priti Patel MP) who criticised laywers who "defend migrants" linking them directly with traffickers who help asylum-seekers to cross borders - The Guardian 6 October . Patel continued - "“No doubt those who are well-rehearsed in how to play and profit from the broken system will lecture us on their grand theories about human rights. Those defending the broken system – the traffickers, the do-gooders, the lefty lawyers, the Labour party – they are defending the indefensible.”

There was of course no acknowledgment of the insecapable fact that the Conservative Party has been in power at Westminster since 2010. If there is a "broken system" then maybe government policy has something to do with it !  The legal system at almost every level has been underfunded for several years by successive governments. This has resulted in a large backlog of cases, extreme delays, crumbling court estate and practitioners being too often underpaid for their services to justice.

The Bar Council has rightly criticised Johnson's speech - Bar Council Statement 5 October - and on 6 October the Council stated that the Prime Minister's comments were "shocking and troubling."

The attack on the lawyers who represent those who the government appears to dislike is just one symptom of a government with little or no respect for the rule of law or the rights of the people.

The 2020-21 legal year was opened with a speech by the Secretary of State for Justice and Lord Chancellor (Mr Robert Buckland QC MP). He said that, as the new legal year began, his mind turned to "the enduring success of our legal system over the centuries, with judicial independence and the Rule of Law at its heart" and said that he had sworn an oath (in both English and Welsh !) to "uphold and respect those principles." He continued -

"Principles which act as guardians of fairness in our society. In many ways, my role is right at the frontline, where the law meets policy and policy meets the law. There will be tensions at times, which can be frankly, difficult to resolve. Those observing, who aren’t privy to all the swirling issues, are naturally and understandably tempted to come to hard and fast conclusions. In my judgement, that can lead to error. When I sat as a part-time judge, I quickly learned that not every ruling that I was asked to make needed to be made at once, and that the fairness of proceedings was enhanced by making key decisions at just the right moment as the evidence progressed.

That is what I apply to my work as Lord Chancellor now. As Lord Chancellor I will of course tackle sensible criticism head on but, ultimately, my focus will remain on discharging my duties in accordance my oath. And when it comes to the professions – barristers, solicitors, legal executives – it is right and proper for practitioners to make the strongest cases possible and do their utmost for their clients within the confines of the law. Sometimes a lawyer will find the argument they advance to be at odds with the Government of the day – but it frankly it is a strength of our mature democracy underpinned by the Rule of Law that such debates can occur.

In a healthy democracy like ours it is inevitable that there will be criticism of both politicians and indeed of lawyers for the work they do. Sometimes that will be robust, tensions will arise, but it is wholly wrong for any professional to be threatened, harassed or worse, attacked simply for doing their job – we must call it out and deal with it. And make the point that those who attack people providing a professional service will be subject to that very same Rule of Law."

Fine words but somewhat at odds with his support for the Internal Market Bill with its clauses empowering Ministers to breach the withdrawal agreement which binds the UK in international law.

For me, Buckland's speech also mixed up the roles of Secretary of State and Lord Chancellor. The "swirling issues" seem to belong more to the role of a Secretary of State whereas the Lord Chancellor title covers the residual functions of the Lord Chancellor's office as it was prior to the Constitutional Reform Act 2005. In those days, the Lord Chancellor was a member of all three branches of governance - the Judiciary (able to sit in the Appellate Committee of the House of Lords), the Executive (as a government Minister), and Parliament (as speaker of the House of Lords).

The Joint Human Rights Committee has published a letter from Mr Buckland to Ms Harriet Harman MP in which he stated that -

"the UK is committed to protecting and respecting human rights" and the "UK remains committed to the European Convention on Human Rights and will continue to abide fully by our obligations under it." Nonetheless, Buckland went on to state that the government "will look at the broader aspects of our constitution including the balance between the rights of individuals and effective government. This includes a commitment to updating the Human Rights Act 1998. We will announce further details on an independent review into the operation of the HRA in due course."

Buckland's letter concluded by saying - "I can also confirm that the UK does not intend to 'opt out' of the ECHR" though he noted that the Overseas Operations (Service Personnel and Veterans) Bill compels the government to consider derogation from certain rights if it engages in military action overseas.

On Monday 12 October, the Joint Committee on Human Rights will be taking evidence on the value of judicial review as an enforcer of human rights - see the Committee's website.  The committee will be asking about -

  • The role of judicial review in protecting human rights
  • The role played by courts and whether this draws judges into making decisions on political issues
  • Whether reform is necessary; and
  • To what extent the Government’s review can find solutions

The questionable rhetoric of politicians has, in recent times, made many people wonder where it is all heading. Perhaps the elective dictatorship is the ultimate aim with executive authority the dominant feature of the nation.

David Allen Green, the high profile commentator on legal matters, has questioned whether an "Enabling Act" is possible in the UK - Prospect Magazine 5 October. The "Enabling Act" was passed by the German Reichstag in 1933 and was actually one of a number of Acts enabling the German government to avoid (or bypass) the Weimar consitution (Weimarer Verfassung).

The UK does not have a "codified constitution" and the reality is that Parliament may, under the Parliamentary Sovereignty doctrine, enact any legislation it wishes. In practice, that means that a political party with a parliamentary majority (and aided, if necessary, by the Parliament Acts 1911-49) is able to force through almost any legislation it brings forward and that includes legislation which is quite clearly contrary to the European Convention on Human Rights.  Parliament could state clearly that such was the intention of the legislation. Even in the absence of such clear wording, the most the courts can do is use its power under the Human Rights Act 1998 to issue a "declaration of incompatibility" which indicates a need to amend the law to bring it in line with convention rights but does not force the government to act.

Many aspects of the UK's constitutional arrangements are weak as was shown by the prorogation litigation in 2019 (and R (Miller) v The Prime Minister [2019] UKSC 41) when the executive sought to close down parliament for 5 weeks and thereby get rid of the very body designed by the constitutional arrangements to hold Ministers to account. Interestingly, a surprising number of lawyers considered that the "Royal Prerogative" power to prorogue Parliament permitted the government's proposed action.

Similarly, many lawyers considered that the prerogative power to make (and unmake) treaties also permitted the government to simply give notice that the UK was leaving the EU and thereby terminate, simply by executive decision, the legal rights of individuals which flowed from the European treaties. The Supreme Court held (by a majority of 8 to 3) that the giving of notice (under Article 50 of the Treaty on European Union) had to be authorised by Act of Parliament - Miller and Dos Santos v Secretary of State for Exiting the EU [2017] UKSC 5.

Essentially, the UK's constitutional arrangements depend on parliamentarians respecting matters such as the "rule of law" and the rights of the people.  They also observe the various constitutional conventions which, like the oil in an engine, enable government to operate without serious confrontation. To my mind, rather too many present day politicians do not appear to have that respect.

We are cetainly witnessing troubling times but there may still be some hopeful signs. The European Union is committed to observance of the European Convention on Human Rights and, even though the UK has now left the Union, the EU is likely to require the UK to respect human rights if it is receive cooperation in crucial areas such as criminal justice - The Guardian 7 October 2020.

10 October 2020

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