Dr Carla Ferstman, Senior Lecturer in Law, University of Essex
The rule of law is embedded in UK law since the Magna Carta. Its importance to the proper functioning of democracies has been affirmed by the Council of Europe’s Venice Commission and the United Nations, among others. As Lord Bingham wrote, at the core of the rule of law is the notion ‘that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts’. Respect for the rule of law means that even the rights and interests of those who are derided in society are safeguarded in the same way as anyone else. In a society governed by the rule of law, both the government and members of society must accept that from time to time, the outcomes of judicial proceedings may not be to their liking or accord with where they consider justice lies.
Respect for the rule of law has been recognised and affirmed as a defining principle of UK democracy. But at the same time, there is a sense amongst some in government that the rule of law is being used as an arsenal against the Government. The Lord Chancellor has recently stated, ‘I believe it is incumbent upon me to ensure that the rule of law itself cannot be misused to in effect weaponise the courts [what some would term ‘lawfare’], against political decision making.’
But hasn’t the Government’s anti-‘weaponization’ gone too far? What is happening is simply an attempt to limit the power of law over the executive and to shut down those lawyers who represent clients whose claims are perceived to counter government policies. There is no ‘lawfare’ plot being prepared by over-zealous lawyers; to the contrary, what we are seeing is government reticence about the placement of law and lawyers in an effective democracy: it is a problem about respect for the rule of law.
The legislative attack
There is an increasing amount of law – some proposed, some already adopted – which seeks to restrict access to justice, constrain the powers of the courts to decide or award remedies, and/or introduces new arbitrary powers. This has been done by concentrating power in the hands of the executive and simultaneously blocking or severely limiting the role of the judicial and legislative branches of government which traditionally afford key safeguards for the rule of law.
To name a few recent examples, efforts have been made to limit parliamentary scrutiny (in the case of the adoption of the Coronavirus Act 2020) or to avoid parliamentary scrutiny altogether (the attempt to prorogue parliament to fast track the withdrawal from the EU). The government has also sought to reduce access to courts. Significant restrictions on access to legal aid already came into force in 2013, and in this same direction are the efforts to restrict judicial review and to amend or repeal the Human Rights Act ‘to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government’, and to place certain powers and decisions beyond the reach of judicial review. So far, the Independent Review of Administrative Law did not find any real need for reform of judicial review. Whilst the review of the Human Rights act was still pending at the time of writing, the Parliament’s Joint Committee on Human Rights conducted its own review, ultimately concluding that there was no basis to reform the Act.
Planned restrictions are gaining force. The Environment Bill, now in its final stages of review, curbs the power of the courts to afford tangible remedies for breaches of environmental law. There are more planned restrictions for immigration and refugee law. In its March 2021 policy statement: ‘New Plan for Immigration’, the Government sets out its plan to prevent immigrants and refugees from challenging deportation orders via judicial review. The Overseas Operations (Service Personnel and Veterans) Act puts a time limit on civil and human rights claims that can be brought against the military for alleged abuses committed overseas. The government also sought to curtail prosecutions for overseas military abuses including those amounting to crimes against humanity, war crimes and torture, though most of these measures did not survive parliamentary scrutiny. These curtailments are now resurfacing for Northern Ireland: on 14 July, the Government justified its plan for amnesties related to ‘the Troubles’ by saying: ‘We believe this approach is also important to provide certainty for the vast majority of former soldiers and police officers who put their lives on the line to uphold democracy and the rule of law while acting within the law themselves, and who now just want to live out their retirement without the fear of unfair investigations.’ The government’s characterisation of Troubles investigations as “unfair”, feeds into its unhelpful and incorrect narrative that law is the problem.
Pushbacks against the rule of law, a strong judiciary and an able barare often couched in terms of the improper use of the courts for political objectives. But when one pares back the veneer of the justifications, it is about the majority not wanting to be challenged on its actions and policies; the tyranny of the majority suits the majority just fine.
The attack on the legal profession
The ‘legislative attack’ has been matched with attacks on the legal profession – both against judges and lawyers, and to an extent, their clients. Over the past decade, the Government has used incendiary language with increasing frequency against lawyers and others who have sought to advocate publicly and before the courts against a string of government practices and policies. Incendiary language is never appropriate; it fosters divisiveness, it discourages respect for a plurality of views, can damage reputations and can also put people’s lives at risk.
The Government was criticised for her lacklustre defence of the High Court judges – termed by the Daily Mail as “enemies of the people”, with Lord Thomas subsequently revealing: ‘It is the only time in my career I have had to ask police to give us a measure of advice and protection in relation to the emotions that were being stirred up. … I think that it’s very wrong that judges should feel it.’ Following Priti Patel’s reference to asylum lawyers as ‘activist lawyers’ frustrating the removal of migrants, a man with a knife threatened to kill an immigration solicitor, launching a ‘violent, racist attack’. Prime Minister Boris Johnson has asserted his party’s intent to stop ‘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.’
Solicitor and senior partner at law firm Leigh Day, Martyn Day, was called by Jonny Mercer MP, during a Parliamentary hearing, ‘dishonest’ with the work of his firm bringing claims against the Ministry of Defence characterised as ‘entirely the product of deliberate lies, reckless speculation and ingrained hostility’. These statements were made despite Leigh Day having been cleared of any wrongdoing by the Solicitors Regulatory Tribunal.
The government has referred to claims against the military as “vexatious”, “spurious”, “unpatriotic” and “wholly without merit”. UK law provides a clear meaning for vexatious claims which are those brought without any foundation whatsoever. The Government appears to adopt this language as political rhetoric to admonish those bringing the litigation. Not only is it self-serving, in that the civil claims were brought against the Government, but there is little to suggest that the claims were vexatious in actual fact. To the contrary, it has been made clear that many of the claims regarding military abuses were credible and convincing. As the International Criminal Court prosecutor recently stated:
[…] there is considerable reason to treat with caution the suggestion that the allegations which have been the subject of criminal or civil proceedings in the UK resulted from vexatious claims, or to characterise one of the main solicitor firms involved, Public Interest Lawyers (‘PIL’), and its former principal Phil Shiner, as vexatious litigants. Indeed, your letter provides a more accurate reflection of the situation when you observe that, “we have settled many of the civil claims made by Iraqi nationals against the MOD and we fully engaged with the courts to deal with those cases”.Fatou Bensouda, ICC Prosecutor
The government is protected in making public statements, which is justified because of the general interest of the public to be kept informed about current debates. The broad privileges given to members of the executive usually insulate them from legal repercussions for statements made on the job. But privileges aren’t absolute; nor should they be used as a license to mislead or to stoke divisive narratives. This point is made by the Joint Committee on Human Rights: ‘It is wrong for public office holders such as Ministers to refer generally to lawyers as “ambulance-chasing lawyers” (or other politically charged and inaccurate terms) when they represent members of the Armed Forces, veterans and civilians in their claims against the MoD—many of which claims have been very well founded claims against the MoD. The calculated and repeated use of such derogatory language by Ministers towards legal professionals is unbecoming and undermines democracy and the rule of law.’
At worst, particularly when the statements relate to ongoing proceedings, (as was the case with some statements about alleged army abuses) they fall foul of the sub judice rule, which prevents officials from commenting on ongoing proceedings. This rule recognises that comment on the (lack of) merits of a case in a public forum without due process of law, may affect the fairness of the proceedings, or the perception of fairness. Conduct, including speech acts, that is calculated to prejudice the proceedings undermines public confidence in the rule of law and will constitute contempt of court. The sub judice rule is well-recognised and well-practiced; frequently, the government has refrained from commenting on ongoing cases.
One should not underestimate the long-term impact of attacks on the rule of law. The rule of law is there to protect everyone. It is a short-sighted strategy to weaken law and legal structures for quick political gains. Next time around the stakes may be different, with new issues to confront, with different actors promoting new agendas. But all a weakened rule of law will do is make it more difficult to navigate the many complex problems all governments continue to be confronted with.