On 4 November 2016, the Daily Mail’s front page was wholly devoted to a screaming attack on the three judges who had ruled that parliament had to pass an act of parliament before the UK could lawfully leave the European Union. The “enemies of the people”, who included, the Mail yelled, an “openly gay ex-Olympic fencer”, were accused of defying 17.4 million Brexit voters.
That was the beginning.
The rightwing attack has since expanded and focused: judges, over-influenced by a liberal, pro-remain agenda, and empowered by the European convention on human rights (ECHR), stand in the way of a democratically endorsed programme of leaving the EU, and putting a stop to illegal immigration; the courts are aided and abetted in this frustration of democracy by politically motivated, or dishonest, lawyers, who are as bad as people traffickers in facilitating illegal immigration. The ideological right drives this government. Since 2017, it has expressed support for all elements of this attack; last week the lord chancellor, Alex Chalk, denounced lawyers for parading their political views in the work they do – an attack that would have embraced Clem Attlee helping the poor and migrants in east London in the interwar years.
Attacks on law and lawyers lurk in the political ether whenever a government wants to break with a well-established status quo. Told of Jack Cade’s popular rebellion in Shakespeare’s Henry VI Part 2, Dick the Butcher responds: “The first thing we do, let’s kill all the lawyers.” Although focused on judges and lawyers, the real attack today is on two fundamental principles, which had previously been uncontested.
First, the judges’ duty is to give effect to law, and only parliament can significantly change the law. The attack says judges should have accorded primacy not to particular laws but to the democratic will expressed in the EU referendum. This perversion of the rule of law subjugates it to contested views of what the public want.
The judges’ role is to give effect to law, not to expressions of democratic intent such as an advisory referendum result, or whatever conclusions can be drawn from a general election result. We are governed by laws, not by the edicts of the executive. Without the protection of law, and the need to persuade parliament to make any change, imagine what the likes of Boris Johnson or Liz Truss might have inflicted on the country by decree.
The role of the courts in Brexiting is now done. But the characterisation of the judges, with their spider brooches and north London views, as defying the people’s will has lingered, fostered by a government constantly burnishing its anti-woke credentials.
The second principle attacked is that there are some basic freedoms that the law protects in all circumstances. They include everybody’s right not to be imprisoned without cause or to be subject to death or torture as a result of the acts of the state, and to have access to the courts to protect their rights.
No, says the government. Those basic rights do not apply to immigrants who enter the country illegally, even if it later emerges that they were entitled to asylum.
Those basic freedoms are protected by the incorporation of the ECHR into domestic law. Hence the implicit threat by Robert Jenrick, the immigration minister, last week to leave the convention if it stood in the way of current immigration policy, which includes, in the Illegal Migration Act, imprisonment without adequate cause, and an unacceptable restriction of access to the courts. The convention is a red herring. If there were a British bill of rights, there is no doubt it would include those same basic freedoms.
The government is playing with fire. It is undermining one of our country’s undoubted strengths – a widespread and well-founded confidence that the law will be enforced without fear or favour, and protects everyone.
That confidence made the judges strong in the face of executive overreach, ensures individual freedom and encourages investment in the UK because investors know we have reliable laws that will protect their investments. If the government itself attacks the reliability of the courts, the confidence of and in the judges reduces. That is already apparent, as judges now choose their fights with the executive, and hang back from ruling against them.
In the recent past, law lords were willing to block primary legislation passed to combat the terrorist threat after 9/11 because it was discriminatory, or to strike down court fee increases because they restricted access to justice. But in 2021 the supreme court rejected a human rights challenge to the two-child limit on child benefit even though it was, it found, discriminatory (more women than men look after two-plus children) – because that limit had been approved by parliament. This is a dramatic change in tone.
Judges have no means of fighting political battles to defend themselves. They are not and should not be campaigners in the way that politicians are. If judges are brought into play politically, they are bound to reduce in public esteem. Becoming a target in the culture wars flowing from Brexit has already damaged them.
Demonising the lawyers accelerates the weakening of the judges. Of course dishonest lawyers who feed their clients crooked stories should be put out of business and punished. But to attack lawyers who, motivated by disagreement with government policy, use lawful means to protect vulnerable clients is fundamentally wrong, particularly from the lord chancellor, whose job is to protect the rule of law.
This government appears to have no proper understanding of the damage it is doing by trashing the UK’s reputation for playing by the rules, and protecting and respecting their judges.
These shortsighted deviations from the rule of law will almost certainly not have the policy effects the government intends. The long-term damage to domestic freedoms and international standing will be all too real. They should lay off the judges and honest lawyers, and lay off now.
• Lord Falconer was lord chancellor in Tony Blair’s government
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