Written by Fiona de Londras, Professor of Global Legal Studies, Birmingham Law School, University of Birmingham
Recent remarks from the British prime minister and home secretary about how lawyers are thwarting and frustrating the administration of justice have to be seen in the context of this government’s general posture towards the rule of law. Over recent months, the government has launched an inquiry into judicial review in order to ensure that it is “not open to abuse or delay” and that the “right balance is struck between citizen’s rights and effective governance”. It has pressed ahead with one piece of legislation that enables impunity for soldiers violating international law (including torture) overseas, and another piece of Brexit-related legislation that it admits places the UK in violation of its international legal obligations.
Contemporaneously with this, the home secretary seems to be seriously considering “off-shoring” the processing of asylum applications, perhaps as far away as Ascension Island, seemingly inspired by the Australian government’s use of Nauru to detain asylum seekers. The Australian policy has been roundly condemned by human rights bodies. It seems, however, that it is the feasibility of such a proposal, rather than its legality (or, indeed, respect for human dignity), that will determine whether the UK follows suit.
The law and power
Given this broader context, the home secretary and prime minister’s attacks on “lefty human rights lawyers and other do-gooders” are more than mere rhetorical flourishes in conference speeches to the party faithful. They tell us something about how this government sees the law and the ability of people to avail of legal processes to restrain government action.
It seems increasingly clear that this government resents anything that limits its capacity to follow its policy preferences, whether that is an international agreement to which it has already committed, accountability to parliament, or the application of the law.
But the truth is that law is supposed to limit what the government can do. And we are supposed to be able to avail of the law – including in cases in which we are represented by lawyers – in order to ensure that the government is limited by that law and accountable under it. That is how public law works.
This does not mean, however, that the law fatally undermines a government’s capacity to deliver on its policy choices. Instead, it means that the government must either shape its policy choices within what is legally permissible, or change the law to ensure that its preferences can be accommodated. When it comes to domestic law, parliament can amend the existing law by passing legislation. It can even deliberately pass legislation that violates our rights and pass law that is inconsistent with the UK’s international obligations.
Lawyers do not prevent parliament from doing that, even if we (rightly) point out that this is what is happening and create a political environment where such actions are uncomfortable for the government. When the government has a parliamentary majority – as this one does – it is even easier for it to change the law to suit its desired policy objectives or to respond to a court finding, although of course, it cannot change the outcome in a particular case that has gone through the courts. Given all of this, it is hardly too much to expect that the government would accept that legal proceedings and adverse judgments are simply part of governing.
Parliament cannot unilaterally change international law, of course, but the UK is a powerful actor in international relations. It has a permanent seat on the UN Security Council, is party to treaty negotiations, and has had an extensive influence on the development of international law (not least as a legacy of its imperial past). That the state would be bound by the international law to which it expressly agreed, and which it helped to form, is part and parcel of statehood in what the UK has traditionally called “a rules based international order”.
The crux of the matter, however, is that this is a government that does not seem inclined to play by the rules. It simply does not want to accept that there are some things it may not do, that it is accountable, that it is limited by law, that if it wants to loosen those limitations, it must do so transparently and democratically through parliament. Recent attacks on law and lawyers are a reaction to being bound by these principles. They are manifestations of the government’s resentment at having to explain itself, and at not being allowed simply to act as it wishes.
Those lefty do-good lawyers Boris Johnson and Priti Patel are so concerned about are a vital part of the fabric of our parliamentary democracy based on the rule of law. This is precisely why they continue to denigrate them.
This article by Fiona de Londras, Professor of Global Legal Studies, Birmingham Law School, University of Birmingham, originally published on The Conversation is licensed under Creative Commons 4.0 International(CC BY-ND 4.0).