When it attacks 'lefty lawyers', this government takes aim at the rule of law | David Gauke

The scorn shown by Boris Johnson and Priti Patel marks a departure from centuries of Conservative tradition

• David Gauke was lord chancellor and secretary of state for justice from 2018 to 2019

Politicians on the left and right have always won easy cheers from their supporters by attacking unsympathetic figures from outside their political tribe. These might be fat-cat bankers or business executives or Brussels bureaucrats. Politicians have even been known to poke fun at Guardian readers.

In recent months the home secretary, Priti Patel, has identified a group she sees as appropriate for vilification, and – as is her wont – laid into them with the gusto expected of a former Referendum party press officer. The object of her scorn? “Lefty lawyers”.

Priti Patel has attacked “activist lawyers” for frustrating the removal of migrants. In her conference speech, she attacked “do-gooders” for defending a “broken” asylum system, and predicted that those “well-rehearsed in how to play, and profit from, the broken system would lecture us on their grand theories about human rights”. Her remarks were soon echoed by the prime minister, who stated in his conference speech that the criminal justice system was “being hamstrung … by lefty human rights lawyers”.

A home secretary is, of course, entitled to seek to reform the asylum system, and may make her case in robust terms – but there are genuine reasons to be concerned about some of the language being used.

The issue of asylum and immigration provokes in some people very passionate, even violent emotions. The argument that lawyers are upholders of a broken system that is favouring themselves and illegal migrants over decent, honest British folk is designed to provoke anger. In some cases, that anger may turn to violence.

This is no abstract concern. This week, a 28-year-old man has been in court charged with a racially or religiously aggravated attack on 7 September on a solicitor at a law firm that has been involved in high-profile immigration cases. Subsequently, both the Law Society and the Bar Council wrote to the home secretary to raise their concerns about her language putting lawyers at physical risk.

On Sunday the Observer reported that the attorney general, Suella Braverman, and my successor as lord chancellor, Robert Buckland, had also raised their concerns privately with the home secretary about her language after the 7 September attack and before her conference speech.

The lord chancellor returned to the issue in public last week when he set out that, “I, and this government, are absolutely clear that any form of violence or abuse against lawyers is utterly unacceptable.”

These comments are welcome. But there is wider concern that this criticism of lawyers reveals a government that appears to have a distrust for the law in general.

“Activist lawyers” work to ensure that their clients get the protections they are entitled to under the law. We do not have a system whereby immigration officials have unfettered discretion to deport individuals, but rather a system constrained by laws. Upholding those laws should be seen as a valuable public service, enabling the right balance to be struck between the individual and the state in accordance with the laws laid down by parliament.

The difficulty here is that the government gives the impression that striking a balance is something of which it disapproves. Anything that constrains its ability to do what it wants – whether it be the European Union, an impartial civil service or the rule of law (or, prior to the general election, the House of Commons) – is an illegitimate source of power that should be diminished, abolished or suspended.

The government appears to still be bruised from the supreme court’s ruling over the prorogation of parliament; and, while still in a sulk, it promised in its 2019 manifesto to reconsider how judicial review works to ensure that “it is not abused to conduct politics by other means or to cause needless delay”. It still remains unclear as to how it will do that without removing protections for the individual from an overbearing or irrational state.

This is also a government that has brought forward legislation – the internal market bill – that breaches international law, as a cabinet minister has acknowledged from the dispatch box. The head of the government legal department and the advocate general resigned as a consequence.

This antagonistic attitude to the law is a departure from the traditional position of the Conservative party. Five of the six living ex-leaders of the party have criticised the internal market bill. And it is hard to believe that the Conservatives’ most iconic leader since Churchill would have been sympathetic. “In conversation at her zenith and in her retirement,” wrote Charles Moore in Margaret Thatcher’s authorised biography, “the phrase ‘rule of law’ and ‘not just liberty but law-based liberty’ probably came up more often than any other. She saw the law, even more than democracy, as the shibboleth that distinguished free from unfree societies.”

Conservatives are supposed to believe in the rule of law. Lawyers – “lefty” or otherwise – are essential in upholding the rule of law. Conservative cabinet ministers should cease to speak of them as enemies of the people.

  • David Gauke was lord chancellor and secretary of state for justice from 2018 to 2019


David Gauke

The GuardianTramp

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