My heart sank when Geoffrey Cox, the Attorney General, declaimed in his pantomime tones that something had to be done about the Supreme Court. He had not liked the judgment the court had made against the government on its decision to prorogue parliament. The appointment of senior judges should in future be subject to scrutiny by politicians, he bellowed.
He seemed to have forgotten that an attorney general is supposed to act not just for his party in government but also in the public interest. Undermining judicial independence flies directly in the face of the Rule of Law, which one would have thought an AG held close to his heart.
The court’s decision was by no means a display of judicial partisanship about leaving or remaining in the European Union, as he was inferring, but was a unanimous decision about the constitutional role of parliament in a representative democracy. According to the court, the prorogation of parliament in the midst of decision-making about our departure from the EU was a matter of constitutional significance, and a deprivation of time for debate was unlawful. Cox was out of order and playing to a populist trope that the judges are part of an establishment elite, (as though Boris Johnson, Jacob Rees-Mogg and Cox himself—all educated at private schools—are not) and have to be brought into line.
In the very week when this decision by the court was made, I spoke on the Rule of Law at a conference of the International Bar Association in Seoul. It is the umbrella organisation of 187 Bar Associations from around the world and the conference hosted thousands of lawyers. In my address, I expressed my profound belief in the independence of the judiciary and mentioned the recent judgment in the UK Supreme Court. To my surprise, the audience rose to its feet in acclaim. Afterwards, lawyers from Hungary, the Philippines, Turkey, Pakistan, Russia, Brazil and many other parts of the world described how important it was for their populations and for their judges to see on television how an independent judiciary functions.
Populist leaders and their hangers-on do not like having to conform to the rule of law. They actually do not like any rules not of their making. Since it is judges who are supposed to be the guardians of law, they are first in the line of fire to be fixed, co-opted or fired.
Hungary’s judiciary has been increasingly undermined in recent years, with the government there attempting to create a parallel court system overseen by the justice minister. This almost went through until the EU intervened, invoking Article 7 of the Lisbon Treaty which protects the judiciary in member countries. Prime Minister Viktor Orbán has been slyly inventive in finding many ways to undermine legal rights, for example preventing lawyers giving advice to asylum seekers by prohibitively taxing law centres and banning foreign donations.
Poland has followed a similar trajectory—its government has even assumed direct oversight of state prosecutors as well as the judicial body that appoints and disciplines judges. Human rights lawyers in both nations are facing trumped-up attempts at disbarment.
Challenges to the rule of law emerge when populists use their platforms to stoke resentment of the other, sometimes on racial or ethnic lines, or to exploit public frustration with the economic situation. They then go on to erode the legal institutions which provide protections and by doing so they concentrate their own power.
In the US, this has played out most overtly in the Trump administration’s decision to ban people from seven Muslim-majority nations from travelling to the US, curbing the ability of migrants to claim asylum, and enforcing the longest federal government shutdown to force Congress to back funding of the wall on the Mexican border. Trump has also appointed 164 federal judges across the United States who have life tenure—20 per cent of the total. What is more alarming than the number alone is the demographic make-up, which radically breaks with progress made under his immediate predecessors: 90 per cent are white; 80 per cent are male and many are right-wing Republicans appointed because of their allegiance to Trump.
We are seeing these assaults upon the rule of law in many countries, from Narendra Modi’s India to Rodrigo Duterte’s Philippines. It often starts in ways that can be dismissed as of little consequence and we should not be sanguine about our own safeguards. Let us not forget the Daily Mail’s grotesque front page, with its characterisation of the senior judiciary, including our Lord Chief Justice, as “Enemies of the People,” simply because they decided that parliament, not the executive, had to trigger Article 50 to initiate a departure from the EU. It took almost a week before the then justice secretary, Liz Truss, was forced to say, with obvious reluctance, that this was an unacceptable attack upon judicial independence.
The Rule of Law means no one being above the law—that includes governments. It means judicial independence, an independent legal profession, due process and, in our contemporary world, it means protection of human rights. It also means proper access to justice, but tell that to the millions in the UK who are denied legal assistance because 40 per cent was taken out of the justice department’s budget in the long austerity drive and legal aid was cut to the bone.
So my New Year’s wish is for a genuine commitment to the Rule of Law. The pressure to find friends who will trade with us post-Brexit may tempt ministers to turn a blind eye to acts of impunity, but it will have shallow returns. The UK is recognised as the best place in the world to settle courtroom disputes and our legal system enjoys the highest esteem of any on the globe. That will not last if we squander the fundamental values which give it that clout. Our new government should keep its hands off our highly esteemed judiciary.