From Rwanda to Northern IrelandThe Failures of the Government Legal Department
Barrister Gareth Roberts assesses the breakdown in respect for the rule of law within Downing Street
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This summer may well end up as the busiest and most significant for a branch of government that is rarely in the public eye but the influence of which is felt by every other department before, in turn, touching the lives of everyone else: the Government Legal Department.
The Government Legal Department is there to offer advice and opinion to ministers and departments on every aspect of law and public policy.
As every law student is told, legal opinion has to be objective, honest and legally sound. Lawyers are not there to provide lip-service for their clients – we are not allowed to make up a defence where no defence exists, we are not there to tailor facts or evidence to suit a particular position that our client wishes to take. Nor are we allowed to deliberately misinterpret the law or try to bend the rules.
This is the same for every lawyer, whether they be the exhausted duty solicitor who is providing advice in the middle of the night to people caught drink driving, or the Attorney General.
The Government Legal Department is a prestigious arm of the profession – the government, traditionally, has attracted the best and the brightest lawyers around – and rightly, because the legal advice that underpins public policy is fundamental to any democracy. Government lawyers, perhaps more than any other, must have the ability to give advice that is legally sound to individuals who may not like what they’re being told.
Indeed, ministers are politicians and by definition are ambitious – they care desperately about their own agenda and their own career. It can’t be easy telling a minister that the policy they have proposed may be unlawful.
Traditionally, the Government Legal Department would be involved at an early stage in the development of a new law or a public policy – indeed when I was a researcher working on the opposition benches in the 1990s, it wasn’t unusual for the Government Legal Department to offer advice on plans or proposals being proposed by politicians who were not even in Government, to ensure that their proposals were lawful.
It was taken as read that when a bill was put on the floor of the House of Commons, or a minister stood up at the Despatch Box to make a statement about policy, a lawyer had reviewed it and given honest, independent advice as to its lawfulness.
It is rare that the public sees or hears legal opinion. The convention is that legal opinion is not disclosed outside government – which is another reason why we must be absolutely confident that this legal opinion is objective and correct.
Perhaps the first time many of us had reason to question the legal opinion given to ministers came during the run-up to the invasion of Iraq. It appeared that in its desire to support the Americans and invade the country, Tony Blair’s Government was prepared to put undue pressure on its own lawyers. Thus led to the then Attorney General, Lord Peter Goldsmith, changing his legal opinion on the lawfulness of invasion, something for which he was criticised in the Chilcot Report, describing the advice as “far from satisfactory”.
The repercussions of that poor advice are still reverberating.
Professional and Political Obligations
Boris Johnson has never risked overly burdening himself with the finer points of law or the constitution.
From his first days in office, when he tried to unlawfully prorogue Parliament in an attempt to pass his Brexit deal, it was clear that he was not interested in the question of whether his policies and activities were within the bounds of either convention or the law.
Since then, the Prime Minister has continued to act in a way that suggests he either doesn’t care about or doesn’t understand the laws of the land.
The policy of transporting asylum seekers to Rwanda was announced by the Home Secretary in April, following a deal struck between the British and Rwandan governments in Kigali. The United Nations was not consulted at any stage during the negotiations despite the fact that any such agreement would impact upon the UK’s obligations under international law and the Convention and Protocol Relating to the Status of Refugees, to which the UK is a signatory.
At the time, the Rwanda policy was deemed by many to be a political stunt – an attempt to throw a bit of ‘red meat’ to the right-wing forces in the press and on the Conservative backbenches. Many assumed that once the policy was considered carefully and the lawyers were given the opportunity to offer an objective opinion, it would be quietly shelved.
But it hasn’t been.
Indeed, with every attempt to expose the policy for being a shameless and immoral act of political opportunism, Home Secretary Priti Patel – who has consistently derided during her time in high office – has dug in further. Now, despite opposition ranging from the Church and (seemingly) the Royal Family, to specialist refugee charities, planes are sat on the tarmac poised to take refugees to central Africa.
The United Nations High Commissioner for Refugees (UNHCR) has made it clear that the deal with Rwanda is in contravention of international law, the UK Government disagrees, and the matter will ultimately be decided by the High Court in July.
As a lawyer, I find it extremely difficult to foresee circumstances in which I would advise my client that the organisation existing to oversee the law pertaining to the status of refugees – the UNHCR – is wrong about the interpretation of its own protocol.
I also hope that if I was placed under pressure to change that opinion, I would stick to my professional obligations.
The Northern Ireland Protocol is another area where the law courts will be called upon to offer important adjudication.
Again, the Government seeks to act in a way in which appears to involve a breach of the law – this time, its obligations under both the Good Friday Agreement and its Brexit agreements with the European Union.
A bill is due to be put before Parliament in the coming days, and one assumes that at some point this bill will have been scrutinised by the Government Legal Department and opinion sought as to whether its enactment will be a breach of international law. Again, it is inconceivable that that won’t be the case.
Sadly, for this Government, short term political survival is far more important than national or international law.
In his private and public actions, the Prime Minister has consistently demonstrated that he views the law as an encumbrance that must either be ignored or bullied into passive compliance.
This is profoundly dangerous.
For the UK, which has no written constitution and relies upon a set of archaic conventions to keep the government in check, the role of the Government Legal Department to set out the law properly and dispassionately is absolutely vital.
If it stops doing that or is cowed into a role where it simply tells the Prime Minister what he wants to hear, then we the people risk losing a vital weapon in our ability to keep our government in check.
Gareth Roberts is a barrister
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