Johnson’s attack on the Privileges Committee has a tragic precedent

Thirty years ago, Stephen Sedley wrote of the events leading up to the assassination by loyalist paramilitaries of Patrick Finucane, a solicitor for a number of IRA hunger strikers.

A month before Finucane was murdered, junior Conservative minister Douglas Hogg – now Viscount Hailsham – claimed in front of a parliamentary committee that solicitors in Northern Ireland were “unduly sympathetic to the cause of the IRA”.

MP Seamus Mallon responded that he “had no doubt that there are lawyers walking the streets or driving on the roads of the North of Ireland who have become targets for assassins’ bullets as a result of the statement that has been made tonight”. Tragically, for Finucane, he could not have been more right.

But lessons from history have not stopped prime minister Rishi Sunak, or his home secretary Suella Braverman.

They have continued publicly to point the finger at “lefty lawyers” when asked about immigration statistics – not to mention at migrants themselves, with far right-inspired rhetoric about “invasions”.

Sunak issued a press release last summer that mentioned me ten times by name and led a national newspaper to caption my photo: “Rishi’s Public Enemy Number One”. I had previously given an interview describing how I had been advised to wear a stab vest following death threats.

Little better was Sunak’s predecessor Liz Truss, who ignored her oath to defend the judiciary after the notorious Daily Mail front page that described the Divisional Court as ‘Enemies of the People’ and obliged the Lord Chief Justice to seek police protection. Indeed, her promise to appeal their decision might be read as tacitly endorsing the attacks.

So when Boris Johnson attacked the Parliamentary Privileges Committee last week, in the wake of reports that it would find he had intentionally misled Parliament, he was following a well-trodden path.

For past and present prime ministers, attacks on judges or lawyers are a display of contempt for the rule of law and the constraint it represents to their power. And, more consequentially, a desire to be free of it, whether it punishes them for lying to the House or prevents them from breaching the basic rights of refugees.

The evidence suggests they are getting their way.

Judicial review is the only legal procedure by which civil society can try to keep ministers within the laws made by Parliament. But the proportion of judicial review challenges that succeed in the High Court slumped by 50% in 2021. An analysis of recent decisions of the Supreme Court by Oxford academic Lewis Graham also revealed an increased tendency by the Supreme Court to reject human rights claims and to side with public authorities.

This is exactly what those attacking judges and lawyers seek.

In his press release, Rishi Sunak threatened to change the law on ‘standing’ – the rules that say who can bring legal challenges – if judges continued allowing my organisation, Good Law Project, to do so. He would not even need the consent of Parliament, he boasted, for that law change.

The rule of law, in a country without a proper constitution, is a fragile thing

Judges are getting the message loud and clear. Although correlation is not causation, since that press release there has not been a single case in which a court has recognised that Good Law Project has standing. In my recent book, ‘Bringing Down Goliath’, I set out how a prominent Court of Appeal judge has been briefing privately that judges are going out of their way to find in the government’s favour because, quite understandably, they fear what ministers might do to them otherwise.

The rule of law, in a country without a proper constitution, is a fragile thing. Sunak’s threat to bypass Parliament to protect ministers from the only legal mechanism to hold them to the will of Parliament is, in its way, as profound a threat to democracy as Johnson’s prorogation.

Members of the Privileges Committee have reportedly been offered additional security in response to Johnson’s language (he called them a “kangaroo court”). Extra security, of course, is a ‘luxury’ not offered to the most vulnerable victims of the government’s attempts to scapegoat others for its own failings: migration centres that are firebombed get no protection, while the places where recent migrants live are easy targets for those inspired by the hate whipped up by politicians.

Attacks on judges and lawyers are attacks on the rule of law, which is there to protect us all. That is what Johnson and his ilk are seeking to undermine when they target the checks and balances that exist to protect vulnerable people.