“First thing we do, let’s kill all the lawyers” – Dick The Butcher, “Henry VI PT. II”, Act IV, Scene II
Matthew Syed (former table tennis player and current Times columnist) and “Dick The Butcher” (fictional medieval rebel) appear surprising ideological bedfellows. Yet Syed’s recent Times column, in which he rails against the impertinence of Hugo Keith KC (the Covid Inquiry’s leading counsel), for asking difficult questions of former ministers, evokes shades of Dick.
Syed’s column is less interesting for its content and more for the trend it represents. Lawyers have, for more than a decade, been the bete noir of successive governments and their fellow travellers. David Cameron’s administration waged a war of words on “fat-cat” lawyers. Theresa May attacked “activist, left-wing, human rights lawyers…”. Boris Johnson and Priti Patel stepped up their invective even after the police warned them that it was encouraging far-right terror attacks against lawyers.
More recently, Rishi Sunak has issued veiled threats to “recidivist” judges. Hundreds of stories are published every year portraying lawyers as everything from unpatriotic to corrupt and (the case of myself and others), actively in the pay of a foreign power.
In one sense, this level of hostility is surprising. The legal system is one of the few British industries with a genuine claim to be “world-beating”. English precedents are relied on in jurisdictions across the globe. The majority of international commercial contracts use English law. British constitutional lawyers advise governments worldwide. British services exports (of which the legal profession is a significant part) are second only to the US. Why are the government and its allies so intent on “doing down” a rare success story?
Because the legal system is one of the few remaining institutions that can effectively hold the government to account. Protests may be banned, and protestors arrested. The unions were long since crushed as a significant political force. Charities can be defunded and muzzled. Parliament (with the exception of the glorious unruliness of 2017-19) is, in practice, often little more than a rubber stamp for the whim of the executive. The law is an outlier.
Many of the last few governments’ most significant defeats have come at the hands of lawyers. Cameron’s attempt to prevent badly treated workers from suing their employers, Johnson’s attempt to rule without parliament, and Sunak’s Rwanda plan are just a few. This is not because the courts make political decisions. It is because governments have generally failed to properly grapple with the law and its inherently democratic nature.
First, the law applies equally to everyone. Successive governments (as in the prorogation case) simply could not come to terms with the fact that they were required to act within the existing law. Our politicians are allowed to ignore or avoid most rules and conventions with impunity (so long as they retain the favour of the powerful). The suggestion that they must play by the same rules as everyone else thus often infuriates ministers and their press allies.
Second, the courts tend to demand the truth. It’s now trite to point out that our public and political discourse is now increasingly divorced from reality. “Winning” the political discourse is often more about getting one’s lie out first. This rarely flies in court. The Sunak government and its allies could not understand why the courts did not simply accept its assertion that Rwanda was a safe country (the government’s own evidence was relied on by the court to show it was not).
Third, lawyers are non-discriminatory. The cab-rank rule requires that we take the next case that comes along, regardless of our personal beliefs. To a political world organised along increasingly strict tribal lines, this must appear anathema.
UK governments have long tried to emulate their authoritarian counterparts in Hungary and Poland by undermining the independence of and access to the legal system. British lawyers, however, have been surprisingly effective at resisting. When the Cameron government sought to price the majority of people out of enforcing their legal rights (by removing legal aid and increasing fees and costs), lawyers worked pro bono so that poor people still had access to redress against the state. The Johnson government’s attempt to ban challenges to the government failed when its own commission concluded that allegations of judicial “activism” were entirely unjustified. Dominic Raab and Suella Braverman both talked a big game but ultimately backed down from their attempts to remove access to basic legal rights.
The legal system is certainly not without its flaws. Few would argue that it would benefit from substantial reform. But it is also a fundamental pillar of an effective democracy. At the Covid inquiry, ministers are (for the first time) being held to account for their decisions, unable to avoid difficult questions by PR tricks or bluster and confronted with facts when they lie.
It’s notable that Shakespeare put his attack on lawyers into the mouth of one of Henry VI’s villains. As the US Supreme Court Justice John Paul Stevens noted: “Shakespeare insightfully realised that disposing of lawyers is a step in the direction of a totalitarian form of government.”
Sam Fowles is a barrister, author, and columnist. He is on X @SamFowles